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 OCCASIONAL PAPERS 
 AND ADDRESSES 
 
 OF 
 
 AN AMERICAN LAWYER
 
 THE MACMILLAN COMPANY 
 
 HEW YORK • BOSTON • CHICAGO • DALLAS 
 ATLANTA • SAN FRANCISCO 
 
 MACMILLAN & CO., Limited 
 
 LONDON • BOMBAY • CALCUTTA 
 MELBOURNE 
 
 THE MACMILLAN CO. OF CANADA, Ln>. 
 
 TORONTO
 
 OCCASIONAL PAPERS 
 AND ADDRESSES 
 
 OF 
 
 AN AMERICAN LAWYER 
 
 BY 
 HENRY W. TAFT 
 
 OF THE NEW YORK BAR 
 
 THE MACMILLAN COMPANY 
 1920 
 
 All rights reserved
 
 Copyright, 1920, 
 By THE MACMILLAN COMPANY 
 
 Set up and printed. Published, May, 1920
 
 LIBRARY 
 UNIVERSITY OF CALIFORNIA 
 
 SANTA BARBARA 
 
 INTRODUCTION 
 
 The fugitive papers and addresses contained in this 
 volume are the by-product of a busy professional life. 
 They were prepared during the last decade; and yet 
 the march of events has been so rapid that little more 
 than a historic interest now attaches to the subjects 
 they deal with. Their publication in a book was 
 suggested by the difficulty I have encountered in 
 collecting addresses of my father delivered three- 
 quarters of a century ago. Aside from the desire to 
 put in a permanent form the results of some labor, I 
 have some hope that the publication of the contents 
 of this volume may have some effect upon the younger 
 members of the legal profession in stimulating them 
 not only to greater effort in promoting the effective 
 administration of justice, but also to a more active per- 
 formance of the duties of citizenship. 
 
 The pursuit of an absorbing profession in a metro- 
 politan city leaves little time for the indulgence of 
 tastes in the fields of general culture. The law is 
 such a jealous mistress that she does not suffer gladly 
 even dilettante ramblings in art or science or litera- 
 ture. If a lawyer does disentangle himself from the 
 phylacteries of a system of law and procedure whose 
 practice frequently tends to a narrowness of vision, 
 he quite naturally turns to some phase of public af- 
 fairs, and, moreover, as I have pointed out in these 
 papers, a sense of public duty ought to press him, more 
 than those engaged in other pursuits, in that direction. 
 But the complexities of modern existence in America
 
 vi INTRODUCTION 
 
 militate against actual office-holding by a lawyer. An 
 interruption of professional activities is generally det- 
 rimental. There are so many competent lawyers that 
 there is little difficulty in replacing those who forsake 
 for politics their practice at the bar ; and a lawyer who 
 yields to the allurements of public life by accepting 
 office generally finds that the political prestige he 
 gains is of little practical use and that on returning 
 to the law he must make new professional connections. 
 In England the case is quite different and leaders of 
 the bar may continue to practice their profession while 
 they engage in parliamentary activities. 
 
 To participate in partisan politics in a great city 
 like New York, and, at the same time, build up and 
 keep together a law practice, is most difficult. It is 
 surprising how few men of real talent have performed 
 the double role of lawyer and politician. This always 
 becomes manifest when the state or federal appointing 
 power seeks to fill vacancies on the bench. Lawyers 
 of eminent qualifications for such positions are numer- 
 ous, but to find those who are politically anything more 
 than ciphers is most difficult. And yet it ought to be 
 possible to maintain a first-rate position at the bar 
 and at the same time acquire an influence in politics of 
 sufficient importance to enable a lawyer to contribute 
 something to the elevation of the tone of our public 
 life. By training, environment and aptitude, lawyers 
 are usually well equipped to engage in political activi- 
 ties, and if circumstances do not permit them to hold 
 office, at least they may and ought to devote a substan- 
 tial part of their time to the discharge of the duties 
 and responsibilities of citizenship. Conspicuous ex- 
 amples show that this can be done without detriment 
 to professional success. The career of Mr. Elihu Root 
 is a striking illustration. No member of our bar de-
 
 INTRODUCTION vii 
 
 voted himself more assiduously to the practice of his 
 profession until after he became fifty-five years of 
 age, when he entered Mr. McKinley's Cabinet. With 
 the exception of a brief period when he was United 
 States Attorney for the Southern District of New 
 York, he had for many years, without holding office 
 of any kind, kept so closely in touch with political and 
 party affairs as to be a factor whom leaders of party 
 organizations could not afford to ignore. 
 
 I am led by this comment on Mr. Root's career to 
 advert to the efforts of lawyers from other parts of 
 the country who have achieved national fame in pub- 
 lic life and have presumed upon the reputation thus 
 acquired to enter the ranks of the working bar of New 
 York City. A few have succeeded, — if success con- 
 sists in making adequate incomes through connections 
 formed on account of their prestige; most, however, 
 have failed, and to their bitter disappointment. That 
 they should attain at the numerous and competent bar 
 of a great city a position commensurate with a repute 
 acquired in other fields, has been generally shown to 
 be impossible, and when the glamour attaching to pub- 
 lic office has — as it generally has — become dimmed, the 
 exotic lawyer and the retired statesman either must 
 content himself with an obscurity that irks, or return 
 to the field of his earlier activities. 
 
 In an address to the students of the Harvard Law 
 School printed in this volume, I attempted to point 
 out some of the conditions under which the modern 
 practice of the law must be conducted. In thirty-eight 
 vears of observation I have seen the most radical 
 changes. In my early days at the bar the leaders were 
 great advocates. Indeed, forensic power and its ha- 
 bitual exercise in the trial of great causes of all kinds, 
 combined with force and elevation of character, were
 
 viii INTRODUCTION 
 
 the qualities esteemed to be necessary for leadership. 
 From its foundation in 1870, the presidency of the 
 Association of the Bar of the City of New York was 
 the blue ribbon of professional life, and for more than 
 thirty years it was awarded to men eminent as advo- 
 cates. Thus we had a long line of men of the highest 
 distinction such as William M. Evarts, Stephen P. 
 Nash, Francis N. Bangs, James C. Carter, William 
 Allen Butler, Joseph H. Choate, Frederic R. Coudert, 
 Wheeler H. Peckham, Joseph Larocque, John E. Par- 
 sons, William G. Choate and Elihu Root. In later 
 years, however, we find the Presidents of the Bar 
 Association distinguished not so much for their foren- 
 sic talent or their frequent appearance as advocates, 
 as for the esteem in which they were held for qualities 
 of leadership based upon personal character, general 
 legal attainments, and occasional appearances in the 
 trial of the great litigations such as have become in the 
 last generation more frequent in settling the relations 
 between corporate interests and the agencies of gov- 
 ernment. It may be said with certitude that conspicu- 
 ous talent in advocacy, prestige on account of reputed 
 ability in obtaining results in court, and vogue among 
 the lay public, have ceased to play such an important 
 part in determining leadership at the bar as they did 
 forty years ago. 
 
 It is perhaps due to the tradition surviving from the 
 old order that there commonly prevails among the lay 
 public an idea that a lawyer's experience cultivates an 
 aptitude for public speaking on general topics. But, 
 while generalization where so many exceptions must 
 be made is dangerous, I have observed that the pur- 
 suit of advocacy in the courts, particularly under mod- 
 ern conditions, while it leads to compression and 
 lucidity of statement, tends to the impairment rather
 
 INTRODUCTION ix 
 
 than the cultivation of the art of oratory. In jury- 
 trials eloquence is frequently an effective weapon, but 
 more and more in this intensely practical age un- 
 adorned statements of the facts and unemotional stim- 
 ulation of the reason have taken the place of rhetorical 
 flights and emotional appeals. The modern lawyer is 
 continually making points, and lucid exposition and 
 persuasive logic have more effect than flights of fancy, 
 rhetorical decoration, and even humor and wit. The 
 modern judge has little time to listen to anything 
 except a naked discussion of the facts and the law, and 
 even jurymen do not now tolerate such extended ora- 
 torical efforts as those we read of in the early history 
 of the profession. 
 
 On an occasion where there is not to be an orderly 
 treatment of some serious subject (I have included in 
 this collection several addresses on such occasions 
 which I fear may seem rather sporadic, — where, I 
 say, speakers may select their own subjects, or con- 
 fine themselves to none, grace in delivery and expres- 
 sion, lightness of touch, play of the imagination and 
 humor or pathos, will make an appeal, and a modern 
 lawyer does not find himself qualified by habit for an 
 effective performance. And while brilliant speakers 
 there have been among the members of the bar, such 
 men, for instance, as Mr. Evarts, Mr. Choate, Mr. 
 Hedges and Mr. Beck, they have possessed the spark 
 of oratory not because they were lawyers but in spite 
 of that fact. 
 
 I have to some extent touched upon the cause of the 
 changes which have thus affected the lawyer. At this 
 point it is sufficient to indicate that it is undoubtedly 
 in large part due to the evolution (I might almost say 
 revolution), which has been in progress during the last 
 generation in certain phases of our national life. The
 
 x INTRODUCTION 
 
 most important contributions of the legal profession 
 to the recent development of the economic, industrial 
 and political life of the country have been those which 
 have been constructive ; that is, those which have aided 
 in putting into practical operation within the law, 
 great conceptions of the modern leaders of finance and 
 industry. However necessary and however inevitable 
 litigations commanding the services of the ablest law- 
 yers may still be, most controversies in court do not 
 directly contribute much to human progress. In the 
 intensely practical transformation this country has ex- 
 perienced in the last generation, litigation has come to 
 be frequently viewed by the public, especially that part 
 of it which is engaged in great business enterprises, as 
 an obstacle to enterprise. It is no doubt due to this 
 fact that leaders of the bar have, much less than for- 
 merly, sought employment in active litigation and have 
 confined themselves, where they do appear as advo- 
 cates, to the great causes which are incident to the 
 enforcement of recent statutory enactments relating 
 to our economic and commercial development, such, for 
 instance, as the Anti-Trust Law. 
 
 But it is not alone the practical effect of such con- 
 ditions as these that has affected the legal profes- 
 sion in particular and the administration of justice 
 in general. The public mind during the last genera- 
 tion has been intensively occupied with efforts to solve 
 pressing problems of sociology. This condition pro- 
 duced one of the most resolute assaults in our history 
 on our judicial system. There was little more of an 
 armament for the attack than an appealing phrase. 
 " Social Justice" which had no more practical value 
 as a basis for an ordered system of law than the ele- 
 vated sentiments of the ephemeral constitution of the 
 French Revolutionists, threatened to dislodge some of
 
 INTRODUCTION xi 
 
 the keystones in parts of the structure of our judicial 
 system which, from the standpoint of both the pe- 
 culiar character of our polity and its historical de- 
 velopment, were characteristically American. But 
 such a revolt was not new in our history. Indeed, it 
 began early in the history of our government. Essen- 
 tially it was a modern phase of a tendency in all gov- 
 ernments based on universal suffrage to become pe- 
 riodically impatient of restraints imposed by funda- 
 mental law. If its avowed purpose to destroy the in- 
 dependence of the judiciary had succeeded, it is not 
 probable that our federal government would long 
 have endured, nor would the system of common law 
 administered in the state and federal courts long have 
 continued to protect the rights of the individual citi- 
 zen. 
 
 The recall of judges and the recall of decisions could 
 never have been made to occupy the public mind, or 
 to become a menace, if it had not been advocated by 
 one of the most extraordinary politicians and states- 
 men of his day. Neither the Republican nor the 
 Democratic party would have had the hardihood to 
 adopt as a basis for a political contest such a radical 
 political doctrine. Jefferson's attacks were chiefly di- 
 rected at the power of the federal judiciary. It is 
 doubtful whether even he would have taken the po- 
 litical risk of a campaign upon a platform seeking to 
 destroy the judiciary department as an independent 
 organ of both the state and the federal government, 
 by subjecting judicial decisions to the test of a refer- 
 endum. 
 
 Whenever attacks upon the courts have been made 
 in this country, they have resulted from a sort of 
 straining against the constitutional fetters whose pur- 
 pose has been to prevent inter-departmental usurpa-
 
 xii INTRODUCTION 
 
 tions or to limit the sovereignty of the states ; or they 
 have been a mere inarticulate manifestation, common, 
 as I have said, in democracies, of impatience at re- 
 strictions imposed upon the political action of the 
 people. 
 
 Those who seek to affect the independent character 
 of the judiciary branch of the government have not 
 generally realized that their attack is upon the fea- 
 ture of our federated system which contributes more 
 than any other to its stability, and without which it 
 probably would not have survived the first century of 
 its existence. In the case of Mr. Roosevelt, if the 
 problem had been merely a juridical one, involving 
 general principles of jurisprudence, it would not have 
 been surprising if he had failed fully to grasp its im- 
 portance, for his education as a lawyer was not much 
 more than superficial, and his experience and tempera- 
 ment led him to view public questions from a view- 
 point quite different from that of a trained lawyer. 
 But the weakening of the judiciary department as an 
 independent organ of government would affect the sys- 
 tem of checks and balances by which the framers of 
 the Constitution sought to establish an equilibrium 
 among the three departments of the Federal Govern- 
 ment, and between the enumerated powers of the cen- 
 tral government on the one hand and the reserved pow- 
 ers of the several states on the other; and a correct 
 forecast of its probable effect upon our institutions 
 required examination of and reflection upon the history 
 of the proceedings of the Constitutional Convention of 
 1787, the state conventions which ratified the Consti- 
 tution, the writings of Hamilton, Madison and Jay, 
 and the opinions of Marshall. Both because of Mr. 
 Roosevelt's position as an American historian and a 
 man of letters, and because he had been for years a
 
 INTRODUCTION xiii 
 
 practical statesman observing the workings of the fed- 
 eral system, one would have expected that he would 
 give decisive weight to historical considerations and 
 would realize the vital importance of maintaining the 
 delicate inter-departmental balance in the federal sys- 
 tem, and of preventing the co-existing but reciprocally 
 exclusive sovereignties of the central government and 
 the states from getting into a condition of unstable 
 equilibrium. 
 
 But while Mr. Roosevelt was a man of the highest 
 impulses, he did not always, and especially when he 
 was moved by a sense of some immediate injustice, 
 take account of consequences or permit the intrusion 
 of cooling reflection based upon the teachings of expe- 
 rience; and, as I have intimated, at no time in his 
 career did he have much sympathy with anything that 
 was legalistic. He continued to the end of his life to 
 view slightingly what he characterized as "law hon- 
 esty." 
 
 I remember when Mr. Roosevelt and I were studying 
 law at the Columbia Law School in 1881, Professor 
 Theodore W. Dwight on one occasion announced with 
 didactic emphasis, some familiar and long-established 
 proposition of law. A tow-headed young man arose 
 in the back of a crowded class-room and with a trace 
 of pugnacity said, "Professor Dwight, is that the 
 law?" "It is, sir," came back with the verbal rapid 
 fire of the famous Professor, so familiar to his stu- 
 dents ; to which Mr. Roosevelt had the last word in an 
 impulsive staccato "Well, it ought not to be." When, 
 more than a quarter of a century later the idea of 
 social justice became a favorite topic of a school of 
 economists, a similar impulse seized upon Mr. Roose- 
 velt's imagination, and with characteristic impetu- 
 osity he sought to better the condition of the people
 
 xiv INTRODUCTION 
 
 by an emasculation of the judiciary system, without 
 giving due weight to the broader question of its effect 
 upon the entire governmental structure. Further- 
 more, its advocacy had certain alluring political advan- 
 tages. 
 
 But these facts do not completely account for the 
 advocacy by Mr. Roosevelt of the recall. Strange as 
 it may seem, he sympathized with the fear, somewhere 
 expressed by Mr. Jefferson, that the system of govern- 
 ment established by our Constitution would, like an 
 unwound clock, run down. Both of these statesmen 
 thought that the checks by which the powers of the 
 three departments of government were to be sustained 
 in even balance might result in the paralysis of all 
 effective governmental power. While Mr. Roosevelt 
 generally had little sympathy with Mr. Jefferson in his 
 political philosophy, he did believe that the power of 
 the executive ought to be co-extensive with any emer- 
 gency calling for its exercise. In other words, while 
 he would perhaps not have formulated the dogma 
 quite so plainly, he nevertheless in practice was 
 strongly inclined to act upon the theory that the pow- 
 ers of the executive and the administrative branches 
 of government, were to be exercised at the discretion 
 of the executive to any extent necessary for emergent 
 purposes, except so far as they were expressly limited 
 by constitutional or statutory provision. He believed 
 that by implication the executive was vested with 
 plenary power to conduct all governmental operations, 
 except so far as such power was limited by express 
 grant to the legislative branch. 
 
 Now, a statesman entertaining such views as to the 
 character of our governmental structure could hardly 
 be expected to be deeply impressed with the necessity 
 of maintaining the balance among the three depart-
 
 INTRODUCTION xv 
 
 ments of government. Temperamentally, if not by 
 conviction, Mr. Roosevelt believed (and there is a 
 large measure of truth in this view), that the legisla- 
 tive department, consisting of two houses, frequently 
 of opposite political parties, and also with equal fre- 
 quency failing to cooperate with the executive, was 
 not an efficient organ of government. His vigor and 
 extraordinary determination to accomplish results 
 which he believed would be for the good of the people, 
 led him, therefore, to the belief that only by the expan- 
 sion of the administrative power could the government 
 perform its proper function; and it is not altogether 
 surprising that he should have failed, under the influ- 
 ence of the desire to improve the condition of the less 
 fortunate in life, to yield to the temptation of advocat- 
 ing a diminution of the powers of the judiciary de- 
 partment, even though it had only a sort of veto power 
 and could perform no affirmative function of govern- 
 ment. In the last years of his life reflection and the 
 recession of the progressive wave, seem to have led 
 him to abandon the views which he had so vigorously 
 pressed; at least he ceased to make them a guide for 
 his political conduct. 
 
 I did not intend to be led into an estimate of Mr. 
 Roosevelt's character and public career. But disap- 
 proval of his course on the recall ought not to permit 
 us to forget the services of permanent value which he 
 rendered to his country. I would not attempt to sum 
 these all up ; the task would be too long for this intro- 
 duction. I will content myself by adverting to two 
 things which he contributed to our national life and 
 which were of inestimable value. 
 
 The first of these was the interest in public affairs 
 which he was, through his boundless enthusiasm, able 
 to arouse among multitudes of his countrymen, who
 
 xvi INTRODUCTION 
 
 through lethargy or indifference, had failed to pay the 
 price which the successful maintenance of a democratic 
 form of government inexorably demands ; that is, some 
 affirmative effort and some sacrifice of personal in- 
 terest and comfort, for the benefit of the general wel- 
 fare. 
 
 Of the second great accomplishment of Mr. Roose- 
 velt there is evidence in concrete results. I refer to 
 what he did, not only in compelling great business com- 
 binations to obey the law, but in the far more subtle 
 and difficult task of elevating the ethical standards 
 which great business organizations, particularly those 
 in corporate form, have adopted as a guide in the con- 
 duct of their affairs. Mr. Roosevelt's distinction and 
 his greatest value to his country lay in his ability as 
 a crusader against dishonest, selfish and unpatriotic 
 methods of doing business, which threatened at one 
 time by their excesses to convert the body politic into 
 what would have been measurably near a plutocracy. 
 Largely through his leadership, the danger of such a 
 result was permanently removed and principles of jus- 
 tice and honesty and moderation in business methods 
 were firmly indoctrinated. I have recently been read- 
 ing some of the correspondence of von Bernstorff with 
 the German Foreign Office before we entered the war. 
 The German Ambassador had had ample opportunities 
 for many years to observe the movement of public af- 
 fairs in this country. We might be prepared to have 
 the ruling caste in Germany, while enjoying the profits 
 of their cartels and other forms of monopolies, loftily 
 prate about the indifference of the American people to 
 anything but money-making, but it is amazing that the 
 German Ambassador, witnessing in this country, as he 
 did, the most extraordinary revolution of modern times 
 in business methods and morals, brought about largely
 
 INTRODUCTION xvii 
 
 through the leadership of Mr. Roosevelt, and unques- 
 tionably supported by the vast majority of the Ameri- 
 can people, should with seeming honesty, entertain the 
 view that the Americans cared for nothing but money- 
 getting. 
 
 Some of the subjects dealt with in this volume have 
 aroused more or less bitter controversy. If any value 
 attaches to my treatment of them it is because I wrote 
 before discussion had progressed far, and in a more 
 or less impartial way attempted to inform the public 
 concerning subjects which at the time I had, perhaps, 
 studied more than most people. This is particularly 
 so of the papers relating to the League of Nations, the 
 Treaty in the Senate, the Railroads and Bolshevism. 
 The paper on State Control of Navigable Waters was 
 prepared as a result of a litigation relating to a sub- 
 ject of vast importance to the people of the United 
 States, concerning which, however, the public at large 
 is very inadequately informed. This chapter will 
 naturally have an interest largely for professional 
 students of the subject. At some time, however, 
 the people of the country will perceive that the im- 
 provement of its waterways and waterpowers has 
 a most vital connection with their personal comfort 
 and their business interests, and they will insist that 
 the relation between public control or supervision and 
 business enterprise seeking to improve the natural re- 
 sources of the country, shall be adjusted in some work- 
 able fashion. 
 
 I cannot flatter myself that my views as to the solu- 
 tion of the Railroad problem confronting this country 
 after the war have had much influence. But that may 
 with equal truth be said of the numerous plans pro- 
 posed to Congress as a basis of legislation, since the 
 views of no single individual or group of individuals,
 
 xviii INTRODUCTION 
 
 have alone contributed much to the solution of the 
 difficult and complicated economic and political ques- 
 tion which was involved. 
 
 There are a number of reforms of our law which 
 ought to be made if its administration is to be kept 
 abreast of the needs of modern civilization. Largely 
 through inertia we permit a system acknowledged to 
 be defective in many respects to remain unreformed. 
 Reiteration of this fact is necessary if an impression 
 upon the public mind is to be made. It is amazing, 
 for instance, that the public who witness in our courts 
 the application every day of some of our artificial, if 
 not ridiculous rules of evidence, do not rise en masse 
 and insist that they be changed. And yet they remain 
 indifferent. We are sadly in need of a modern Jeremy 
 Bentham, who, even if he make use of exaggeration 
 and ridicule, would arouse the public to a realization 
 of some of the practices now prevailing, by which the 
 pursuit of truth is embarrassed. This and other re- 
 forms are suggested in my annual address to the New 
 York State Bar Association, which was designed to 
 arouse the American lawyer to a realization of the re- 
 sponsibility resting upon him on account of the public 
 function which members of the bar must perform if 
 they would be good American citizens. At the annual 
 dinner of the Association I discussed freedom of 
 speech in this country and the danger confronting us 
 that minorities, and not majorities, should rule. 
 
 The paper on Aspects of Bolshevism and American- 
 ism was the result of a summer's study of such orig- 
 inal material as could be obtained from all sources con- 
 cerning the Russian situation, much of which consisted 
 of inflammatory books and literature purchased at the 
 Rand School. Only from such sources did it seem to 
 be possible to become possessed of the Russian situa-
 
 INTRODUCTION xix 
 
 tion from the standpoint of the Marxian Communists, 
 who now go under the name of Bolshevists. 
 
 The paper on the Tobacco Trust decisions resulted 
 from the trial and finally the argument in the Supreme 
 Court of certain questions under the Fourth and Fifth 
 Amendments of the Federal Constitution concerning 
 unlawful searches and the right of an individual to 
 be free from being compelled to incriminate himself. 
 The rule laid down by the Supreme Court in the Hale 
 and McAlister cases as a result of this litigation, en- 
 abled the government to obtain evidence upon which 
 most of the prosecutions under the Anti-Trust Law 
 were ultimately commenced and carried to completion. 
 
 I have not thought that any publication that I might 
 make would be complete without some adequate ref- 
 erence to the activities of the bar of this country in 
 contributing to the enforcement of the Selective Serv- 
 ice Law during the war. Credit has been accorded to 
 the lawyers of the country in formal communications 
 from government officials. But I do not believe that 
 the members of the legal profession of the entire coun- 
 try have received their due meed of praise for the ex- 
 tent and value of the service they performed in the 
 creation of our army of four millions of men, without 
 unnecessary impairment of the industrial efficiency of 
 the country, or undue disturbance of social and family 
 life. That task was of infinite difficulty. No other 
 nation of the world was ever confronted with such a 
 complicated undertaking. The credit due to General 
 Crowder and the office of the Provost Marshal General 
 for the genius which was displayed in conceiving the 
 plan of the Selective Service Law has never been suffi- 
 ciently accentuated. The manner in which the law was 
 executed was no less remarkable. And it is equally 
 certain that unless the services of the entire American
 
 xx INTRODUCTION 
 
 bar had been placed at the disposition of the Govern- 
 ment in advising registrants concerning their rights 
 and obligations, and in aiding them in the preparation 
 of the complicated questionnaires, through which the 
 system was put into effect, confusion would have ruled 
 from the outset. Both the President and the Provost 
 Marshal General early perceived that an opportunity 
 was afforded to the legal profession as a class to ren- 
 der a highly patriotic service, and they immediately 
 appealed to them to put themselves at the disposition 
 of the governmental officers. This was done promptly 
 and effectively ; and it is no more than due to the pro- 
 fession at large that publicity should be again given to 
 the fact. 
 
 The chapter on the League of Nations, as well as the 
 contributions to "The Covenanter" printed as a part 
 of this volume, were the result of an early study of 
 the Covenant of the League before the discussion be- 
 came affected by the extraordinary bitterness with 
 which both advocates and opponents of the League 
 ultimately attempted to buttress their contentions. 
 Vigor of assertion came to assume more importance to 
 some speakers than the soundness of their reasons. 
 Arguments of the most tenuous character were put 
 forth with ill-timed vigor and gross exaggeration. De- 
 baters did not consider whether their objections would 
 ever have any practical importance. The controversy 
 had many points of similarity to the discussion which 
 raged in the state conventions which considered our 
 Federal Constitution in 1788 and 1789. 
 
 Objections to our Constitution, asserted by its die- 
 hard opponents to be of the most vital importance, 
 were based upon forebodings as to perils then thought 
 to be certain to ensue; but most of them have never 
 since had any importance except to illustrate how the
 
 INTRODUCTION xxi 
 
 bitterness of controversy may stimulate the play of 
 the imagination. In the debate concerning the League 
 of Nations, most fantastic arguments and meticulous 
 criticisms have assumed for the moment substantial 
 importance, and responsible statesmen have not hesi- 
 tated to indulge in the most extravagant flights of 
 fancy, such, for instance, as that the League of Na- 
 tions will result in the domination of the world by the 
 colored races, or by the Pope ! It is indeed unfortu- 
 nate that the adoption of a measure of such vast im- 
 portance to the entire world, should have been im- 
 perilled by a degeneration into a bitter argument upon 
 what is largely a matter of form ; and the fault in this 
 respect has not been by any means on one side alone. 
 I cannot, of course, attempt here to discuss the merits 
 of the controversy, but I am tempted to advert to a 
 single point. I have always thought that the discus- 
 sion concerning Article X had assumed an importance 
 far beyond what it deserved. In view of the other 
 articles of the Covenant, that Article is largely a pro- 
 vision for an emergency, and a remote one. It is 
 hardly conceivable, or to put it less strongly, only in a 
 very rare case would it happen, that there would be 
 an external aggression by one country upon the terri- 
 torial integrity or political independence of another, 
 without some antecedent inciting cause. Now, if such 
 cause existed as a matter in dispute, it must be pre- 
 sumed that under the machinery provided for in Ar- 
 ticles XII, XIII, XV and XVI, it would have been 
 submitted to arbitration or mediation, hostilities being 
 withheld in the meantime, and that for a failure to 
 comply with the provisions of those articles the eco- 
 nomic boycott provided for in Article XVI would have 
 gone into effect. Only, therefore, in the case of a 
 nation failing to observe the covenants contained in the
 
 xxii INTRODUCTION 
 
 Articles referred to, and thus giving to all the other 
 member nations under the provisions of Article XVI 
 a cause of war, can it be supposed that the provision 
 of Article X would come into operation. That Ar- 
 ticle is necessary for such an exigent situation, but 
 that such a situation will ever arise is extremely im- 
 probable. And yet, about the provisions of that Ar- 
 ticle more than of any other has the controversy raged. 
 
 I have included in this collection an appreciation of 
 John L. Cadwalader, — a figure of distinction in the cul- 
 tural life of New York City. He possessed a unique 
 personality. He was a gentleman of the old school, 
 and yet in his keen perception of recent developments, 
 social, political and professional, he was a modern of 
 moderns. If there be American aristocrats he was 
 one by birth and association, but he had an ill-con- 
 cealed contempt for those who claimed social or other 
 distinction except for worth. 
 
 In epistolary literature Mr. Cadwalader might have 
 rivaled Horace Walpole, with less vitriol; in public 
 life he would have been a great diplomatist, looking 
 at world affairs through an international medium to 
 which wide travel and his experience early in life as 
 Assistant Secretary of State accustomed him. He 
 loved art in its various forms and satisfied his craving 
 by surrounding himself with beautiful things which by 
 his will he gave to the public. But little that he wrote 
 was preserved and he hated the histrionic display of 
 politics; he was content to forego the fame which his 
 talents and his character would have assured him. 
 
 In conversation Mr. Cadwalader had a pungent wit 
 and a delicate vein of satire, directed frequently at 
 manners in modern society offending against good 
 taste or sound morals. He was eminent in his pro- 
 fession. In subtlety in giving point to legal docu-
 
 INTRODUCTION xxiii 
 
 ments he exceeded any lawyer of my acquaintance. 
 He was a distinguished figure in the city of his resi- 
 dence, and I am glad to give permanent form to an 
 address which was delivered upon the occasion of the 
 presentation to Mr. Cadwalader's native city of Tren- 
 ton of a building for the public library for which he 
 had made provision before his death. 
 
 H. W. T.
 
 CONTENTS 
 
 PAGE 
 
 Introduction v 
 
 I. Address to the Harvard Law School Students, De- 
 livered in 1908 3 
 
 II. Some Responsibilities op the American Lawyer. 
 President's Address, Delivered Before the New 
 York State Bar Association, at Its Annual Meet- 
 ing, Held in New York City, January 16-17, 1920 23 
 
 III. The Bar in the War— Its War Committees and Its 
 
 Participation in the Enforcement of the Selec- 
 tive Service Law and Regulations. An Address 
 Delivered at the Annual Meeting of the New 
 York State Bar Association Held in New York 
 City, January 11-12, 1918, by Mr. Taft, Chairman 
 of the War Committee of the Bar of the City of 
 New York 53 
 
 IV. Report of the War Committee. Report Presented 
 
 by Mr. Taft, as Chairman of the War Committee 
 of the Association, at the Annual Meeting of 
 the New York State Bar Association Held in 
 New York City, January 17-18, 1919 .... 71 
 
 V. Aspects of Bolshevism and Americanism. Address 
 to the League for Political Education, Carnegie 
 Hall, New York City, December 6, 1919 . . • 
 
 VI. The League of Nations. Reprinted from a Series 
 of Articles Published in the New York Times of 
 March 24-25, and April 4, 1919 123 
 
 VII. Sovereignty, Constitutionality and the Monroe 
 Doctrine. Letters of Mr. Henry W. Taft. Re- 
 printed from "The Covenanter, An American 
 Exposition of the Covenant of the League of 
 Nations," Being a Series of Letters Written by 
 William H. Taft, George W. Wickersham, A. 
 Lawrence Lowell and Henry W. Taft After the 
 Covenant Had Been Revised. (Doubleday, Page 
 & Co., 1919) 165 
 
 95
 
 CONTENTS 
 
 PAGE 
 
 VIII. The Treaty in the Senate. Paper Reprinted prom 
 an Article Published in the New York Times op 
 May 30, 1919 185 
 
 IX. What Is to be Done with Our Railroads? Re- 
 
 printed prom Articles Published in the New 
 York Times op May 6-7, 1919 197 
 
 X. Recall op Decisions, a Modern Phase op Impatience 
 
 op Constitutional Restraints. Paper Read at 
 the Annual Meeting of the New York State Bar 
 Association Held in Utica, N. Y., January 24—25, 
 1913 219 
 
 XL State Control op Navigable Waters. Reprinted 
 
 prom Columbia Law Review for May, 1915 . . 253 
 
 XII. The Tobacco Trust Decisions. Reprinted prom the 
 
 Columbia Law Review of June, 1906 .... 277 
 
 XIII. An Address Delivered at the Annual Dinner of 
 
 the New York State Bar Association Held in 
 New York City, January 18, 1919 295 
 
 XIV. President's Address at the Annual Dinner op the 
 
 New York State Bar Association, January 17, 
 1920 301 
 
 XV. Address at the Dinner to Judge O'Brien. Remarks 
 of Mr. Tapt, Toastmaster, at the Annual Bar 
 Dinner of the New York County Lawyers' Asso- 
 ciation, Given in Honor op Hon. Morgan J. 
 O'Brien, February 26, 1916 309 
 
 XVI. Speech op Mr. Henry W. Taft Delivered Before 
 the American Chamber of Commerce in Paris, 
 France, July 4, 1912 317 
 
 XVII. An Appreciation op John L. Cadwalader. Paper 
 Read at the Opening op the Trenton Public 
 Library, April 6, 1915 325
 
 OCCASIONAL PAPERS AND 
 ADDRESSES OF AN AMERICAN LAWYER
 
 ADDRESS TO THE HARVARD LAW SCHOOL 
 
 STUDENTS 1 
 
 Gentlemen of the Harvard Law School: 
 
 Before passing to the main subject of my address, 
 I wish to make a few observations upon the work of 
 this school and, from the standpoint of a practitioner 
 trained under another system, to point out the good 
 which it and others like it are doing for the profession. 
 
 In the United States, almost to the middle of the 
 nineteenth century, methods for the study of law were 
 crude and unscientific. A knowledge of the law was 
 supposed to be picked up in lawyers' offices, with little 
 systematic instruction. The modern American law 
 school has been a development from this haphazard 
 method. The earliest law lectures in this country were 
 delivered by James Wilson at Philadelphia, and the 
 first of the series was listened to by President Wash- 
 ington and all of his cabinet ; but they would be found 
 by students of to-day too general to be of practical 
 benefit. The earliest law school of the modern type 
 was the one at Litchfield, Connecticut, which became 
 famous in the early part of the nineteenth century. 
 The Harvard Law School was founded, I believe, in 
 1817. It did not, however, become a serious institu- 
 tion until 1829, when Story became the Dane professor 
 at law. Other law schools followed, but it was not 
 until thirty years ago that the idea was generally ac- 
 cepted that a thorough, systematic training in a law 
 school was essential to a proper legal education. 
 There are now in existence in this country more than 
 
 i Delivered in 1908. 
 
 3
 
 4 PAPERS AND ADDRESSES 
 
 one hundred of such schools; and in not less than 
 eighteen states of the Union three years' preparatory 
 work is required for admission to the bar. 
 
 When it is considered that the science and history 
 of our jurisprudence have been developing and its 
 literature increasing for hundreds of years, it is clear 
 that its study should be systematic. If the law is to 
 retain its character as a learned profession, it must 
 be studied as a science, its relation to the social fabric 
 must be understood, and its ancient ideals regarded 
 with veneration. You will hear, and it cannot be 
 denied, that a practical knowledge of the law can only 
 be obtained by experience in a law office; but only in 
 an institution dedicated to scientific study and removed 
 from the distractions of active practice can the gen- 
 eral principles of our jurisprudence be mastered; and 
 without a sympathetic grasp of these, no man, whatever 
 his gifts, will imbibe the true spirit of the noble science 
 which we profess. 
 
 It would be foreign to the main purpose of this 
 address to enter upon a discussion of the admirable 
 system of instruction applied in this school ; but I can- 
 not refrain from mentioning one thing which I under- 
 stand has become a feature. That is the tendency of 
 your professors to give credit to the student not so 
 much for the correctness of his view of any particular 
 proposition, as to the character of his reasons for hold- 
 ing it. This is justified by practical experience. 
 Much of the time of every practicing lawyer is occu- 
 pied in supporting views which are ultimately declared 
 by the court to be untenable. Why, then, should a 
 student be expected always to be found on the right 
 side? It is true that many general principles of the 
 law are definitely settled; but concrete cases rarely 
 come within these principles, for in the complexity of
 
 HARVARD LAW SCHOOL STUDENTS 5 
 
 human affairs cases identical in their facts seldom 
 occur. It therefore happens that the task of the lawyer 
 and of the judge in most cases is to determine how 
 far the peculiar facts of a given case make a general 
 principle inapplicable and bring it within a modifica- 
 tion or an exception. It is not so much that the science 
 of the law is inexact as that human affairs continue to 
 present novel combinations and complications, and the 
 mind is taxed to determine how established principles 
 shall be applied to such new conditions. Dr. Johnson 
 recognized this when he observed that the law was that 
 science in which the greatest powers of understanding 
 were applied to the greatest number of facts. 
 
 And so you must not be discouraged if you find your- 
 self reaching wrong conclusions from seemingly sound 
 reasons, for that is what the best lawyers are con- 
 stantly doing. The advantage that we older lawyers 
 have is that we are better able to live down our errors. 
 It is related that Thurlow, when Lord Chancellor of 
 England, used to say of Loughborough, who also 
 ascended the woolsack: "That damned Scotchman has 
 the gift of gab, but he is no lawyer; in the House of 
 Lords I get Taffy Kenyon, or some one else who does 
 my dirty work, to start some law doctrine in such a 
 way that the fellow must get up to answer it and then 
 I leave the woolsack and give him such a thump in 
 the bread basket that he cannot recover his wind." 
 And yet the same Lord Thurlow, after he left the wool- 
 sack, found himself a subject of criticism equally in- 
 considerate. When chancellor, he had suggested to 
 Lord Eldon that a wooden machine might be invented 
 with which to draw bills and answers in chancery. 
 After he had ceased to be chancellor, a bill was drawn 
 against a friend of his and Thurlow advised him to 
 submit the answer to Eldon, who was then attorney
 
 6 PAPEES AND ADDRESSES 
 
 general. The latter found it so badly drawn that he 
 recommended that he employ some lawyer who under- 
 stood something about pleading to redraw it. Lord 
 Thurlow subsequently met Lord Eldon and said to 
 him: "So, I understand, you think my friend Mack's 
 answer won't do." "Do?" said he. "My lord, it 
 won 't do at all ; it must have been drawn by that wooden 
 machine which you formerly told me might be invented 
 to draw bills and answers. " " That is very unlucky, ' ' 
 says Thurlow, "and impudent, too, if you had known 
 the fact — that I drew the answer myself." 
 
 You should seek to cultivate in your studies accuracy 
 of observation, clearness of thought, precision of ex- 
 pression and a knowledge of the main principles of 
 law. These are necessary to the making of a good 
 lawyer, and with industry and patience and experience 
 are bound to bring success. But do not forget that 
 the practice of the law should be more than a mere 
 means of livelihood. In spite of its imperfections, 
 which must exist in any system for the conduct of 
 human affairs, our jurisprudence is probably as per- 
 fect a system as that which any civilization has pro- 
 duced ; and Burke spoke truly when he said that it did 
 more "to quicken and invigorate the understanding 
 than all the other kinds of learning put together." 
 Every lawyer may do something to preserve and im- 
 prove the principles and traditions of the law, and 
 particularly to keep them uncorrupted by and lifted 
 above the prevailing commercial spirit of the age. 
 And this leads me to speak of the present influence of 
 the profession in the community. 
 
 It has recently, and I fear with some justice, been 
 said that within the last quarter of a century the pres- 
 tige of the legal profession has declined. If this is 
 true, young men of your generation can address them-
 
 HARVARD LAW SCHOOL STUDENTS 7 
 
 selves to no more lofty purpose than the correction of 
 such an unfortunate situation. The tone of the com- 
 munity itself cannot but suffer if the influence of our 
 profession is impaired. While lawyers must look to 
 the profession for their support, they are no less 
 engaged in the working out of intellectual problems oi 
 permanent value to the community and in doing this 
 they have always been actuated by a high sense of 
 honor. 
 
 In 1820 Erskine said in the House of Lords : 
 
 "The habits of my professional life are, I hope, a useful 
 shield against every power whatsoever. I was bred in my 
 early youth in two professions, the characteristics of each 
 of which is honor; but after an experience of very many 
 years, I can say with truth that they cannot stand higher for 
 honor than the profession of the law. Amidst unexampled 
 temptations which, through human frailty, have produced 
 their victims, the greatest bulk of the members of it are sound ; 
 and the cause is obvious — there is something so beautiful and 
 exalted in the faithful administration of justice and depar- 
 ture from it so odious and disgusting that a perpetual monitor 
 is raised up in the mind against the accesses of corruption." 
 
 I believe that the same may be said with no less 
 truth of our profession at the present time; and yet 
 there is too much ground to suppose that a different 
 view is held in the community at large. The impair- 
 ment of the influence of any of the learned professions 
 cannot but do harm to society. This is especially true 
 of the law, because it comes into closer contact with 
 human affairs in a greater number of ways than any 
 other profession. In private affairs, the destruction 
 of confidence in the lawyers would go very far to affect 
 the individual citizen in his life, liberty and pursuit of 
 happiness ; but the most serious injury would be to the
 
 8 PAPERS AND ADDRESSES 
 
 state and to the public service. The integrity of our 
 institutions depends more upon the bar and the bench 
 than upon any other class of citizens; and the public 
 service has always been equipped by persons having a 
 legal education. Two-thirds of our Presidents, two- 
 thirds of our United States senators and more than 
 half of our representatives in the lower house of Con- 
 gress and our state legislatures have been lawyers ; and 
 this is no doubt due to the fact that the experience of 
 a lawyer is a fairly good substitute in our country for 
 the special training for government service in other 
 countries. 
 
 In 1830 de Tocqueville thus described the position 
 of lawyers in the United States: 
 
 "As the lawyers form the only enlightened class whom the 
 people do not mistrust, they are naturally called upon to 
 occupy most of the public stations. They fill the legislative 
 assemblies and are at the head of the administration. They 
 consequently exercise a powerful influence upon the forma- 
 tion of the law and upon its execution. . . . 
 
 "The lawyers of the United States form a party which is 
 but little feared and scarcely perceived, which has no badge 
 peculiar to itself, which adapts itself with great flexibility 
 to the exigencies of the time and accommodates itself with- 
 out resistance to all the movements of the social body. But 
 this party extends over the whole community and penetrates 
 into all the classes which compose it. It acts upon the coun- 
 try imperceptibly, but finally fashions it to suit its own 
 purpose." 
 
 This fairly describes the cause and the extent of the 
 former influence of the lawyers in the United States. 
 And why has this situation changed in recent years ? I 
 believe that the cause must be sought in conditions 
 created by the educational, social and industrial evolu- 
 tion of the last quarter of a century.
 
 HARVARD LAW SCHOOL STUDENTS 9 
 
 With the spread of liberal education among people 
 engaged in all kinds of business pursuits, the members 
 of the learned professions no longer enjoy distinction 
 on account of their intellectual equipment. The day 
 when a college education was regarded as a disqualifica- 
 tion for successful participation in business pursuits 
 has long since passed; and in many fields of activity 
 the lawyer now finds that he no longer enjoys the 
 intellectual supremacy which formerly in part ac- 
 counted for his position of influence. But unfortu- 
 nately the better education has not brought to the busi- 
 ness man a greater reverence for the spirit of the law. 
 On the contrary, he has been swept along by the march 
 of industrial progress and in the strife for tangible 
 results has become impatient both of the restraints of 
 law and of the lawyers who advise him that the re- 
 straints exist. The strenuous effort to construct and 
 acquire has sensibly impaired the Anglo-Saxon rever- 
 ence for the law because it is the law. The man of 
 thought and ideals has been subordinated to the man of 
 action; and this influence has created a tendency to 
 obliterate the line which should be maintained by law- 
 yers themselves between the business and the profes- 
 sional function. I doubt whether the great lawyers of 
 the past, like Webster, Clay, Binney, Sidney Bartlett 
 and Mason would to-day occupy the commanding posi- 
 tion which they enjoyed in their time. We have had 
 perhaps in our day as great lawyers, but their impor- 
 tance as citizens has been dwarfed by the greatness and 
 diversified character of modern intellectual activities 
 and industrial undertakings in which men of other 
 vocations, much more than formerly, have aroused the 
 interest of the general public. 
 
 Such men as 'Conor and Carter and Choate and 
 Evarts and Root and Johnson would have ranked in
 
 10 PAPERS AND ADDRESSES 
 
 legal ability and attainments with the greatest lawyers 
 of the nineteenth century, and yet their professional 
 distinction has not given them the same position of in- 
 fluence in the community. 
 
 But neither the wider spread of culture and educa- 
 tion, nor the increased diversity of intellectual activ- 
 ities, nor the great industrial development of recent 
 years fully accounts for the condition of the profession 
 which we are considering. More specific causes are to 
 be found for which the profession itself is responsible ; 
 and it is these to which I wish to direct your particular 
 attention, for with your generation must rest the cure 
 of any evils which they have produced. 
 
 Lawyers of to-day come in touch with business mat- 
 ters in a way formerly seldom witnessed. With the 
 recent growth of industrial and commercial enterprise, 
 it happens with too much frequency that lawyers who 
 have attained to a position of prominence and influ- 
 ence have permitted themselves to become financially 
 interested in projects committed to their professional 
 care. They have become directors of corporations for 
 which they are counsel ; they have performed the func- 
 tion of promoters; they have increasingly made their 
 compensation dependent upon the success of the busi- 
 ness concerning which they advise; they have prac- 
 tically converted their offices into business agencies 
 while holding themselves out to the public as practicing 
 lawyers. Indeed, to such an extent have these things 
 prevailed that many clients, finding lawyers of this 
 kind convenient business coadjutors, are not content to 
 employ a lawyer who confines himself to professional 
 advice and is not resourceful in working out purely 
 business projects. It has been quite a natural transi- 
 tion from this condition that many lawyers have left 
 the ranks of the profession and have become bankers
 
 HARVARD LAW SCHOOL STUDENTS 11 
 
 and railroad and corporate officers, or have engaged 
 in other commercial pursuits. I do not wish to be un- 
 derstood as implying that these facts necessarily indi- 
 cate anything improper or dishonorable ; but I am con- 
 fident that they disable a lawyer from exercising, ac- 
 cording to the best professional ideals, his proper func- 
 tion. A lawyer is not a safe counselor in a matter in 
 which his own financial interest is involved ; but far the 
 greater harm results from the confusion created in the 
 mind of the public between the professional and the 
 business function. If members of the bar who habit- 
 ually engage in directing business undertakings would 
 call themselves promoters or business men and not law- 
 yers, the injury would be minimized. But the tendency 
 is rather to gain for their undertakings the advantage 
 of the respectability and influence which attaches to 
 their character as lawyers. For the greater number 
 of representative lawyers scrupulously draw the line 
 and do not permit themselves to act in the capacity of 
 promoters or business men; and some of the largest 
 and most prosperous law firms in the city where I prac- 
 tice, believing that advice by a lawyer who is financially 
 interested is attended with great risk of mistake, in- 
 sist that no partner shall be financially interested in 
 any transaction with reference to which he gives pro- 
 fessional advice. It is also true that many of the 
 wisest business men differentiate between the business 
 and the professional side of a question and seek a law- 
 yer who will confine himself strictly to advice as to the 
 law. There are, however, many conspicuous excep- 
 tions to these salutary rules. Fortunately, lawyers 
 who mix business enterprise with law practice do not 
 hold a commanding position in the profession, but the 
 harm comes from the fact that the same discrimina- 
 tion is not generally exercised by the lay community.
 
 12 PAPERS AND ADDRESSES 
 
 In this connection it is pertinent to say that it has 
 now become a common, if not a universal, custom for 
 railroad companies and great industrial combinations 
 as well, to employ attorneys or counsel upon an annual 
 salary, in return for which they devote themselves 
 exclusively to the business of their clients. While the 
 tendency arising from the devotion of a lawyer to a 
 single interest may be to create a bias, I can give per- 
 sonal testimony of the fact that many salaried counsel 
 of great corporations are men of the highest personal 
 character and legal attainments, and I would not re- 
 flect upon them as a class. Nevertheless, it is inevit- 
 able that when a lawyer withdraws from general prac- 
 tice he ceases to exert among the members of his pro- 
 fession so great an influence as those who have retained 
 their professional independence; and an attorney in 
 the employ of a corporation, however worthy he may 
 be, is classed by the public not so much as a lawyer 
 as an employee of the corporation, and it results that 
 the penalty for corporate sins is sometimes visited 
 upon him. When it is considered that corporations 
 seek the best available legal talent and that the number 
 of salaried counsel is a very appreciable proportion of 
 the best practicing lawyers, the effect upon the stand- 
 ing of the whole body of lawyers becomes manifest. 
 
 I would not be understood as saying that in the great 
 industrial development of the modern day a lawyer 
 who has business aptitude is not a more valuable ad- 
 viser than one who has only legal ability; for that 
 would not be stating the fact. Such a lawyer can ad- 
 vise a business client more sympathetically, and conse- 
 quently more usefully, than one who has confined him- 
 self strictly to questions of law. Indeed, more than 
 ever before, the correct application of legal principles 
 to the novel problems presented by the great commer-
 
 HARVARD LAW SCHOOL STUDENTS 13 
 
 cial and industrial development of the last twenty-five 
 years is dependent upon some knowledge of the busi- 
 ness conditions to which they are to be applied. One 
 virtue of our system of law lies in the flexibility with 
 which it adjusts itself to the development of human 
 affairs, and at no previous time has this been so much 
 called into requisition. If the law is not quick to re- 
 spond and apply itself to the combinations and com- 
 plexities of modern industrial and commercial develop- 
 ment, it will not adequately perform its most useful 
 function. But it is not necessary that a lawyer should 
 himself become involved in business ventures in order 
 to apply the principles of the law to modern problems ; 
 and it would seem just as incongruous as it ever was to 
 see great leaders of the bar like James C. Carter, or 
 Joseph H. Choate, or John G. Johnson acting the part 
 both of legal advisers and of promoters in great busi- 
 ness enterprises. 
 
 We are next concerned with what is called the corpo- 
 ration lawyer. The term as popularly used has become 
 an opprobrious epithet rather than a well-understood 
 definition; for it would be difficult to find in this 
 country a lawyer of standing who has not advised cor- 
 porations. When it is considered that ninety per cent, 
 of the business of the country is done by corporations, 
 it will readily appear that a large part of the law busi- 
 ness of the country must relate, directly or indirectly, 
 to their affairs. Unfortunately, however, there is too 
 frequently foundation for the charges which have been 
 made as to the abuses and dishonesty of corporate 
 management. Many lawyers have become so identified 
 with the interests of corporations the conduct of which 
 has given rise to such charges and have aided them to 
 such an extent in evading the law or in taking the 
 chances of extremely doubtful interpretations of it,
 
 14 PAPERS AND ADDRESSES 
 
 that there has been justly visited upon the lawyers 
 themselves the same condemnation that corporate mis- 
 conduct has aroused. It is to such members of our 
 profession that the words "corporation lawyers" in 
 their opprobrious sense should be applied; and it goes 
 without saying that as a class they have brought great 
 discredit upon the profession. 
 
 I should not fully cover this part of my subject with- 
 out mentioning the change in the social position of 
 members of the profession in their respective com- 
 munities, particularly in the great centers of popula- 
 tion. The accumulation of great wealth from sources 
 other than professional incomes enables some lawyers 
 to indulge in the accessories of sumptuous living; and 
 instances of this kind are numerous enough to create 
 an impression in the minds of the public that the habits 
 of the bar as a class are no longer characterized by 
 plain living and high thinking. It is no doubt true 
 that professional incomes of all kinds have greatly 
 increased; but lawyers as a class continue to work 
 hard, live well and die poor. Displays of individual 
 wealth have undoubtedly contributed in some measure 
 to lead the undiscriminating public to group the mem- 
 bers of the profession with those whose chief occupa- 
 tion is that of making money; and this impression is 
 accentuated by reckless newspaper statements of pro- 
 fessional incomes. Quite recently, for instance, a 
 newspaper article purporting to give notable fees re- 
 ceived by distinguished counsel, stated that one of the 
 most noted lawyers in the United States had received 
 for his services in the Income Tax case $200,000; and 
 I have his own word as authority for the statement that 
 his total fee was $30,000. This sort of exaggeration 
 is not discountenanced by some lawyers who, without 
 technically violating the professional tradition against
 
 HARVARD LAW SCHOOL STUDENTS 15 
 
 advertisement, do not discourage the appearance of 
 their names in the newspapers in connection with the 
 receipt of fabulous sums. Distinction at the bar is 
 sometimes legitimately enhanced by newspaper com- 
 ment ; but some of the most distinguished members of 
 the profession rarely figure in the newspapers and are 
 little known to the general public. Unfortunately, 
 there are charlatans in our profession, and the modern 
 newspaper affords them ample opportunity to bring 
 their names frequently before an undiscriminating 
 public ; and the factitious newspaper reputation of un- 
 worthy members of the bar has undoubtedly been one 
 of the causes which have contributed to lessen the in- 
 fluence of the body of its members as a moral and in- 
 tellectual force in the community. This same class of 
 lawyers also indulge in questionable methods for secur- 
 ing business and much might be said, if time sufficed, 
 upon this as one of the causes which has brought cer- 
 tain classes of lawyers into disrepute. We are all in- 
 terested to secure business ; and while there is perhaps, 
 nothing morally wrong in procuring clients by active 
 solicitation or by public advertisement, it is better that 
 these things should not be done. As Dr. Johnson 
 wisely said, "a man of sensibility would disdain to do 
 them," although he slyly added that he would have a 
 lawyer ''inject a little hint now and then to prevent his 
 being overlooked." 
 
 These are some of the things which have affected the 
 prestige of our profession. They are no doubt con- 
 fined to a relatively small portion of the entire mem- 
 bership of the bar. But the profession at large has 
 suffered from the conduct and tone of the minority 
 whose activities are more conspicuous though less 
 creditable. 
 
 I have not attempted to deal with another kind of
 
 16 PAPERS AND ADDRESSES 
 
 criticism of the bar because it has been encountered in 
 all ages. It has sprung oftentimes from prejudice and 
 ignorance. Sometimes, however, it has been based 
 upon real abuses or upon the failure of the law to 
 keep pace with the development of civilization. His- 
 tory and literature abound with disparaging criticism 
 of this kind. Even the mother of Hardwicke, the 
 greatest of England's Lord Chancellors, insisted that 
 her son should be apprenticed to an "honester trade" 
 than that of an attorney, although her husband, the 
 chancellor's father, had followed that profession. 
 
 The poet Coleridge, in "The Devil's Thoughts," 
 said: 
 
 "He saw a lawyer killing a viper 
 On a dunghill hard by his own stable; 
 And the devil smiled, for it put him in mind 
 Of Cain and his brother Abel." 
 
 In Jarndyce against Jarndyce and Bardell against 
 Pickwick, Dickens leveled his satire at real abuses, and 
 there is much of the same kind of criticism in Warren 's 
 "Ten Thousand a Year." 
 
 The trust reposed in a lawyer will always subject 
 him to temptations peculiarly difficult to resist, and so 
 long as human nature remains unchanged, individual 
 members of the bar will yield and the bar itself will in 
 some measure suffer. The immense increase in the 
 numbers of the profession in this country and the 
 greater value of the interests entrusted to their care, 
 have brought and will bring to public attention a 
 greater number of flagrant instances where members of 
 the bar have proved unworthy of their trust. But I 
 cannot deal with this condition, as I have intended to 
 confine myself to matters which relate not so much to 
 frailties of individual lawyers, as to the changes in
 
 HARVARD LAW SCHOOL STUDENTS 17 
 
 the profession wrought by the peculiar conditions of 
 social and business life of to-day. I will say, however, 
 that in spite of individual instances of dishonesty, I 
 am confident that the moral tone of the bar as a class 
 has not been lowered. Its members are inspired by 
 the same sense of justice and the same loyalty to their 
 clients as in the past. Indeed, I think the present 
 standards of propriety and morality will compare as 
 favorably as ever with those of other classes in the 
 community and particularly of business men. It still 
 remains the fact that the habit of fidelity to the in- 
 terests of the client, and the better understanding of the 
 duty imposed by the fiduciary relation, have a more 
 elevating influence upon the character of the lawyer 
 than the habit of the business man of making money 
 for himself alone, without the restraint imposed by a 
 sense of responsibility which usually springs from 
 being entrusted with the interests and the welfare of 
 others. 
 
 That a remedy exists for the condition I have men- 
 tioned I have no doubt ; and it is the rising generation 
 which must bring from the study of the law in such 
 institutions as this a determination to raise our pro- 
 fession above the demoralizing influence of commercial- 
 ism, and restore it to its former place of honor. The 
 highest ideals of professional conduct are to be ab- 
 sorbed from the study of the classics of the law. It is 
 from such study that you will receive your most lasting 
 inspiration to regard the law as a science and to stand 
 against any idea that its practice can be made a com- 
 mercial undertaking. But no lawyer should be con- 
 tent to confine his activities to the private practice of 
 his profession. He, more than any other member of 
 the community, owes it to his country to furnish an 
 example of the faithful performance of the duties of
 
 18 PAPERS AND ADDRESSES 
 
 citizenship. He should keep in touch with public life 
 and do his part to keep it on a high level of purity and 
 efficiency, for no one is better equipped for such service. 
 He should participate in all other forms of political 
 activity open to the citizen. And if he holds office, he 
 should remember that the public is his client and that 
 he cannot serve that client in any way so well as by 
 strict adherence to the best traditions of his own pro- 
 fession. 
 
 Rufus Choate, in an address delivered before this 
 law school in 1845, said that it had been the office of the 
 American lawyers of his day to interpret, administer 
 and maintain the constitutions of the country and that 
 they had thereby " shared in the dignity of founders 
 of states, of restorers of states, of preservers of states. 
 I said and I repeat that while lawyers, and because we 
 are lawyers, we are statesmen. We are by profession 
 statesmen. And who may measure the value of this 
 department of public duty ? ' ' 
 
 It may be that it requires to-day more initiative and 
 positive effort to perform the lawyer's duty as a states- 
 man, because we have passed that period where the 
 shaping of our form of government depended so much 
 on the interpretation of the fundamental law. The 
 epoch-making questions of constitutional limitations in 
 the settlement of which the great lawyers of the first 
 century of our government acted also the part of great 
 statesmen, no longer so frequently arise. 1 Until Mar- 
 shall, as a Justice of the Supreme Court, began his 
 career, the Constitution was no more a living organism 
 than the constitutions of Mexico or of some of the 
 Latin-American republics of South America, whose 
 mere words are equally admirable. An interpretation 
 
 i See, however, the important questions which have arisen since this 
 address was delivered and which are referred to in my address to the 
 New York State Bar Association, post, p. 23.
 
 HARVARD LAW SCHOOL STUDENTS 19 
 
 less statesmanlike than his might have made the clauses 
 of the Constitution little more than futile rhetoric. 
 While it is true that great constitutional questions 
 arise less frequently in the ordinary practice of a law- 
 yer than they did in the first half century of our history, 
 it is also true that novel social and industrial develop- 
 ments are bringing to our attention new questions of 
 constitutional law, and many clauses of the Constitu- 
 tion are being resorted to which have never before 
 received judicial interpretation. The Supreme Court 
 has decided the manner in which the limitations of the 
 Constitution shall be imposed and a great body of con- 
 stitutional precedents aids in the solution of new ques- 
 tions. And so, although a multitude of other matters 
 occupies the attention of the practicing lawyer, just 
 as great, just as novel and just as difficult questions of 
 constitutional law are pressing for solution, and the 
 welfare of the country is just as much dependent upon 
 the manner in which they are solved, as in the day of 
 Rufus Choate. No inspiration can be greater for a 
 lawyer than to address himself to the solution of such 
 questions, not with the narrow perspective of a tech- 
 nical lawyer bound down by his subtleties and quiddi- 
 ties, but by the broad view of an American lawyer act- 
 ing in his noblest role of a constructive statesman. 
 
 It may be thought that I have been setting a standard 
 which no one can reach and make a living. I do not 
 think so. But even if I have, it is well to reflect upon 
 these things and to establish early in your career cor- 
 rect ideals. Your task will then be easier and you will 
 not readily yield to the temptations which now more 
 than ever before beset the practice of the law. In 
 spite of the intense practicability of the age, it is still 
 possible that there shall be to-day the perfect lawyer, 
 of whom it may, in the words of a quaint writer of the
 
 20 PAPERS AND ADDRESSES 
 
 seventeenth century, be said: "While he lives, he is the 
 delight of the courts, the ornament of the bar, the 
 glory of his profession, the terror of deceit, the oracle 
 of his country; and when death shall call him to the 
 bar of Heaven by a habeas corpus, he will find his 
 Judge his advocate; nonsuit the Evil One, obtain a 
 liberate from all his infirmities and continue still one 
 of the long robe in glory." 
 
 Such lawyers still exist. Moreover, it is only from 
 such as they that the bar chooses its real leaders. And 
 so long as the profession itself thus continues to recog- 
 nize and apply the true tests for professional distinc- 
 tion, we need not be discouraged if extrinsic causes 
 have temporarily lessened its influence in the com- 
 munity.
 
 SOME RESPONSIBILITIES OF THE 
 AMERICAN LAWYER
 
 II 
 
 SOME RESPONSIBILITIES OF THE 
 AMERICAN LAWYER * 
 
 Procedure, remedies and court organizations outlive 
 their usefulness after periods of fairly uniform dura- 
 tion. The need for correcting the methods of adminis- 
 tering the law is constantly recurring. While we may 
 view with caution proposals to make radical changes 
 in the common law, and in the equally revered, if less 
 ancient, principles embodied in our Constitution, we 
 should never shrink from a candid inquiry as to 
 whether the administration of justice is too technical 
 or too costly or too tardy, and whether its methods are 
 so at variance with our national habits and thought as 
 to obscure the beneficent principles of our system of 
 law. 
 
 It is especially fitting at the present time to make 
 such an inquiry. 
 
 The war and its distressing after-effects are bringing 
 the world face to face with real values in life, partic- 
 ularly in the realm of the intellectual and the spiritual ; 
 and this will lead to a scrutiny of existing institutions 
 more searching than in normal times. 
 
 SIMPLIFICATION OF PROCEDURE 
 
 The reasonable limits of this address do not permit 
 me to enter upon a discussion of the comparative 
 merits of the pending projects for simplifying our 
 court procedure. But I am persuaded that there 
 
 i President's address, delivered before the New York State Bar Associ- 
 ation, at its annual meeting, held in New York city January 16-17, 1920. 
 
 23
 
 24 PAPERS AND ADDRESSES 
 
 should be no further delay in arriving at an agreement 
 upon some plan. A radical simplification is one of 
 the crying needs of the times. The public cares little 
 about whether there is to be a short code supplemented 
 by rules of court, or a longer code affording greater 
 flexibility to respond to changing needs. Differences 
 concerning such matters will continue to exist, and it 
 cannot be expected that any reform will ever receive 
 unanimous approval. 
 
 "We lawyers speak of the division of the body of our 
 law into the substantive, the adjective, the procedural 
 and the remedial. But such terms have no significance 
 to the general public. If our methods of procedure 
 are uncertain and complicated, and cause delay, or if 
 our rules of evidence and the manner in which we con- 
 duct our trials are ill adapted to bringing out the 
 truth, or if existing remedies fail of their purpose, it 
 will do little good for us to glorify our substantive law. 
 The lay public cares little about the theoretical per- 
 fection of the principles of our jurisprudence; and if 
 the machinery for their application to concrete cases 
 is so imperfect that they cannot be readily invoked, 
 condemnation will extend to our entire judicial system. 
 
 The fact that the time for a reexamination of our 
 procedure has arrived ought not to be a source of dis- 
 couragement. In the practice of a profession like 
 ours, the ingenuity of the lawyer frequently directs 
 itself to procedural technicalities. They afford oppor- 
 tunities for tactical advantage, and that is a part of 
 the game. We do not stop in the heat of contest to 
 inquire whither a repetition of such practices may lead, 
 and gradually, under any system, procedure may be- 
 come the complicated, mysterious and subtle means by 
 which fundamental principles are obscured, and the 
 vindication of the rights of the individual retarded or
 
 THE AMERICAN LAWYER 25 
 
 defeated. Partly on account of this natural tendency 
 and partly on account of changed conditions of life, 
 it had been found necessary every thirty or forty years 
 to consolidate procedural statutes, simplify their lan- 
 guage and supply defects and omissions. And we have 
 now got into a condition where an even more radical 
 reform is necessary. 
 
 THE LAW OF EVIDENCE 
 
 There has been a tendency in this country to regard 
 the rules of evidence as a branch of substantive law, or 
 at least as of equal importance. We have been far 
 too inert in subjecting them to a scientific revision. 
 While changes have been made by statute from time 
 to time, the law of evidence has rarely, if ever, been 
 made the subject of comprehensive reexamination. 
 Restrictions upon a free investigation of facts have 
 been retained which, under modern conditions, are fre- 
 quently impeding, rather than facilitating, the ascer- 
 tainment of truth. Many of these restrictions are 
 rightfully regarded by litigants, juries and the public 
 as interposing obstacles which wise and cautious men 
 do not consider necessary in making investigations on 
 which they base important action. 
 
 We must, of course, have rules of evidence. But it 
 is also true that much of the modern law of evidence is 
 a matter of recent development. As a system, it is 
 scarcely two centuries old. Edmund Burke upon the 
 trial of Warren Hastings is said to have protested his 
 ignorance of the law of evidence, and to have said it 
 could be comprised in so small a compass that a parrot 
 he had known might get the rules by rote in one-half 
 hour, and repeat them in five minutes. 
 
 The effort of our law is to base rules of evidence 
 upon sound reason. But a change in the business
 
 26 PAPERS AND ADDRESSES 
 
 habits, in the social customs, in the moral tendencies 
 and even in national or state prejudices, makes the 
 reasons of yesterday the bare subtleties and the seem- 
 ing caprice of to-day. 
 
 Any lawyer observant of the effect produced by our 
 trial procedure upon lay witnesses, spectators and 
 jurors, must have noted their dissatisfaction, more or 
 less articulate, with our rules of evidence, and their 
 tendency to regard them not only as highly artificial, 
 but also as rather mysterious and subtle obstacles to 
 a full investigation of facts. While such impressions 
 on the lay mind should not lead us to abandon rules 
 based upon sound reason, neither should any fancied 
 sanctity attaching to the law of evidence on account 
 of its antiquity prevent us from subjecting it from 
 time to time to a reexamination, for the purpose of de- 
 termining whether it continues to perform the function 
 for which it is designed. We should rather be guided 
 by the kind of common sense which led Lord Chief 
 Justice Cockburn to say: " People were formerly 
 frightened out of their wits about admitting evidence, 
 lest juries should go wrong. In modern times we ad- 
 mit the evidence and discuss its weight. " (R. v. Birm- 
 ingham, 1 B. & S. 763.) Under the influence of such 
 considerations, rules of evidence are applied in Eng- 
 land with far less rigidity than in this country. And 
 we may well consider whether we ought not here to 
 vest in our trial judges a wider discretion, not subject 
 to review, under which there may be a greater liber- 
 ality in such matters as res gestae, and hearsay and 
 secondary evidence. 
 
 That the subject needs reiteration is evident from 
 the disregard of such a warning as that of Mr. Root 
 to the members of the American Bar Association in 
 1915, when he said:
 
 THE AMERICAN LAWYER 27 
 
 ''Our trial practice in the admission and exclusion of 
 evidence does not agree with the common sense, the expe- 
 rience, or the instincts of any intelligent layman in the 
 country. . . . How common it is to see an unsophisticated 
 witness on the stand trying to tell a true story about some 
 event with which he is familiar and continually stopped and 
 bewildered by objections based upon distinctions which do 
 not exist in his mind at all, and finally leaving the stand 
 with a feeling that he has been bottled up and not allowed 
 to tell the truth. We apply these same rules with the same 
 rigidity to women, whose minds work in an entirely different 
 way from the mind of any lawyer who ever had anything to 
 do with devising or developing the rules of evidence. It is 
 an exceedingly difficult thing to tell the truth, the whole 
 truth, and nothing but the truth, on the witness stand, as 
 any lawyer who has been a witness must realize; and the 
 simplest and best way to get that done is to come as near as 
 possible to allowing people to tell their stories their own 
 way. ' ' 
 
 Space will not permit me to mention many of the 
 anomalies of our present rules of evidence. Two in- 
 stances will suffice as illustrations: 
 
 Formerly, the disqualification of a witness on ac- 
 count of interest excluded much pertinent testimony. 
 Almost all such restrictions have now been abolished. 
 One, however, is retained in this state by Section 829 
 of the Code, which excludes the testimony of a person 
 interested in the event of a suit concerning a personal 
 transaction with a deceased person through whose 
 estate he may obtain an advantage. This restriction 
 frequently works intolerable hardship upon honest lit- 
 igants. The strictest interpretation has been placed 
 upon the rule and it has been the subject of a bewilder- 
 ing labyrinth of decisions. The courts have gone to 
 the extreme of subtlety in applying what they conceive 
 to be its spirit. But the question of the wisdom of the
 
 28 PAPERS AND ADDRESSES 
 
 rule has received little attention. Its existence rests 
 solely upon the assumption that our process of investi- 
 gating truth upon the trial of the case is inadequate to 
 overcome the danger of fraud and perjury; and that 
 assumption I believe to be without warrant. For if 
 cross-examination does not uncover an attempt at 
 falsification the mere existence of interest will subject 
 the testimony of a witness to the closest scrutiny by 
 court and jury, while the network of circumstances that 
 a trial always discloses will go far to remove the dan- 
 ger guarded against. 
 
 Another part of our procedure which needs thor- 
 oughgoing reform is that governing the testimony of 
 medical experts. Juries are inclined to pay little heed 
 to such evidence, however eminent or however numer- 
 ous the experts may be. They generally seek, as in- 
 deed do both counsel and courts, to arrive at their 
 conclusions from other proof. Their conclusions are 
 based, not so much upon the refinements of the medical 
 science as upon common sense applied under the in- 
 structions of the court to proof of objective circum- 
 stances. Lengthy hypothetical questions, with their 
 assumptions of fact based on disputed testimony, pre- 
 sent an aspect of artificiality and frequently afford 
 nothing but amusement to jurymen. An effort to un- 
 derstand such questions and to analyze the prepared 
 answers would throw an ordinary jury into confusion ; 
 and courts themselves repeatedly testify to their low 
 estimate of evidence thus elicited. 
 
 Largely on account of the condition of our law of 
 evidence, trials have become burdened and delayed by 
 objections and exceptions and arguments, for which it 
 would be idle to attempt to place the responsibility 
 either upon the counsel or the courts. Records on ap- 
 peal have become more and more voluminous and the
 
 THE AMERICAN LAWYER 29 
 
 cost of litigation has been unnecessarily increased. 
 Where a trial is presided over by an experienced judge 
 and tried by competent counsel, less than half a dozen 
 exceptions to rulings upon evidence ought ordinarily to 
 save every point that would afford a reasonable basis 
 for reversal by a higher court. We can therefore ap- 
 preciate the irony of the presiding justice of an appel- 
 late court in this state when recently he asked counsel 
 for the appellant how it happened that the exceptions 
 on which he relied numbered only 299 instead of 300. 
 
 JUSTICE AND THE POOR 
 
 Cheap and speedy administration of the law by 
 minor courts in the large cities has become increasingly 
 difficult on account of their crowded population. A re- 
 cent investigation by the Carnegie Foundation for the 
 Advancement of Teaching has disclosed that while our 
 substantive law is "a remarkably satisfactory human 
 achievement," and while it continues to be "democratic 
 to the core," there has grown up a "wide disparity 
 between the ability of the richer and poorer classes to 
 utilize" its machinery. This has not resulted from 
 neglect of legislatures to pass adequate laws, or 
 through bias or favor of the courts, or through corrup- 
 tion ; nor is it attributable to any neglect or deficiency 
 of the bar. It has been produced almost entirely by 
 the extraordinary increase within a comparatively 
 brief period of our urban population through immigra- 
 tion. The investigation of the Carnegie Foundation 
 was made by a member of the Boston bar. His report 
 contains much useful material. But certain general- 
 izations and a few striking, though hardly typical, in- 
 stances of delay and expense in the courts have unfor- 
 tunately furnished material which is being used by 
 radicals to aid them in their attacks upon our institu-
 
 30 PAPERS AND ADDRESSES 
 
 tions, and has evoked from the sensational press un- 
 favorable comments unjustified by the facts set forth 
 in the report. For an analysis of its contents shows 
 that through the instrumentality of small claims courts, 
 of conciliation courts and conciliation in general, of 
 arbitration and other such instrumentalities, of domes- 
 tic relations courts, of administrative tribunals and 
 officials, of defenders in criminal cases, and of legal aid 
 organizations, there has been substantial progress in 
 eliminating both delay and excessive cost in the prose- 
 cution of claims for wages, for personal injuries, for 
 small debts such as for rent, groceries and loans, or 
 those arising out of chattel mortgages and assignments 
 of wages, and in the settlement of domestic difficulties 
 of all kinds. 
 
 The improvement indicated in all of these matters, 
 instead of giving ground for criticism, affords gratify- 
 ing evidence of the capacity of the American people for 
 correcting deficiencies in their governmental institu- 
 tions. 
 
 HOMICIDE AND ITS PUNISHMENT 
 
 Passing from the subject of the protection of the 
 rights of the individual, I invite your attention to a 
 matter affecting public order. I refer to the alarming 
 increase of the crime of homicide and the small per- 
 centage of the convictions for its commission. Al- 
 though specialists and publicists have commented on 
 this situation, public opinion has remained indifferent. 
 
 Figures compiled by Frederick L. Hoffman, Vice- 
 President and Statistician of the Prudential Insurance 
 Company of America, show startling results as to 
 homicides. (Homicide Record of American Cities for 
 1914, The Spectator, December 23, 1915.) In thirty of 
 the larger cities of the country, during ten years from
 
 THE AMERICAN LAWYER 31 
 
 1895 to 1904, there were 5,927 homicides; that is, at a 
 rate of 5 to each 100,000 of the population, and in the 
 succeeding ten years ending with 1914 the number had 
 increased to 12,742, or at a rate of 8.1 per 100,000. 
 During the same period, for 100 homicides in this 
 country, there were 13 in England and Wales, 30 in 
 Australia, 31 in Prussia, and 56 in Italy. After mak- 
 ing allowance for errors, due to varying methods of 
 death registration, death certification, etc., there still 
 remains a startling contrast between this country and 
 other countries in the matter of the crime of homicide. 
 Since 1914, the homicides in this country have been 
 slightly in excess of the average for the preceding ten- 
 year period. 
 
 Mr. Moorfield Storey, speaking on the reform of 
 legal procedure, and quoting President Andrew D. 
 White, says: 
 
 "The murder rate in the United States is from ten to 
 twenty times greater than the murder rate of the British 
 Empire and other Northwestern European countries." 
 
 And what is the record for the punishment of the 
 crime of homicide? 
 
 Records published by the Chicago Tribune at the end 
 of each year show that between 1884 and 1908, there 
 had been 131,951 homicides and 2,286 executions. In 
 1885, the number of homicides had been 1,808 and the 
 executions 108, while in 1904, although the homicides 
 had increased almost fourfold to 8,482, the executions 
 had remained almost stationary, at 116. 
 
 The following table shows the homicides and execu- 
 tions for the years from 1912 to 1918, both inclusive: 
 
 Year 
 
 1912 
 
 1913 
 
 )micides 
 
 Executions 
 
 9,152 
 
 145 
 
 8,902 
 
 88
 
 32 PAPERS AND ADDRESSES 
 
 Year Homicides Executions 
 
 1914 8,251 74 
 
 1915 9,230 119 
 
 1916 9,850 106 
 
 1917 9,180 70 
 
 1918 8,850 71 
 
 The comparison of these figures with the official 
 figures in England and Canada shows a startling con- 
 trast. 
 
 In 1913, in England and Wales, 314 persons were 
 tried for murder and homicides, and there were 91 
 convictions. In 1914, 117 persons were brought to 
 trial for manslaughter, and 48 were convicted. In 
 Canada, in 1913, of 55 persons charged with murder 
 23 were convicted, and in 1914, of 62 persons charged 
 with the same offense 27 were convicted. 
 
 Even making due allowance for imperfect records, 
 varying classifications of the degree of the crime and 
 differing methods of keeping records, the figures show 
 what is measurably near a scandalous condition in the 
 administration of criminal justice. 
 
 SUGGESTED REMEDIES 
 
 Individual effort in making an investigation of the 
 facts, or in suggesting remedies, cannot amount to 
 much. Without adequate judicial statistics, there can 
 be no thorough and scientific consideration of the sub- 
 ject, no certainty as to the extent of our deficiencies, 
 and no intelligent judgment as to their cause ; and only 
 by results disclosed by such statistics will comparisons 
 be possible which will tend to arouse public opinion to 
 greater effort in those communities showing bad com- 
 parative results.
 
 THE AMERICAN LAWYER 33 
 
 THE SELECTION OF JURIES 
 
 No process in the administration of criminal justice 
 in this country can be more justly condemned than the 
 selection of jurors in criminal cases. In this state 
 the courts are not free from just criticism for the 
 strictness with which they have interpreted the law 
 upon the subject, nor can the legislature be acquitted 
 of responsibility for failing to change the prevailing 
 practice, which ought not to be tolerated in any civil- 
 ized community. The highest court of the state could 
 probably ameliorate the situation by not adhering too 
 closely to a technical interpretation of the law. Even 
 under existing rulings, an experienced, competent, 
 forceful and courageous trial judge may do much to 
 prevent such exhibitions as we sometimes have. But if 
 relief cannot be thus obtained, some other way should 
 be found to reform a procedure which in this city 
 tolerated for three weeks the tedious process of select- 
 ing a jury to try Harry Thaw, and lent itself in Chicago 
 to the still worse scandal of permitting a delay of three 
 months in the selection of a jury to try Cornelius Shea, 
 after more than six thousand citizens had been exam- 
 ined as to their qualifications. 
 
 THE FUNCTION OF THE TRIAL JUDGE 
 
 A more decisive participation by the judge in direct- 
 ing the thoughts of the trial jurors would undoubtedly 
 be advantageous in criminal as well as in civil trials. 
 In most jurisdictions in this country a judge must 
 adopt an almost timorous attitude. If he incautiously 
 betrays his opinion upon any disputed question of fact, 
 he is in danger of committing reversible error. 
 
 Too rigorous restrictions reduce the judge to the 
 role of a mere moderator, and greatly impair his use-
 
 34 PAPERS AND ADDRESSES 
 
 fulness ; and the charge pronounced by counsel on both 
 sides as impartial, too frequently presents itself to the 
 jury as an entirely colorless essay upon an erudite and 
 little understood subject. But juries need more as- 
 sistance than is afforded by the more or less conven- 
 tional formulation in technical language of rules of law 
 by which they are to be governed. Why not permit a 
 judge to state his own opinion as to facts, as is fre- 
 quently done in English courts ? The principal reason 
 urged against this is the apprehension, which experi- 
 ence in England and in some jurisdictions in this 
 country shows to be groundless, that the customary 
 warning to the jury that they are not to permit the 
 judge 's opinion of the facts to weigh against their own 
 judgment, will, through some fancied influence of the 
 judicial office, be disregarded. The reason does little 
 credit to the character and intelligence of the Ameri- 
 can juryman, and, carried a little further through the 
 paths of logic, would lead to the abolition of the jury 
 system itself. 
 
 Jurors are human. The consciousness that they 
 constitute an independent agency in the judicial system 
 will be far more likely to make them resent encroach- 
 ment upon their prerogatives than to lead them com- 
 plaisantly to yield to undue judicial suggestion. We 
 all know how frequently a charge framed to conform to 
 the rules of law, but designed to favor one side or the 
 other, miscarries, to the chagrin of an over-officious 
 judge ; and in England, the danger that the perversity 
 of a jury may defeat the ends of justice constantly 
 deters judges from a too great indulgence in the ex- 
 pression of their opinion on the facts.
 
 THE AMERICAN LAWYER 35 
 
 THE AMERICAN LAWYER AS A CITIZEN 
 
 The American lawyer has a responsibility quite dif- 
 ferent from his colleagues at the bar of other countries. 
 This difference springs from the peculiar character of 
 our judiciary department as an independent organ of 
 government, whose decisions, though not based on 
 political considerations, vitally affect political meas- 
 ures. In no other country in the world — certainly not 
 in the older ones — does the judiciary perform a func- 
 tion comparable to this in its far-reaching effect upon 
 the stability and development of the institutions of 
 government. Even in England, the constitutionality 
 of an act of the Imperial Parliament may not be ques- 
 tioned by the courts, and the dogma of the inviolability 
 of contracts, which has come to be such an important 
 part of our system of jurisprudence, does not exist. 
 The safeguarding of the political structure of the Eng- 
 lish Government is not a judicial function, and its 
 courts are rarely called upon to restrain the govern- 
 mental activities of the outlying units of the Empire. 
 By the provisions of the Federal Constitution, how- 
 ever, a great charter of individual rights has been 
 erected, enforcible in the courts, which protects the 
 individual against the undue exercise of legislative or 
 executive power. 
 
 The possession of such extraordinary judicial power 
 has elevated our courts into a most important agency 
 to prevent the impulsive assertion by the people of 
 political power. While the imagination of the framers 
 of our Constitution probably did not picture the extent 
 to which the character and permanence of our govern- 
 ment was to become dependent upon interpretations 
 by the Supreme Court during the term of Chief Justice 
 Marshall, and while the people of the United States
 
 36 PAPERS AND ADDRESSES 
 
 could have bad little conception when they adopted 
 the Fourteenth Amendment that it would be resorted 
 to, as it has, for the protection of individual and cor- 
 porate property rights and personal privileges and im- 
 munities, there has, nevertheless, in spite of periodical 
 but futile protests of certain schools of publicists, been 
 general acquiescence in the performance by the judi- 
 ciary of the function which it has assumed ; and the ac- 
 ceptance by the people of the judicial power as an in- 
 strumentality for maintaining the equilibrium of our 
 Federal system is one of the most significant evidences 
 of the genius of the American people for government. 
 The part played by the courts in the development of 
 our political history has been very happily expressed 
 by President Hadley in the following words: 
 
 "But I think that most intelligent men who know the 
 history of the country will say that our courts have been the 
 real bulwarks of American liberty; and that while Hamilton 
 and his associates would be somewhat disappointed in the 
 working of the machinery of legislation and administration, 
 if they could see it in its present shape, they would be filled 
 with admiration at the work which has been accomplished by 
 the judiciary. I believe it to be the judgment of sober- 
 minded men that the courts have furnished the agency which 
 has guarded us against partisan excesses, and have saved the 
 American Republic from the necessity of repeating the suc- 
 cessive revolutionary experiences which France underwent 
 before she could attain to stable democracy. ..." 
 
 No foreign observer has commented upon the work- 
 ings of our government with so much penetration as 
 James Brvce in "The American Commonwealth"; and 
 upon the powers of the federal judiciary, he says : 
 
 "If they had been left to be settled by Congress itself, an 
 interested party, or by any dealings between Congress and
 
 THE AMERICAN LAWYER 37 
 
 the state legislatures, the dangers of a conflict would have 
 been extreme, and instead of one civil war there might have 
 been several. But the universal respect felt for the Constitu- 
 tion, a respect which grows the longer it stands, has disposed 
 men to defer to any decision which seems honestly and logi- 
 cally to unfold the meaning of its terms. In obeying such a 
 decision they are obeying not the judges, but the people who 
 enacted the Constitution." 
 
 ATTACKS ON THE JUDICIARY 
 
 This peculiar judicial power and the unique body of 
 jurisprudence which has been built upon it are con- 
 stantly inviting attacks when they impede the speedy 
 solution of pressing and important questions, and par- 
 ticularly those relating to economic and industrial mat- 
 ters. These attacks are symptomatic of the human 
 tendency to resist measures designed to restrain free- 
 dom of individual action. A few years ago they took 
 form in the proposed Recall of Judges and Recall of 
 Decisions ; and more recently there has been a recrud- 
 escence of the same idea in the formal advocacy by the 
 most powerful labor organization in this country of 
 the abolition of the power of the courts to declare acts 
 of Congress void. About a month ago representatives 
 of 119 national and international unions, including the 
 four railroad brotherhoods, summoned to meet by the 
 President of the American Federation of Labor, issued 
 a so-called Bill of Rights, in which, among other at- 
 tacks upon the courts, they said : 
 
 "We assert that there cannot be found in the Constitution 
 of the United States or in the discussions of the Congress 
 which drafted the Constitution any authority for the Federal 
 courts of our country to declare unconstitutional any act 
 passed by Congress. We call upon the people of our country 
 to demand that the Congress of the United States shall take
 
 38 PAPERS AND ADDRESSES 
 
 action for the purpose of preventing the Federal courts from 
 continuing the usurpation of such authority." 
 
 THE HISTORICAL ARGUMENT 
 
 The historical reference in the above extract is in- 
 accurate. The convention which drafted the Constitu- 
 tion was aware that from the division of power among 
 the three departments of government it resulted that, 
 if Congress should pass acts in violation of the limita- 
 tions of the Constitution, the Supreme Court would 
 have the power to declare them void. Indeed, Madi- 
 son, to whom more than to any other member of the 
 Convention is to be assigned the credit for framing the 
 Constitution, went so far as to seek to have the 
 Supreme Court share with the President the veto power 
 ultimately vested in the Executive alone. In the de- 
 bate which the proposal evoked Gouverneur Morris 
 said that the court should not "be bound to say that a 
 direct violation of the Constitution was law"; and he 
 continued: "A control over the legislature might 
 have its inconveniences; but view the danger on the 
 other side. The most virtuous citizens will often, as 
 members of a legislative body, concur in measures 
 which afterwards, in their private capacity, they will 
 be ashamed of. Encroachment of the popular branch 
 of the government ought to be guarded against." 
 
 When the Constitution in 1788 came before the Vir- 
 ginia Convention for ratification, Madison, speaking of 
 the judiciary power, said: "It may be a misfortune 
 that, in organizing any government, the explication of 
 its authority should be left to any of its coordinate 
 branches. There is no example in any country where 
 it is otherwise. There is a new policy in submitting it 
 to the judiciary of the United States. . . . With re- 
 spect to the laws of the Union, it is so necessary and
 
 THE AMERICAN LAWYER 39 
 
 expedient that the judicial power should correspond 
 with the legislative, that it has not been objected to." 
 And he says in another connection that "their laws 
 (i.e. of Congress) in opposition to the Constitution 
 would be void. . . . The Federal judges, if they spoke 
 the sentiments of independent men, would declare their 
 prohibition nugatory and void." 
 
 John Marshall in the same Convention, anticipating 
 the long line of decisions made by him many years 
 afterward as Chief Justice, speaking of the power of 
 the federal government to make laws said : ' ' Can they 
 go beyond the delegated powers? If they were to 
 make a law not warranted by any of the powers enum- 
 erated, it would be considered by the judges as an 
 infringement of the Constitution which they are to 
 guard. They would not consider such a law as coming 
 under their jurisdiction. They would declare it void. ' ' 
 
 THE FUNCTION OF THE FEDERAL JUDICIARY 
 
 I but repeat arguments which have become classic, 
 when I say that the interpretation of written law, and 
 a fortiori of a written constitution, is a judicial func- 
 tion. It calls for the critical faculty to determine the 
 intention of the law-makers from the instrument it- 
 self. Both Hamilton, in the Federalist, and Marshall, 
 in Marbury v. Madison, agreed in the cogent statement 
 that where two acts of the people were presented, one 
 the Constitution and one a legislative act, the court 
 must either decide ' ' conformably to the law, disregard- 
 ing the Constitution, or conformably to the Constitu- 
 tion, disregarding the law — the court must determine 
 which of these conflicting rules governs the case." 
 And the logic of that position remains conclusive to- 
 day. It merely amounts to this : that the intention of 
 the people as expressed in the fundamental law is to
 
 40 PAPERS AND ADDRESSES 
 
 be enforced rather than the intention of a Congress 
 elected to enact current legislation during its two years 
 of office. Hamilton adds that if the legislature should 
 make bad laws, "the same spirit which had operated 
 in making them would be too apt in interpreting them ; 
 still less could it be expected that men who had in- 
 fringed the Constitution in the character of legislators 
 would be disposed to repair the breach in the character 
 of judges." 
 
 Even the most extreme opponents of the federal 
 judiciary system have never seriously contended that 
 the power of the Supreme Court to declare state laws 
 void, as contravening the Constitution, was not neces- 
 sary for the preservation of the Union. For the exer- 
 cise of that power the Constitution created a tribunal 
 differing from any theretofore existing, whose powers, 
 though judicially exercised, were to extend to matters 
 which were political in that they would necessarily in- 
 volve claims by the several states that their acts were 
 within the sovereign powers reserved to them. The 
 question whether an act of Congress encroaches upon 
 such sovereign powers involves precisely the same kind 
 of a political question, for, from the standpoint of main- 
 taining the Union in accordance with the constitutional 
 compact, it is just as important to restrain Congress 
 from encroaching upon the powers reserved to the 
 states as it is to keep the states from exercising any 
 of the enumerated powers granted to the federal legis- 
 lature. It was necessary to provide, because it was an 
 affirmative grant of power affecting the sovereignty of 
 the states, that the "judges in every state" should 
 be bound by the Constitution and laws of the United 
 States, "anything in the Constitution or laws of any 
 state to the contrary notwithstanding" (Art. 6, sec. 2) ; 
 but it was not necessary to make express provision
 
 THE AMERICAN LAWYER 41 
 
 with reference to the acts of Congress, for the power of 
 the court was clearly implied by the provision that the 
 Constitution was to be the "supreme law of the land" 
 and the judicial power was to extend "to all cases . . . 
 arising under this Constitution" and the laws of the 
 United States. 
 
 It has been frequently pointed out by those criti- 
 cizing our present system that under the English sys- 
 tem the Imperial Parliament is the sole judge of the 
 constitutionality of its legislative acts. But the gov- 
 ernment of Great Britain presents no questions of the 
 conflicting sovereignty of its several units. Moreover, 
 the British Constitution is a document having its sanc- 
 tion solely in measures enacted by Parliament itself. 
 There is no other instrumentality through which the 
 people can express themselves. If they have the power 
 to make the Constitution, they also have the power in 
 Parliament to unmake it by interpretation or other- 
 wise. But Parliament does not exercise any such 
 power by overruling in a particular case a judicial de- 
 cision, however much it may change the Constitution in 
 its application to future cases. The proposition of the 
 labor organizations, however, is that Congress shall 
 have the judicial power to reverse the decision of the 
 Supreme Court in a particular case, with no appeal 
 from the decision, however erroneous as a matter of 
 law it may be. 
 
 Ours was the first written Constitution attempting to 
 limit the powers of the several organs of a federal 
 system of government, and of the sovereign units of 
 the confederation. The powers enumerated as vested 
 in Congress were far from converting the system into 
 a consolidated, centralized government. They prin- 
 cipally related to matters necessary to confer sover- 
 eign powers so far as other nations were concerned,
 
 42 PAPERS AND ADDRESSES 
 
 and those in respect of which uniformity of adminis- 
 tration was deemed necessary for national coherence. 
 All powers granted to Congress were, of course, in 
 derogation of the sovereign powers of the states. 
 Thus questions of the constitutionality not only of 
 state laws but also of federal laws involve a conflict 
 between state and federal sovereignties. If to Con- 
 gress had been committed the power to determine the 
 constitutionality of its own acts, it could by a judicial 
 act deprive a state of its reserved sovereign power and 
 gradually completely consolidate the federal govern- 
 ment. Such a possibility was perceived to open up a 
 grave menace and the necessity for having an impartial 
 judicial body to remove it became so manifest that, in 
 spite of the multitude of other objections urged to the 
 Constitution, there was no serious objection made to 
 that. 
 
 The attitude of the Federation of Labor is probably 
 due to dissatisfaction with such decisions as that in 
 the Child Labor case. But however unsound such de- 
 cisions may have been, no menace to our institutions 
 has resulted or can result ; for the court is powerless to 
 enforce its decrees against the opposition of the execu- 
 tive and legislative departments, and the genius of 
 the American people can always find some way for 
 accomplishing its will within the bounds of legality. 
 If the recent effort of Congress through the taxing 
 power has failed to accomplish the beneficent purpose 
 of the Child Labor Law, there will remain the expedient 
 of amending the Constitution ; and the power to resort 
 to that remedy is a complete answer to all objections 
 to the power of the Supreme Court to declare acts of 
 Congress void. 
 
 The Supreme Court has nullified few important acts 
 of Congress. There has never been an habitual or
 
 THE AMERICAN LAWYER 43 
 
 flagrant abuse of power. But there is little doubt that 
 the existence of the power and its occasional exercise 
 have had a very salutary effect in maintaining the 
 balance among the federal departments, and between 
 the state and federal governments, thus giving stabil- 
 ity to the entire governmental system. For over 130 
 years, the government has existed without revolution- 
 ary or even radical changes in its constitutional form. 
 It has withstood the strain of foreign wars and one 
 Civil War of the most devastating character. The 
 states have increased from thirteen to forty-eight and 
 their population from three millions to one hundred 
 millions, and the government has had to extend the 
 field for the exercise of its powers over a vastly in- 
 creased domain and a constantly broadening field of 
 activities. Yet the federal system remains more 
 stable than ever before, and the rights of the individual, 
 whether he be of the majority or of the minority, con- 
 tinue to be effectively safeguarded. History does not 
 record an instance of such stability in any other popu- 
 lar government, certainly not in modern times. And 
 among the chief reasons for this is the fact that the 
 people have been willing to impose upon themselves, 
 through the judiciary, checks against the usurpation 
 of powers withheld under the Constitution. 
 
 The burden rests heavily on those who would disturb 
 institutions which have thus by time and experience 
 proved their value. Especially must they show why 
 it is not wiser to make fundamental changes by amend- 
 ing the Constitution itself. Let them tell the country 
 why they are unwilling to submit their case to the 
 deliberate judgment of the people. The amendment 
 of the Constitution is not a complicated process, as 
 was demonstrated in the amendment which validated 
 the income tax ; nor does it involve delay disproportion-
 
 44 PAPERS AND ADDRESSES 
 
 ate to the importance that should be attached to such 
 a fundamental step. And if there be a grievance grow- 
 ing out of a decision of the Supreme Court, that is the 
 way to correct it, rather than to overthrow the author- 
 ity of a court whose decisions have been generally 
 regarded with such respect for their fairness and wis- 
 dom that it ranks as one of the greatest judicial tri- 
 bunals in history. 
 
 THE DUTY OF THE AMERICAN LAWYER 
 
 Many other fundamental questions press upon our 
 country, and we lawyers should not be overapprehen- 
 sive lest in giving organized expression to considered 
 views upon them we shall incur danger of partisan 
 controversy. It is as true now as it was when in 1830 
 de Tocqueville said that ' ' scarcely any question arises 
 in the United States which does not become sooner or 
 later a subject of judicial debate." If that be so, no 
 part of the community can more fitly engage in contro- 
 versies involving fundamental questions of government 
 than lawyers. And if associations of the bar refrain 
 from the discussion of questions which permanently 
 affect the safeguards of our Constitution, because they 
 fear to excite partisan controversy, we may well con- 
 sider whether it is not time to reconstitute them upon 
 some other basis. 
 
 It has never before been so necessary for lawyers to 
 think in terms of statesmanship and to stimulate simi- 
 lar habits of thought in others. In adjusting itself to 
 peace conditions, the country will, as it never has be- 
 fore, concern itself with international relations, and it 
 must at the same time continue to guard at home 
 against any impairment of the liberty of the individual, 
 and of the rights of the minority. The relations be-
 
 THE AMERICAN LAWYER 45 
 
 tween the government and the transportation compan- 
 ies must be adjusted; the entire subject of combinations 
 in restraint of trade must be reconsidered ; a fiscal pol- 
 icy adapted to the enormous financial burden cast upon 
 us by the war must be adopted ; the rights of labor and 
 those of capital must be brought into stable equilib- 
 rium; our institutions must be guarded against the 
 menace of the most modern form of communism; and 
 the authority of our courts must be preserved against 
 the invasion of novel and destructive theories, partic- 
 ularly those which seek to impair the steadying influ- 
 ence of the judiciary. We must solve the questions of 
 international law which will become incident to the pro- 
 visions of any peace treaty that may be made. And we 
 cannot abate our vigilance in seeing to it that funda- 
 mental rights are not submerged by great combinations 
 of capital, and that, on the other hand, no class in the 
 community, however powerful, shall set at naught the 
 rights and convenience of the general public, or unduly 
 interfere with its pursuit of happiness. 
 
 None of these great questions can be solved without 
 constant reference to vital principles of constitutional 
 law. Lawyers and associations of the bar better than 
 any other class in the community can contribute to 
 their solution; and that fact carries with it a corre- 
 sponding duty. President Wilson, then Governor of 
 New Jersey, in an address to the Kentucky Bar Asso- 
 ciation in 1911, used these words: 
 
 'For the notable, I had almost said fundamental, circum- 
 stance of our political life is that our courts are, under our 
 constitutional system, the means of our political development. 
 Every change in our law, every modification of political 
 practice, must sooner or later pass under their scrutiny. We 
 can go only as fast as the legal habit of mind of our lawyers 
 will permit. Our politics are bound up in the mental char-
 
 46 PAPERS AND ADDRESSES 
 
 acter and attitude and in the intellectual vigor and vision of 
 our lawyers. Ours is so intensely and characteristically a 
 legal polity that our politics depend upon our lawyers. They 
 are the ultimate instruments of our life." 
 
 Just seventy-five years ago, Rufus Choate, in an 
 address delivered to the Harvard Law School, ex- 
 pressed the same idea, saying that it had been the 
 office of the American lawyer of his day to interpret, 
 administer and maintain the constitutions of the coun- 
 try, and that they had thereby, ' ' shared in the dignity 
 of founders of states, of restorers of states, of preserv- 
 ers of states. I said and I repeat that while lawyers, 
 and because we are lawyers, we are statesmen. We 
 are by profession statesmen. And who may measure 
 the value of this department of public duty f ' ' 
 
 While James Bryce has made a similar observation, 
 he has also pointed out the fact, which it would be futile 
 to deny, that while the influence of lawyers still remains 
 potent in legislative bodies and in public office, " taking 
 a general survey of the facts of to-day as compared 
 with those of sixty years ago, it is clear that the bar 
 counts for less as a guiding and restraining power 
 tempering the crudity or haste of democracy by its 
 attachment to rule and precedent than it did then. ' ' 
 
 With the more general diffusion of opportunities for 
 education and the increase of professional and commer- 
 cial specialization, members of the legal profession 
 no longer enjoy to an extent as great as they did for- 
 merly, intellectual and social leadership. The prestige 
 of lawyers (and the same may be said of other profes- 
 sions) has suffered in influence through the increasing 
 importance of the gigantic commercial and financial 
 undertakings of to-day, whose originators and mana- 
 gers must necessarily possess qualities, intellectual 
 and otherwise, which equip them for leadership.
 
 THE AMERICAN LAWYER 47 
 
 Practical developments in science and the arts have so 
 contributed to the comfort, convenience and health of 
 mankind, that the chief actors in these fields have de- 
 servedly occupied positions of wide influence. 
 
 With the concentration of wealth in great enterprises, 
 the lawyer has frequently become attached to particu- 
 lar business interests, by which his opinions in relation 
 to great questions of the day are affected and his 
 freedom in the performance of his duties as a citizen 
 more or less fettered. Living in the atmosphere of 
 private interests, such a lawyer finds it increasingly 
 difficult to move out of the narrow channel in which his 
 employment confines him. It results that the exhibi- 
 tion of courage, initiative and constructive leadership 
 is by no means so easy or natural for some of the most 
 competent members of the bar as under the simpler 
 social and industrial conditions existing seventy-five 
 years ago. And yet now more even than then the 
 social, industrial and political questions before the 
 people are intertwined with questions of constitutional 
 or international or municipal law. While the bar must 
 always continue to be the great conservative force in 
 our system, we lawyers should not hesitate to ask our- 
 selves from time to time whether we have not become 
 too conservative ; that is, whether the forces of progress 
 have not created such a transformation in the body 
 politic as to require us to become more aggressive if we 
 would play the part for which our training and our ex- 
 perience has fitted us. 
 
 RESPECT FOR THE LAW 
 
 The crowning service of the American lawyer is to 
 teach respect for the law because it is the law. Some 
 student of our institutions has said that the American 
 people have a talent for legality ; that is, for adjusting
 
 48 PAPERS AND ADDRESSES 
 
 themselves to the law as it is and not as it ought to 
 be. We Americans, in the words of Tennyson, have 
 
 ' ' Some reverence for the laws ourselves have made ; 
 Some patient force to change them when we will ; 
 Some civic manhood, firm against the crowd." 
 
 The possession of the spirit speaking in these lines 
 has no doubt saved the American people at critical 
 junctures. It is not that we withhold our protest 
 against the policy, and perhaps against the wisdom 
 and justice, of existing laws, for more frequently and 
 more freely than most peoples of the world we de- 
 nounce them and seek their repeal. But we are 
 attached to the idea that in the long run order will be 
 better preserved, a larger measure of justice will pre- 
 vail, and the stability of our institutions will more 
 certainly be perpetuated, if we accustom ourselves to 
 accept for the time being the existing law as our guid- 
 ing force. It is this genius of the American people 
 which has enabled them to accept as a rule of action a 
 constitution which was itself a compromise, and which 
 has worked only through accommodations suggested 
 by the common sense of the people. We may with 
 some pride of race compare this experience with that 
 of the South and Central American republics, and even 
 of France, which have from time to time adopted con- 
 stitutions, sometimes on the model of ours and no less 
 perfect in form, but which in many cases have proved 
 to be little more than an exhibition of the imitative 
 faculty or an expression of lofty aspiration. With 
 knowledge and experience in self-government, however, 
 the American people have known that no system could 
 be devised which would be perfect to meet every 
 exigency, and they have realized that laws, and even 
 constitutions, must be made to bend to meet practical
 
 THE AMERICAN LAWYER 49 
 
 situations; but they have also known that if they did 
 not give a certain deferential adherence to the law 
 because it is the law, they would encounter risks, the 
 effect of which could not be predicted. They have be- 
 lieved that a part of the self-restraint required for the 
 successful working of a democratic form of govern- 
 ment was to obey an unfit law so long as it was the 
 law, to demonstrate its unfitness by its enforcement, 
 and then to repeal it. 
 
 We are now witnessing a protest on the part of 
 many people who assert that the prohibition amend- 
 ment is not the expression of the will of the people, 
 But whether they be right or not, the American habit 
 of respecting the law will ultimately prevail. 
 
 I am not unmindful of some of the great crises of 
 our history, where there have been fundamental dif- 
 ferences concerning vital questions, such, for instance, 
 as those which arose in connection with slavery. No 
 greater strain could have been placed upon the patriot- 
 ism of any citizen than that which weighed upon 
 Abraham Lincoln when the Supreme Court decided the 
 Dred Scott case. With all the fervor of his moral 
 nature he condemned the principle underlying the law, 
 if it was as the Supreme Court interpreted it to be. 
 With all the force of his intellectual nature he believed 
 it to be an unsound interpretation of the Constitution. 
 So far as he was at liberty to disregard it as a political 
 rule, he adopted every proper method to see to it that 
 it should be corrected. But he never denied the bind- 
 ing effect of the decision. He met it by asserting that 
 new views of the question should be presented to the 
 Supreme Court, in order that that tribunal might be 
 induced to put a different interpretation upon the Con- 
 stitution, or he urged that the Constitution be amended, 
 saying that by so doing "I disturb no rights of prop-
 
 50 PAPERS AND ADDRESSES 
 
 erty; create no disorder; excite no mobs." And he 
 added : 
 
 "We believe ... in obedience to and respect for the 
 judicial department of the government. We think its de- 
 cisions on constitutional questions when fully settled should 
 control not only the particular cases decided but the general 
 policy of the country, subject to be disturbed only by amend- 
 ments of the Constitution as provided in that instrument 
 itself. More than this would be revolution. ' '
 
 THE BAR IN THE WAR—ITS WAR COMMIT- 
 TEES AND ITS PARTICIPATION IN THE 
 ENFORCEMENT OF THE SELECTIVE SER- 
 VICE LAW AND REGULATIONS
 
 Ill 
 
 THE BAR IN THE WAR— ITS WAR COMMIT- 
 TEES AND ITS PARTICIPATION IN THE 
 ENFORCEMENT OF THE SELECTIVE SER- 
 VICE LAW AND REGULATIONS ' 
 
 When this country became involved in the Euro- 
 pean War, bar associations throughout the country 
 formed committees to organize war work in which 
 members of the bar might be useful. In the city of 
 New York, the Association of the Bar of the City of 
 New York, the New York County Lawyers' Associa- 
 tion, the Brooklyn Bar Association, the Association of 
 the Bar of the County of the Bronx, the Queens County 
 Bar Association, the Richmond County Bar Associa- 
 tion and the Lawyers' Club, each appointed a War 
 Committee. These committees announced that their 
 purpose was to consider how members of the associa- 
 tions they represented might render assistance to the 
 government, to the state, and to the city, and might 
 also extend aid to members of the legal profession 
 serving with the land and naval forces of the country, 
 and their dependents. For the purpose of avoiding 
 duplication of labor and expense and of securing effi- 
 ciency, these committees were on May 2, 1917, amal- 
 gamated and there resulted the War Committee of 
 the Bar of the City of New York which has since, in 
 a variety of ways, made itself useful in connection 
 with war work. 
 
 The War Committee first sought to marshal the 
 
 i Address delivered at the annual meeting of the New York State Bar 
 Association held in New York York city January 11-12, 1918, by Mr. 
 Taft. chairman of the War Committee of the Bar of the City of New 
 York. 
 
 53
 
 54 PAPERS AND ADDRESSES 
 
 resources of the bar of New York City by addressing 
 a circular letter to its 14,000 members, inviting their 
 cooperation and requesting them to give information 
 which would aid the committee in organizing the work. 
 Responses were received from nearly 4,000 lawyers 
 and information was thus obtained which, on being 
 classified and card catalogued, has enabled the com- 
 mittee to call to its assistance members of the bar as 
 occasion has arisen. 
 
 It has been an important part of the work of the 
 committee to give to enlisted men and their depend- 
 ents gratuitous advice concerning their personal affairs 
 before they leave the country. This work has included 
 the settlement of claims growing out of controver- 
 sies over leases and other contracts, the drawing of 
 wills, trust deeds and other papers, advice with ref- 
 erence to real estate, life insurance and partnership 
 matters, and concerning the adjustment of domestic 
 difficulties of a variety of kinds and the right of 
 municipal employees to receive a portion of their 
 salaries after entering the military service. This 
 work has been dealt with under the direction of a sub- 
 committee by a force of volunteer lawyers who have 
 been pretty continuously engaged upon it. The com- 
 mittee has not undertaken to conduct lengthy litiga- 
 tions or otherwise to perform legal services which 
 promised to be protracted, and especially where the 
 financial condition of applicants has made it suitable 
 that they should employ their own lawyers and pay for 
 their services. It has rather devoted itself to settling 
 the exigent affairs of men called into the service, by 
 giving them reliable, prompt and gratuitous legal as- 
 sistance. In order that enlisted men should know what 
 the committee offered to do, notices have been inserted 
 in the newspapers and have been posted in armories,
 
 THE BAK IN THE WAR 55 
 
 oamps and other places where they would attract at- 
 tention. 
 
 The committee proposes to enter upon relief work, 
 but happily this has not yet proved to be necessary. 
 It is known, however, that a substantial number of law- 
 yers have entered the military service, and it is quite 
 probable that they and their dependents will some time 
 require assistance. We are considering ways and 
 means for raising a considerable sum of money to 
 afford relief when the occasion arises. The distress 
 among the professional classes in England and France 
 has been widespread and severe, and organizations for 
 their relief have found much to do in those countries. 
 
 At the outset it was thought that provision could be 
 made for the care of the business of lawyers called to 
 the front. Indeed, that part of the proposed work 
 attracted more attention than any other. It had a 
 sentimental aspect, since an organization for such 
 work implied not alone patriotism and self-sacrifice on 
 the part of the lawyers remaining at home but also a 
 certain commendable comradeship among members of 
 the profession. From all parts of the country in- 
 quiries were received as to the manner in which it was 
 proposed that the business of lawyers entering the 
 army should be conserved. The expectation, how- 
 ever, that this part of the work would require serious 
 attention has not been realized. With one or two neg- 
 ligible exceptions, no applications have been made to 
 the committee for its assistance. The difficulty about 
 conserving the practice of absent lawyers (apart from 
 the reluctance of clients temporarily, at the instance 
 of an outside agency, to put their affairs in the hands 
 of other lawyers), is the fact that lawyers who have 
 any business worth preserving have, without the inter- 
 vention of the committee, made private arrangements
 
 56 PAPERS AND ADDRESSES 
 
 with fellow members of the bar. Especially is this so 
 with the older lawyers who have become officers in the 
 military service; and the younger lawyers within the 
 draft age are generally law clerks, or, if they have an 
 independent practice, it is more or less spasmodic and 
 accidental, and cannot be anticipated or provided for. 
 In England the conditions are quite different, and in 
 some cases it has been found quite practicable to con- 
 serve the business of barristers going to the front; 
 but in this country provision of that kind does not 
 seem to be practicable. 
 
 The War Committee on its organization made a 
 written tender to numerous officers of the federal, 
 state and municipal governments of its cooperation 
 in connection with any war work in which legal ability 
 and experience might be useful. This tender has been 
 availed of with frequency, and the committee has been 
 able to procure and organize for the government the 
 gratuitous services of many lawyers in a variety of 
 ways. 
 
 It selected and recommended to the United States 
 Attorney for the Southern District of New York, 
 twenty-five lawyers to investigate evasions of the draft, 
 applications by alien enemies for permits and sus- 
 picious cases of a variety of kinds requiring the con- 
 fidential cooperation of reliable assistants. The War 
 Committee aided the Director of the State Military 
 Census, advised him as to his powers and prepared 
 the forms for use in the administration of the law. 
 At the request of the Mayor's Committee on National 
 Defense, it obtained the gratuitous services of about 
 forty lawyers who under the first draft aided in or- 
 ganizing, and at the outset in advising, the Local Ex- 
 emption Boards. At the request of the Adjutant Gen- 
 eral, the committee recommended 189 carefully se-
 
 THE BAR IN THE WAR 57 
 
 lected lawyers who acted in the first draft as the 
 representatives of the Provost Marshal General in the 
 Local Exemption Districts in the city of New York, 
 and an additional number of lawyers who performed 
 similar work before the District Board for that city, 
 aiding that Board in the decision on appeal of upwards 
 of 40,000 cases. 
 
 It is now well known to members of the profession 
 that the new Selective Service Regulations of the War 
 Department and the questionnaires provided for there- 
 under, were of such a complicated character that the 
 government wisely determined that success in classi- 
 fying the remaining registrants under the Selective 
 Service Law, would necessitate the cooperation of the 
 entire bar of the county in aiding the registrants in 
 filling out their questionnaires and in advising them 
 as to their rights. 
 
 In the first draft about one million out of the aggre- 
 gate number of nearly ten millions of registrants were 
 called, and between 600,000 and 700,000 were inducted 
 into the army. Difficulties were experienced, however, 
 in proceeding in this manner, and it was decided by the 
 War Department that the entire body of registrants 
 who had not been inducted should be classified in the 
 order in which they were to be selected for service in 
 the army; and that thus, by a single operation the gov- 
 ernment should obtain all of the information which 
 would enable it to make an army and at the same time 
 make provisions for the industrial needs of the coun- 
 try. The President in his Foreword to the Regula- 
 tions, said: " We must make a complete inventory of 
 the qualifications of all registrants in order to deter- 
 mine, as to each man not already selected for duty 
 with the colors, the place in the military, industrial or 
 agricultural ranks of the nation in which his experience
 
 58 PAPERS AND ADDRESSES 
 
 and training can best be made to serve the common 
 good. This project involves an inquiry by selection 
 boards into the domestic, industrial and educational 
 qualifications of nearly ten million men." 
 
 The general plan seems to have been in part based 
 on the successive steps taken by England which ulti- 
 mately developed into the present Conscription Act. 
 After an effort to raise an army by voluntary enlist- 
 ment had proved to be unsatisfactory, the British Par- 
 liament in July, 1915, passed the National Registration 
 Act, which was designed to ascertain in districts the 
 supply of different classes of labor and of men of 
 military age. This registration proved to be very use- 
 ful in Lord Derby's effort to raise an army by volun- 
 tary enlistment, but an army of sufficient size could 
 not be raised in that way within the limited time at 
 hand; and there followed in January, 1916, the first 
 Military Service Act which applied to unmarried men, 
 and widowers without children dependent upon them, 
 who were from eighteen to forty-one years of age. 
 Many of the features of our own Selective Service 
 Law, including those relating to immunity from con- 
 scription on account of employment in industrial occu- 
 pation which, in the national interest, it was of im- 
 portance not to interrupt, or of the dependency of rel- 
 atives who would become a public charge if deprived of 
 support, were in some form contained in this law ; and 
 provision was made for local tribunals like our Local 
 Exemption Boards, as well as for a system of appeals. 
 This act also proved to be inadequate, and in May, 
 1916, the Second Military Service Act was passed, 
 which included within its provisions every male Brit- 
 ish subject between the ages of eighteen and forty, and 
 all men thirty days after they became eighteen. The 
 act extended the time of the men then in the service
 
 THE BAR IN THE WAR 59 
 
 and recalled all the time-expired men under forty-one. 
 It is thus evident that Great Britain arrived at a 
 complete scheme of conscription only by passing 
 through a number of experimental stages. This pro- 
 gressive development has undoubtedly been of great 
 value to our government and has saved us much dis- 
 cussion and probably many difficulties which the 
 prompt passage of the Selective Service Law and 
 adoption of the regulations have avoided. To some 
 extent, however, the first draft in this country was 
 experimental — or at least it suggested that methods 
 might be adopted which would be more comprehensive 
 and thorough; and accordingly a system was devised 
 which, by a single process, sought to classify the entire 
 body of registrants and enable the government with 
 certainty to ascertain the extent and the character 
 of the military resources of the country so far as they 
 were dependent upon men between the ages covered by 
 the law. As the Provost Marshal General announced, 
 the design of the new regulations without the "haste 
 and confusion" necessary under the first draft was 
 to take from each community " only those who can be 
 spared with the least possible interference with the 
 domestic and economic life of the community," while 
 the nation was at the same time enabled to meet at 
 home " problems of industrial, agricultural and eco- 
 nomic conservation with which we are bound to be 
 confronted." The elaborate system which was re- 
 sorted to was no doubt necessary to accomplish these 
 results, and I have no hesitation in saying that the 
 regulations through which the system is being carried 
 into effect, in its general plan, in the completeness of 
 detail and in the prevision which marks the manner in 
 which it deals with new and anomalous conditions, is 
 a very creditable, if not a very remarkable, piece of
 
 60 PAPERS AND ADDRESSES 
 
 legislation. The regulations are necessarily volum- 
 inous and complicated, and, without a knowledge of 
 their provisions, the questionnaire, on the answers to 
 which the entire classification is based, is, even to a 
 lawyer, somewhat confusing. Even under the first 
 draft one of the chief sources of difficulty came from 
 the mistakes of registrants from their ignorance of 
 their rights and duties under the law; and the embar- 
 rassment from the same cause became greatly increased 
 by the more comprehensive and permanent character 
 of the new regulations ; indeed, it made, in the words 
 of the Provost Marshal General, the creation of Legal 
 Advisory Boards to assist registrants in correctly 
 answering the questionnaires "one of the most vital 
 necessities of the new system." 
 
 The opportunity thus afforded by the regulations 
 for the participation by the legal profession in the 
 enormously important work of raising the national 
 army is an event of no small importance in the history 
 of the bar. In transmitting the regulations to the 
 governors of the several states, and requesting the 
 cooperation of the state and local governments in 
 carrying the plan of the Selective Service Law and 
 Regulations to a successful consummation, the Provost 
 Marshal General stated that it was contemplated that 
 it would be necessary to create an organization in each 
 state which would absorb all members of the legal 
 profession and "assign to each a definite place and 
 duty in the winning of this war. ' ' He added : 
 
 "We have not yet given the legal profession a definite 
 place in the organized ranks of the nation, and what is here 
 proposed offers a chance that should be welcomed enthusias- 
 tically by every lawyer in particular and by the whole legal 
 profession . . . 
 
 "No more important post could be offered a lawyer at this
 
 THE BAR IN THE WAR 61 
 
 time than the active duty of assisting in the raising of our 
 armies and in this way can be provided a very necessary 
 auxiliary of the selective service system without making any 
 demand on the time of any lawyer to which any patriotic 
 citizen would hesitate to respond." 
 
 And the President in his Foreword to the Regula- 
 tions themselves, said: 
 
 "I urge men of the legal profession to offer themselves as 
 Associate Members of the Legal Advisory Boards to be pro- 
 vided in each community for the purpose of advising regis- 
 trants of their rights and obligations and of assisting them 
 in the preparation of their answers to the questions which 
 all men subject to the draft are required to submit." 
 
 In line with this suggestion, in section 30 of the reg- 
 ulations, it is further stated: 
 
 "It should be the pride of every lawyer that no registrant 
 within his district is without competent legal advice and 
 assistance in preparing all papers that such registrant is re- 
 quired to submit in the process of the selection of citizens of 
 this nation for duty in the present emergency." 
 
 And by section 46 it is asserted that it is inconsistent 
 with the duty imposed upon members of the Legal 
 Advisory Boards "to seek clients for the purpose of 
 urging and advocating individual cases in any other 
 way than as disinterested and impartial assistants of 
 the selective service system," while by the same sec- 
 tion, lawyers are urged "freely and without compen- 
 sation to give their best service to the nation." 
 
 The duty of Legal Advisory Boards extends to advis- 
 ing as to the true meaning and intent of the law and 
 regulations, of assisting registrants in making 
 answers to the questionnaire, and in aiding "generally
 
 62 PAPERS AND ADDRESSES 
 
 in the just administration of said law and regulations." 
 There is thus imposed upon members of the bar a most 
 important and a most delicate duty. It does not create 
 precisely the relation of lawyer and client, but the 
 service bears more resemblance to the judicial func- 
 tion, while it is in important features administrative. 
 No member of the Legal Advisory Board in advising a 
 registrant is to forget the duty he owes to the country 
 to administer the law and the regulations according to 
 their true intent and meaning for the purpose of rais- 
 ing an army; nor, on the other hand, should he forget 
 the vital interests of the registrant who is called upon 
 to sacrifice his personal comfort, his property inter- 
 ests, and perhaps his life. 
 
 The duty which the bar at large was called upon to 
 perform called not alone for strenuous effort and the 
 setting aside of convenience and business engagements, 
 but also for the performance of high and patriotic 
 duties. The call of the President was responded to 
 with patriotic zeal. The bar as a unit sprang to the 
 assistance of the national government, and the manner 
 in which the service was performed should tend to 
 remove prejudice which sometimes has existed con- 
 cerning the useful function of the lawyer in our sys- 
 tem of government. 
 
 The regulations provided for the appointment of 
 Legal Advisory Boards of three Permanent Members in 
 such districts as might be created by the governor of 
 each state. Members were also to be appointed in 
 such numbers as might be necessary to provide ade- 
 quate assistance. Outside of the greater city of New 
 York, Governor Whitman constituted each county of 
 the state (with one or two minor exceptions) a single 
 district within which a Legal Advisory Board was to be 
 appointed; but he made the greater city of New York
 
 THE BAR IN THE WAR 63 
 
 a single district, and appointed one board of three Per- 
 manent Members to organize the lawyers of the city. 
 That Board subdivided the work among the five bor- 
 oughs composing the municipality, and appointed in 
 each of the boroughs an Auxiliary Legal Advisory 
 Board of three Associate Members. Each borough 
 was in turn divided into subdistricts corresponding to 
 the Local Exemption Districts under the jurisdiction of 
 the Local Exemption Boards, and a Legal Advisory 
 Board of three Associate Members, known by the name 
 of a Local Law Board, was set up in each Exemption 
 District. There was thus constituted a skeleton organ- 
 ization composed of nearly 600 lawyers. But, as there 
 were about 540,000 registrants in New York City, who 
 would be required to respond to the questionnaire, it 
 was decided from an estimate of the average time 
 which would be occupied in filling in the questionnaire 
 of each registrant and otherwise advising him, that 
 there would be required not less than 3,000 lawyers. 
 Accordingly, provision was made for the appointment 
 of an additional number of Associate Members to be 
 assigned to the Local Law Boards in the several dis- 
 tricts in such numbers as it was thought they might 
 be required. Local Law Boards in each district were 
 required to determine the numbers of additional Asso- 
 ciate Members that were necessary and upon their 
 recommendation such members in large numbers have 
 been appointed. 
 
 There have been formally designated in the City of 
 New York by the Permanent Members of the Legal 
 Advisory Board, nearly 3,000 lawyers, all of whom 
 have taken the oath of office required under the pro- 
 visions of the regulations and have, since the regula- 
 tions went into effect, been actively employed in the 
 performance of their duties. The War Committee of
 
 64 PAPERS AND ADDRESSES 
 
 the Bar rendered active assistance in the selection of 
 Associate Members of the Legal Advisory Board, and 
 in its initial stages acted as the unofficial agency by 
 which the Legal Advisory Board has been able to erect 
 the organization above described. When the organiza- 
 tion was complete, offices were established. An exten- 
 sive central office organization became necessary and 
 was established in the Hall of Records Building in the 
 city of New York, in rooms furnished by the city. 
 In each of the boroughs also it has been necessary to 
 maintain a permanent office organization, since the 
 magnitude of the work and the necessity that it be 
 done with thoroughness and uniformity throughout 
 the city required that it be directed through the inter- 
 mediate agency of the Auxiliary Boards in the several 
 boroughs. In maintaining the several central offices 
 a large expense has been incurred for clerical assist- 
 ance, printing and other office expense. No appro- 
 priation was made by the law or the regulations for 
 such expense and it has been borne entirely by volun- 
 tary subscriptions by lawyers of the city, collected 
 through the agency of the War Committee. 
 
 The service of the bar called for by the regulations 
 was to be nation-wide. A copy of the questionnaire, 
 the letter of General Crowder to the governors of the 
 several states, and the Foreword of the President, was 
 sent to each of the 11,000 members of the American 
 Bar Association; and in section 30 of the regulations 
 it was stated that for the assistance of the governor of 
 each state he was to have the active cooperation and 
 assistance of the American Bar Association. It was 
 suggested in the regulations that the advisory board 
 in each district should be presided over either by the 
 county judge or a judicial officer having a similar jur- 
 isdiction. This suggestion has generally been adopted
 
 THE BAR IN THE WAR 65 
 
 and throughout this state the work has been organized 
 by the county judges, calling together the lawyers of 
 the several counties and organizing the entire bar to 
 assist. In New York City this procedure was not 
 practicable because the number of judges was insuf- 
 ficient to equip the local districts, and, furthermore, 
 they would have been unable to spare the time from 
 their judicial duties for the performance of the work. 
 The judiciary of each borough, was, however, con- 
 sulted in the selection of auxiliary boards ; and the im- 
 portance of the work was quickly recognized by the 
 courts, the Appellate Divisions in the First and the 
 Second Departments making a rule that engagement 
 of counsel in the work under the Selective Service Reg- 
 ulations was to be accepted as an excuse for the ad- 
 journment of cases in all the courts. We have been 
 informed that in some of the states the work occupied 
 so much of the time of the lawyers that the courts 
 were adjourned for considerable periods of time. 
 
 It is not possible at this time to give definite infor- 
 mation as to the percentage of registrants who availed 
 of the sendees of the Legal Advisory Boards. Since 
 they were constituted under the regulations and had 
 their official status confirmed by an oath of office taken 
 as officers of the federal government, it is, perhaps, 
 not unnatural that among the ignorant and the sus- 
 picious, misrepresentations should have been made 
 and feelings of antagonism engendered, which have 
 united to prevent some registrants from availing of 
 the services of the boards lest they should be used as 
 instruments of the government to induct registrants 
 into the army, even though they might be entitled to 
 deferred classification or even to exemption. The gov- 
 ernment, however, wisely insisted that the law should 
 be administered through local agencies and with ref-
 
 66 PAPERS AND ADDRESSES 
 
 erence to the character, occupation and susceptibilities 
 of localities ; and the justice with which, in the main, 
 the regulations have been enforced by the neighbors of 
 the registrants themselves, has tended to dissipate the 
 misunderstanding and prejudice. To some extent no 
 doubt the propaganda of our enemies invaded the local 
 exemption districts and sought to reduce the efficiency 
 of the selective service system. The foresight of the 
 government, however, and the experience of the local 
 boards and the cooperation of the Legal Advisory 
 Boards, reduced to a minimum the danger of such in- 
 terference, and up to the present time the classification 
 provided for in the regulations has been a most grati- 
 fying success. 
 
 MINUTE CONCERNING WAR 
 
 At the close of the reading of the foregoing paper, 
 Henry W. Taft presented the following minute, which 
 was unanimously adopted by the Association : 
 
 ''The New York State Bar Association affirms its unwav- 
 ering loyalty to the nation and pledges the united support 
 of the bar of the state to the Government of the United 
 States in the vigorous prosecution of the war. We rejoice 
 that the legal profession has been called upon by the Presi- 
 dent to give its aid in an important way in the classification 
 of our citizens who are to compose our army. We take pride 
 in the patriotic and zealous manner in which this duty has 
 been performed; for we believe that the raising and equip- 
 ment and transportation of our military forces should be 
 the chief concern of every true American citizen, in accord- 
 ance with his opportunity and to the extent of his ability. 
 
 "While criticism of such preparation, if based on a patri- 
 otic desire for the effective prosecution of the war, should 
 not be discouraged and is sometimes helpful, we denounce 
 opposition springing from political motives, indifferent patri-
 
 THE BAR IN THE WAR 67 
 
 otism or downright disloyalty. We suffer with scant patience 
 assertions of the sanctity of free speech from those who 
 oppose the war on narrow and technical views of our rights 
 under international law. The country has no time to listen 
 to the subtle distinctions of men whose speech gives aid and 
 comfort to the enemy. If such contentions do not conceal 
 hurtful and disloyal propaganda, at least they hamper the 
 government in the speed and effectiveness of war preparations. 
 "We have an abiding belief in the justice of our cause. 
 In disregard of international law, and against our solemn 
 and repeated warnings, Germany persisted in an inhuman 
 submarine warfare; and when American lives were lost there 
 was no recourse but war. But reparation for loss of life 
 is not the sole purpose of the war, for the defeat of the Cen- 
 tral Powers is necessary if civil liberty is to be preserved 
 throughout the world. The German conception of the state 
 is based upon an inexorable philosophy which demands and 
 cannot exist without, an autocratic government, and that in 
 turn would fail if it were not sustained by military force at 
 home and by implacable methods of warfare abroad. It is 
 a philosophy which exalts the idea of force and would trans- 
 mute the world into an armed camp, and the arts, the sciences, 
 the humanities and religion, would stand still or retrograde 
 while the nations of the earth were engaged in a struggle for 
 self-preservation. ' '
 
 REPORT OF THE WAR COMMITTEE
 
 IV 
 REPORT OF THE WAR COMMITTEE l 
 
 The War Committee begs leave to submit the follow- 
 ing report: 
 
 This committee was appointed pursuant to a reso- 
 lution adopted at the last annual meeting. Its duties 
 were not denned ; but as the war progressed, the com- 
 mittee has assumed that it could perform a useful 
 function by gathering information as to the war work 
 being done by lawyers throughout the state, and by de- 
 termining whether such work could be usefully coor- 
 dinated. 
 
 At the last annual meeting of the Association, the 
 chairman of the committee made a comprehensive 
 statement of the war work undertaken by lawyers in 
 the city of New York (Annual Report, 1918, page 212). 
 That work has continued with increasing activity. 
 The Executive Committee of the War Committee of the 
 Bar of the City of New York has recently made a 
 comprehensive report concerning its activities and 
 those of the Legal Advisory Boards, and your commit^ 
 tee is of the opinion that so far as the city of New York 
 is concerned, it can do no better than file that report 
 as a part of its report. It is, therefore, annexed hereto 
 and marked "Schedule 1." (Schedules 2, 3 and 4 
 contain merely statistical information and are omitted. ) 
 
 Your committee has sought to obtain from other 
 parts of the state information as to the activities of 
 members of the bar in war work. It addressed a cir- 
 cular letter to the chairmen of 57 Legal Advisory 
 
 i Report presented by Mr. Taft as chairman of the War Committee of 
 the Association at the annual meeting of the New York State Bar Asso- 
 ciation held in New York City January 17-18, 1919. 
 
 71 '
 
 72 PAPERS AND ADDRESSES 
 
 Boards and the presidents of 54 county and other local 
 bar associations. 
 
 There have been received 93 responses, reporting 
 more or less fully what has been done. These have a 
 certain historical value to the profession and they have 
 therefore been delivered to the secretary of the Asso- 
 ciation in order that they may be preserved in its 
 archives. 
 
 The work of lawyers in the rural communities has 
 been of the same general character as that in the cities 
 of the state. Practically the entire bar of the state 
 has been engaged in war work similar to that done 
 in the city of New York by both the War Committee 
 of that city and the Legal Advisory Boards, which was 
 fully described in the address of the chairman of this 
 committee at the last annual meeting and also in the 
 report of the War Committee just referred to. In 
 some parts of the state the Legal Advisory Boards have 
 not only aided in the enforcement of the Selective Ser- 
 vice Law, but have also given free advice to enlisted 
 men and their dependents, and engaged in patriotic 
 work of a general character. In other parts of the 
 state bar associations have organized the work. In 
 no place outside of the city of New York has the work 
 been of such a volume as to require an organization 
 like the War Committee of the Bar of the City of New 
 York, although in some cases the Legal Advisory 
 Boards have appointed sub-committees to advise en- 
 listed men, and much more frequently than in the city 
 of New York, have registrants, enlisted men and their 
 dependents been advised by lawyers at their offices. In 
 many parts of the state the work of lawyers has been 
 organized to aid in Liberty Loan and War Savings 
 Stamp campaigns, and they have also cooperated in the 
 drives of the Red Cross, the Young Men's Christian
 
 REPORT OF THE WAR COMMITTEE 73 
 
 Association, the Young Women's Christian Associa- 
 tion, the Knights of Columbus, the Jewish Welfare 
 Board, the War Camp Community Service, the Amer- 
 ican Library Association and the Salvation Army. 
 They have also actively participated as "Four Min- 
 ute" men in making patriotic speeches, and have 
 naturally had to deal with war risk insurance inves- 
 tigations and matters of allotments to dependents of 
 enlisted men. In some parts of the state where there 
 were few lawyers, it has been necessary for them to 
 call to their aid laymen who were directed by lawyers 
 in the work of aiding registrants to fill in question- 
 naires. Thus, in the county of Essex, where the en- 
 tire bar numbers only 20 lawyers, it was necessary to 
 call to their aid 73 laymen with whose cooperation the 
 legal advisory work of the county was efficiently per- 
 formed. 
 
 The work of the lawyers was, of course, everywhere 
 performed gratuitously and apparently with industry 
 and patriotic ardor. The work was organized in the 
 manner best adapted to the locality and particularly 
 with reference to the means of transportation. In 
 some of the counties headquarters had to be established 
 at a central point and branch committees organized for 
 the convenience of registrants, while in the larger cities 
 it became necessary to organize auxiliary and local 
 boards with an adequate number of associate members. 
 
 The committee has obtained from the Selective Serv- 
 ice Headquarters, formerly the Adjutant General's of- 
 fice, which is the agency through which the Governor 
 has acted in administering the Selective Service Law, 
 certain statistical information which has historical 
 value, and which it deems advisable to place in the 
 archives of the Association. 
 
 There were approximately 12,000 Associate Members
 
 74 PAPERS AND ADDRESSES 
 
 of Legal Advisory Boards in this state, of whom about 
 5,330 were in the city of New York, all except a negli- 
 gible number being lawyers. In each of 58 districts 
 constituted by the Governor, which, except in the case 
 of large cities, corresponded with the counties of the 
 state, three Permanent Members of the Legal Advisory 
 Boards and a sufficient number of Associate Members 
 were appointed. In each district for which a Local 
 (Exemption) Board was established, a Government 
 Appeal Agent was appointed. In most of the counties 
 this officer was the District Attorney or the Corpor 
 ation Counsel, although in the larger cities it was 
 not possible to fill the office in that way. That was 
 particularly the case in New York City. The duties 
 of the office required the appointment of a lawyer and 
 the duties of the agents were generally arduous and 
 of great value to the local boards. There were 435 
 appeal agents appointed. It is estimated by Major 
 Hutchinson, in charge of the Selective Service Head- 
 quarters at Albany, that ninety-five per cent, of all 
 registrants throughout the state received the assist- 
 ance of members of the Legal Advisory Boards. The 
 magnitude of the work may be inferred from the fact 
 that 2,521,988 men were registered in this state, of 
 whom 1,482,859 were registered in New York City. 
 Each of the twelve thousand Associate Members of the 
 Legal Advisory Boards thus advised on the average 
 200 registrants. 
 
 Your committee has been furnished by the Provost 
 Marshal General with some interesting information 
 concerning the participation of lawyers throughout 
 the country in the execution of the Selective Service 
 Law. Approximately 1,500 lawyers have been mem- 
 bers of local boards ; and many attorneys served upon 
 the District Boards which held the relation of appellate
 
 REPORT OF THE WAR COMMITTEE 75 
 
 tribunals to the local boards, and also had original 
 jurisdiction over claims for exemption and deferred 
 classification, based upon agricultural, industrial and 
 occupational grounds. 10,900 lawyers have been Per- 
 manent Members of Legal Advisory Boards, while 108,- 
 000 have been Associate Members of such boards. Ap- 
 proximately 4,700 lawyers have served as Government 
 Appeal Agents. As there are, according to the Census 
 Bureau, 131,909 lawyers in the United States, it thus 
 appears that almost the entire bar of the country has 
 been engaged in one capacity or another in aiding in 
 the building of an army through the provisions of the 
 Selective Service Law. There have been 371 lawyers 
 commissioned in the Judge Advocate General's depart- 
 ment. The states from which these have been ap- 
 pointed appear from a statement furnished to the 
 committee by the Provost Marshal General. Of the 
 total number 48 of those receiving commissions came 
 from New York. Forty-two lawyers have been ap- 
 pointed as members of the Army Service Corps to act 
 as claim adjusters in the Judge Advocate General's de- 
 partment. 
 
 At first the Adjutant General and later a special 
 bureau under charge of Major Hutchinson were des- 
 ignated by the Governor to administer the Selective 
 Service Law within the state. The work was largely 
 directed by lawyers. In New York City, where there 
 were over one million four hundred thousand regis- 
 trants, the burden thrown upon the Director of the 
 Draft was enormous, particularly during the last two 
 registrations, when Mr. Martin Conboy, a lawyer of 
 New York City, contributed in a conspicuous degree to 
 the efficient working of the law. His predecessors in 
 office had been two other lawyers of standing, Mr. 
 Roger B. Wood and Major Philip J. McCook.
 
 76 PAPERS AND ADDRESSES 
 
 It has not been practicable to ascertain the number 
 of lawyers volunteering their services in the govern- 
 mental departments and engaging in both civil and mil- 
 itary work incident to the war. It is a matter, how- 
 ever, of common observation that there have been large 
 numbers of members of the bar who have, in the most 
 patriotic and self-sacrificing way, abandoned their busi- 
 ness and devoted their entire time and skill to aiding 
 the government in administering the departmental 
 affairs, which, during the war, have been enormously 
 increased. Many of these volunteers have engaged 
 in work not strictly legal but of a kind in which their 
 training and experience have made them particularly 
 efficient. 
 
 It has not been possible to obtain reliable statistics 
 as to the number of lawyers who have entered the mili- 
 tary service. In most parts of the state, however, 
 large numbers of lawyers of military age have received 
 commissions in the army and the navy. In addition to 
 these the committee is informed by the Provost Mar- 
 shal General that of the entire number of lawyers in the 
 United States, there are 17,218 who are between the 
 ages of 21 and 30. There have been inducted into the 
 army under the Selective Service Law, 5,000 lawyers, 
 and undoubtedly most of theie are between the ages 
 mentioned. Those inducted were undoubtedly all in 
 Class I. In the state of New York the total number 
 of registrants was 2,521,988 and of these 254,198 were 
 inducted into the army. It would seem, therefore, 
 from these figures that the proportion of lawyers in- 
 ducted into the army was probably greater than that 
 of other classes of the community. 
 
 Neither accurate nor comprehensive information has 
 been available as to the casualties among lawyers who 
 have been in the military service of the country. It
 
 REPORT OF THE WAR COMMITTEE 77 
 
 may be possible a year hence to obtain information 
 upon this point and it is the hope of the committee that 
 it will be continued for the purpose of gathering in- 
 formation upon that and other matters connected with 
 the war during the coming year. 
 
 Finally, the committee is of the opinion that the char- 
 acter and extent of the participation of lawyers in all 
 of the activities incident to the war has reflected the 
 greatest credit upon the profession. This war has 
 brought into play great activity in all the physical 
 sciences, and among all of the belligerents scientists 
 have vied with each other in devising means and instru- 
 ments of warfare to overcome their enemies. But in 
 no previous war have those trained in the science of 
 law been called upon to devote their skill as lawyers to 
 the prosecution of the war, and it has remained for 
 this great World War to disclose that for the prompt 
 and efficient making of a great modern army, through 
 a universal draft law, it is necessary to call to the aid 
 of the executive departments those trained in the sci- 
 ence and practice of the law. Whether the task could 
 have been accomplished at all without the assistance of 
 the lawyers need not be asked. It is at least certain 
 that the Provost Marshal General was entirely correct 
 when he said that by the conception of the Selective 
 Service Law and Regulations, the members of the legal 
 profession had been given "a definite place in the or- 
 ganized ranks of the nation," that "no more important 
 post could be offered a lawyer at this time than the 
 active duty of assisting in the raising of our armies," 
 and that in this way he would become ' ' a very neces- 
 sary auxiliary of the selective service system." And 
 it is equally clear that the bar of this country took to 
 heart the appeal of the President for cooperation and 
 made it a matter of pride and patriotism that nothing
 
 78 PAPERS AND ADDRESSES 
 
 that was expected of the members of the profession 
 should be omitted. 
 
 Schedule 1 
 
 report of the executive committee of the war com- 
 mittee of the bar of the city of new york 
 
 To the War Committee of the Bar: At the com- 
 mencement of the war the seven organizations of law- 
 yers in this city appointed war committees. These or- 
 ganizations were the Association of the Bar of the City 
 of New York, the New York County Lawyers' Associa- 
 tion, the Brooklyn Bar Association, the Association of 
 the Bar of the County of Bronx, the Queens County 
 Bar Association, the Richmond County Bar Associa- 
 tion and the Lawyers' Club. The War Committee of 
 the Bar was formed by the amalgamation of the com- 
 mittees of these organizations into a single body. 
 
 The bar of this city numbers about fifteen thousand 
 members. Probably not more than four or five 
 thousand of these are members of bar associations. 
 Many lawyers have, therefore, found that membership 
 in an association is not essential to the honorable pur- 
 suit of professional activities. Yet bar associations 
 are the only mediums through which the profession 
 can give organized expression to its views and unite 
 in carrying them into effect. Action, therefore, by 
 bar associations is generally regarded as reflecting the 
 views of the profession; and in that sense the War 
 Committee of the Bar may be regarded as representa- 
 tive of the bar of this city. In order to secure the sym- 
 pathetic support of lawyers not members of these seven 
 associations of the city, the committee sent a cir - 
 cular letter to the fifteen thousand members of the bar 
 of the city, inviting their cooperation and requesting
 
 REPORT OF THE WAR COMMITTEE 79 
 
 them to give such information as would enable the 
 committee intelligently to call upon them for assist- 
 ance. About four thousand lawyers responded, patri- 
 otically tendering their services, and many of them 
 have from time to time been called upon by the com- 
 mittee for assistance, although the burden of the work 
 has necessarily fallen upon a relatively small number 
 of devoted volunteers who have been able and willing to 
 take from their other occupations a sufficient amount 
 of time to enable the committee to do efficient work. 
 
 THE CHARACTER OF THE WORK DIRECTED BY THE COMMITTEE 
 
 The committee received no charter of its powers 
 further than was contained in the announcement of 
 the committees of some of the associations, that it was 
 their purpose to render assistance to the national, 
 federal or city government, and to extend aid to mem- 
 bers of the legal profession serving with the land and 
 naval forces of the United States, or their dependents. 
 It was not deemed by your committee that lawyers as 
 an organized body need engage in such gigantic relief 
 work as that of the Red Cross and other similar organ- 
 izations, but that it should seek in cooperation with 
 them to bring to their aid the kind of skilled service 
 which lawyers better than any other body in the com- 
 munity were qualified to render. 
 
 The committee has always contemplated taking up 
 work for relief of destitute lawyers or their families, 
 and it may be that ultimately something will have to 
 be done in that direction. Up to the present time, how- 
 ever, few cases requiring such relief have been called 
 to the attention of the committee; and it is probable 
 that the committee will not find it necessary to do more 
 than to investigate cases needing relief, and to refer 
 them for pecuniary assistance to such organizations as
 
 80 PAPERS AND ADDRESSES 
 
 the Red Cross and the Young Men's Christian Asso- 
 ciation, whose funds are more adequate than we could 
 ever expect the funds of a professional committee to 
 be. The relations which the committee has established 
 with these great relief organizations afford a basis for 
 the belief that cases of financial distress can be ade- 
 quately dealt with in the manner indicated. 
 
 Another branch of work which it was thought might 
 engage the activities of the committee was the care 
 of the business of lawyers called to the front. In Eng- 
 land it was found that it was practicable to conserve 
 the practice of both solicitors and barristers in the 
 service. Although the willingness of the committee 
 to act as the intermediary in a similar way in this coun- 
 try was given much publicity, few cases have arisen 
 which have required attention; and in these the expe- 
 rience of the committee leads it to think that the con- 
 ditions of practice in this country are such as to ren- 
 der arrangements for conserving a law practice either 
 impracticable or unnecessary. In a few cases dealt 
 with by the committee private business arrangements 
 with professional friends have been made by older 
 lawyers going into the service. The large number of 
 the younger lawyers who were within the first draft 
 had not generally established a practice of such a per- 
 manent character that it could be conserved. 
 
 The activities of the committee have developed as 
 the war has progressed, and a justification for its ex- 
 istence has appeared in the insistent and continuous 
 demand for its services. Broadly speaking, its work 
 has been, first, the furnishing of gratuitous profes- 
 sional services to enlisted men and their dependents, 
 and, second, the mobilization from time to time of law- 
 yers in order to furnish to governmental agencies and 
 to the larger relief organizations like the Red Cross,
 
 REPORT OF THE WAR COMMITTEE 81 
 
 the Young Men's Christian Association and Mayor's 
 Committee, expert and gratuitous professional service. 
 
 SERVICES RENDERED TO ENLISTED MEN AND THEIR 
 
 DEPENDENTS 
 
 The committee has rendered services in a greater 
 variety of matters than would ordinarily arise in any 
 well-organized law office. It has dealt with contro- 
 versies over leases and other contracts; it has drawn 
 wills, trust deeds and other documents with reference 
 to real estate; it has advised as to life insurance and 
 partnership matters; it has adjusted domestic difficul- 
 ties of a great variety of kinds; it has studied and 
 advised as to the right of government employees to 
 receive compensation after entering the military serv- 
 ice; it has had to consider and seek to have applied 
 innumerable provisions of the War Risk Insurance Act 
 and Civil Rights Act ; it has handled claims for personal 
 and property damage, and has settled many claims 
 growing out of purchases of furniture and other arti- 
 cles upon the instalment plan; and it has frequently 
 been called upon to abate the rigor of the landlord and 
 tenant law in dispossess cases. The committee has 
 attempted to deal with the exigent affairs of men 
 called into the service and their dependents, and has 
 sought to create a feeling among them that they could 
 turn to the committee with confidence that they would 
 receive sound advice and would not be victimized by 
 charges which they could ill afford to pay; but where 
 the property involved or the character of the service 
 has made it appear that lawyers should be employed 
 and paid for their services, the committee has not hes- 
 itated to decline to act. It would be hard to describe 
 the perplexity of those seeking the aid of the committee, 
 due sometimes to ignorance of the affairs of life, some-
 
 82 PAPERS AND ADDRESSES 
 
 times to suspicions springing from painful experiences 
 with unreliable lawyers, and frequently in the case 
 of those living at a distance, to strangeness of environ- 
 ment. The relief which has been afforded to the most 
 ignorant and most humble has more than compensated 
 for the time and trouble which have been devoted 
 to the work; and the committee has reason to believe 
 that the army and navy authorities, as well as the 
 enlisted men, have regarded the services of the com- 
 mittee as contributing in a sensible degree to the equa- 
 nimity of our brave men who have gone to the front — 
 a condition essential to the efficient discharge of duty. 
 
 Reference has been made to the Civil Rights and War 
 Risk Insurance Acts. The Civil Rights Act gives to 
 the enlisted man the benefits of a stay. Under its pro- 
 visions the committee has negotiated the termination 
 of numerous purchases on the instalment plan and has 
 made satisfactory adjustments of other claims such as 
 contracts for the purchase of country lots, while in 
 numberless dispossess cases indigent dependents of 
 soldiers have been protected against inconsiderate land- 
 lords. The committee has not been able to deal with 
 the thousands of cases involving allotments, allowances 
 and insurance under the War Risk Insurance Act, since 
 the volume of such cases has required, for anything 
 like adequate treatment, such an organization as the 
 Red Cross. Yet in many cases of delayed allotments 
 the committee has had the satisfaction of giving com- 
 fort to the destitute dependents of enlisted men. 
 Many cases have arisen where allotments have been 
 made to unworthy wives, and it has been necessary to 
 obtain divorces as a means of establishing a case upon 
 which the allotment could be terminated. 
 
 The attention of the committee has been much occu- 
 pied by applications for discharges from the service
 
 REPORT OF THE WAR COMMITTEE 83 
 
 where men have been inducted either through misun- 
 derstanding, mistake or ignorance. The effective 
 treatment of this class of cases has required that the 
 committee establish relations with the camp authori- 
 ties, particularly at Camp Upton. Each case has re- 
 quired an investigation of home conditions, a report 
 by the Local Exemption Board and perhaps by the Gov- 
 ernment Appeal Agent. Certificates of physicians and 
 birth and marriage certificates have to be obtained, and 
 affidavits are frequently necessary. The committee 
 has endeavored to act in an impartial way, and it is 
 believed that the commanding officers in the camps 
 have placed much reliance upon its reports. One case 
 will serve to illustrate how meritorious such cases may 
 be. A young man of 22 years of age was the only 
 healthy member of a family of eight children ranging 
 from 4 to 18 years; four of the family were tubercu- 
 lous, one just recovered from an operation for appendi- 
 citis, and another with heart trouble, in the hospital. 
 The father was confined to his bed with tuberculosis 
 and chronic rheumatism. The enlisted son was earning 
 from $25 to $28 a week, all contributed to the support 
 of the family. Through ignorance, he failed to inter- 
 pose the claim of dependency, and, as a result, was in- 
 ducted, leaving at home eight little brothers and sisters 
 and a sick father and mother. We are now at work 
 endeavoring to procure the discharge of the young 
 man. 
 
 It is obvious that frequently the work of the com- 
 mittee must overlap that of organizations like the Red 
 Cross, but we repeat that the committee has, as a rule, 
 endeavored to confine itself to cases which require a 
 legal training and experience. Working arrangements 
 with the Home Service Section of the Red Cross, the 
 Young Men's Christian Association, the Young
 
 84 PAPERS AND ADDRESSES 
 
 Women's Christian Association, the Law Committee of 
 the Mayor's Committee, the Council of Organizations 
 for War Service, the Jewish Welfare Society, and a 
 number of settlement societies and other organizations 
 have been made, and it is understood by these organ- 
 izations that the committee is equipped to deal with 
 all cases which require the services of trained lawyers. 
 
 Efforts have been made, by notices extensively 
 posted in near-by camps, arsenals, armories and 
 throughout this city, particularly in the vicinity of the 
 railroad stations, to bring the committee to the atten- 
 tion of men in the service, and the existence and pur- 
 pose of the committee is known to the commanding offi- 
 cers of all encampments in this vicinity, and of all war- 
 ships and vessels engaged in the transportation of 
 troops. Sailors upon warships and upon transports 
 are frequently referred by their commanding officers 
 to the committee. A visit to the offices of the commit- 
 tee will give some idea of the volume of the work done 
 and will disclose an accumulated mass of correspond- 
 ence and records. The constant attendance of women, 
 children and enlisted men awaiting attention to their 
 cases will excite human interest and sympathy. 
 
 It is perhaps pardonable to say that the workers of 
 the committee have received a reward for their patri- 
 otic efforts, not alone in the consciousness of a patri- 
 otic duty well perf ormed, but also in numerous expres- 
 sions of gratitude on the part of those who have re- 
 ceived the benefit of the services of the committee. 
 Frequently this gratitude has been expressed in letters 
 written after the service has been performed. A sister 
 of an enlisted man, for instance, writes to our Execu- 
 tive Secretary, "You in particular and your organiza- 
 tion in general would oblige to accept my meager, 
 though heartiest thanks for your effort, manliness
 
 REPORT OF THE WAR COMMITTEE 85 
 
 and promptness withal in behalf of my brother 'Over 
 There' "; and a second-class seaman thanks the com- 
 mittee for recovering $7.50 from a hotel because it 
 had accomplished what he could not have done, 
 adding, "I reiterate my thanks for your prompt at- 
 tention and can assure you it heartens a man in 
 training to feel that the public is behind him." An- 
 other enlisted man who was troubled about the set- 
 tlement of his partnership affairs, says: "Your 
 courtesy and prompt attention in this moment of 
 need is a real service to me and I appreciate what you 
 are doing not only for me but for other sailors and 
 soldiers as well." A wife of an enlisted man having 
 a claim for $100, writes: "I cannot tell you how de- 
 lighted I am at the way you have taken care of this for 
 me. I think the committee is splendid and I wish I 
 could express my appreciation for what you have done 
 for me." 
 
 SERVICES RENDERED TO PUBLIC OFFICERS 
 
 From its organization the committee has been made 
 use of by public officers to aid by advice and also by 
 recommending lawyers for appointment to positions 
 requiring professional knowledge. The United States 
 Attorney for the Southern District of New York has 
 frequently called upon the committee to investigate 
 and report upon qualifications of lawyers to be ap- 
 pointed special assistants in his office, and particularly 
 those to be designated for voluntary service in repre- 
 senting the government in the prosecution of important 
 cases involving sedition and treason. At one time the 
 committee recommended 25 lawyers as assistants to the 
 United States Attorney to investigate evasions of the 
 draft, applications by alien enemies for permits and 
 suspected offenses against war measures. The com-
 
 86 PAPERS AND ADDRESSES 
 
 mittee aided the Director of the State Military Census 
 in advising him as to his powers under the state 
 statute, and prepared a set of forms for his use. The 
 service of the committee in connection with both the 
 first and the second selective service statutes has been 
 continuous. At the outset the committee aided the 
 Mayor's Committee in obtaining the services of 40 law- 
 yers who aided in organizing the Local Exemption 
 Boards throughout the city and in advising them as to 
 their duties. It then investigated the qualifications of 
 189 lawyers to act as appeal agents under the Selective 
 Service Law, and in the second draft it was called upon 
 to fill vacancies and to recruit the force of these appeal 
 agents. Where vacancies now occur resort is still had 
 to the committee to fill them. Recently the committee 
 has been asked to prepare an eligible list of lawyers 
 qualified to serve as commissioned officers in the Judge 
 Advocate General's department, and it has devoted 
 much time to the consideration of several hundred ap- 
 plicants with a view to giving to the Judge Advocate 
 General confidential assistance in equipping his force, 
 as soon as an increased number of officers is required. 
 Federal and other governmental authorities make fre- 
 quent calls upon the committee for lawyers for war 
 work and the compliance with such requests is an im- 
 portant part of the committee's routine work. 
 
 The organization of the Legal Advisory Boards pro- 
 vided for under the Selective Service Law and Regula- 
 tions fell in the first instance upon the War Commit- 
 tee, which was the only organized body equipped to deal 
 with the service. The first step taken by the Governor 
 was to nominate to the President as the chairman of 
 the Legal Advisory Board for the entire city of New 
 York, the chairman of the War Committee. The func- 
 tion of the Legal Advisory Board called for the services
 
 REPORT OF THE WAR COMMITTEE 87 
 
 of the legal profession generally, but in the city of 
 New York, which was created a district to be presided 
 over by a single Legal Advisory Board, it became neces- 
 sary to provide a very elaborate machinery for the ac- 
 complishment of the work. Ultimately this required 
 the appointment by the three Permanent Members of 
 the Legal Advisory Board nominated by the Governor 
 and designated by the President, of more than four 
 thousand lawyers as Associate Members of the Legal 
 Advisory Board to act in an organization covering all 
 of the 189 Exemption Districts throughout the city. 
 The War Committee of the Bar cooperated from the 
 outset with the Permanent Members in selecting these 
 Associate Members, and the two organizations acted 
 practically as a single agency in this work, as well as in 
 equipping a central office and the borough offices es- 
 tablished in the five boroughs of the city. The struc- 
 ture thus erected necessitated direction at the central 
 office and its equipment with a large force of clerks, 
 stenographers, file clerks, etc. In every way the War 
 Committee and the Legal Advisory Board have co- 
 ordinated their efforts in creating the necessary or- 
 ganization. During the interval between the drafts the 
 offices of the War Committee and the Legal Advisory 
 Board were consolidated, but during the active period 
 of registration and classification, it became necessary 
 to separate the offices, and the Legal Advisory Board 
 established its headquarters in the Hall of Records 
 building in quarters furnished to it by the city of New 
 York. In those parts of the country where a Legal Ad- 
 visory Board has been created for each Local Exemp- 
 tion District, the work of the Associate Members of the 
 Legal Advisory Board cannot have been particularly 
 burdensome or attended with any substantial expense 
 of administration. It was not anticipated, when the
 
 88 PAPERS AND ADDRESSES 
 
 law was passed, that there would be consolidated in a 
 single Legal Advisory district, as there were in this 
 city, 189 Exemption Districts, with nearly two million 
 registrants, composing nearly or quite ten per cent, of 
 the registrants throughout the country. The necessity 
 for erecting and maintaining during the period of the 
 draft the elaborate machinery for such a great district 
 was not anticipated, nor was provision made for the 
 necessary expense it involved. It became necessary, 
 therefore, to provide for the expense by voluntary con- 
 tributions collected through the agency of the War 
 Committee. 
 
 The work of the Legal Advisory Boards is not yet 
 completed. The classification of the remaining regis- 
 trants, numbering more than half a million men within 
 the city, will probably occupy two or three months, and 
 during that time the organization of the Legal Advis- 
 ory Boards must be kept fully equipped and in a high 
 state of efficiency. The continued cooperation of the 
 War Committee in this work will be required, and 
 through no other source can the financial requirements 
 of the board be supplied. 
 
 It is perhaps suitable that the committee should refer 
 to expressions of appreciation of its work. The Attor- 
 ney General of the United States wrote to the chairman 
 of the committee : 
 
 "To my mind, the movement, you speak of is extremely 
 important and should be of tremendous assistance to the 
 government and especially the department of which I am 
 in charge. 
 
 "In my opinion, the finest sign of the times is the large 
 number of really first-class men (and I am happy to say 
 many lawyers are among them) who are volunteering their 
 services to the country without compensation.
 
 REPORT OF THE WAR COMMITTEE 89 
 
 "As time goes by, it is not unlikely that my department 
 may desire to avail itself of the services of a number of the 
 attornej's you have in mind in assisting in the enforcement of 
 the terms of that (the Selective Service) law." 
 
 A captain in the coast artillery wrote with reference 
 to a matter where the committee's action aided in the 
 settlement of a question involving the pecuniary in- 
 terest of many men in the service : 
 
 "I feel that you have rendered a service to our country 
 that is most valuable, as the question that you have had ad- 
 justed will enable many men who have had military training 
 at the expense of the federal government to serve their coun- 
 try in this emergency who otherwise would be barred from 
 rendering that service under the existing orders in regard to 
 dependent relatives, and I want you to know that I appreciate 
 the service you have rendered not only on behalf of the men 
 in my command who are thereby enabled to serve with us, 
 but also on account of the men in other commands who are 
 enabled to continue to serve their country in the present 
 emergency. 
 
 "The interest and attention that you have given to this 
 case I will never forget and I believe that I will be able to 
 discharge the duties of my office the better on account of the 
 example of unselfish service that you have set for me." 
 
 The Adjutant General of the state acknowledged the 
 cooperation of the committee in connection with the 
 selection of his representative in this city, as follows: 
 
 "I appreciate most warmly the patriotic service which you 
 and your committee have rendered and are rendering, and 
 I am sure that whoever you recommend to fill this important 
 and useful position in New York City as my representative 
 will be an excellent choice." 
 
 The work of the committee will not end with the war.
 
 90 PAPERS AND ADDRESSES 
 
 It will continue, and probably expand until normal 
 peace conditions prevail. After the war and in the 
 period of demobilization of the army, and on the return 
 of the enlisted men to this country, their affairs will 
 require the kind of attention that the committee will 
 be able to give, especially to those who land at this 
 port. 
 
 No systematic record of cases requiring legal as- 
 sistance has been made. One of our most valued volun- 
 teer office workers who has kept an individual diary has 
 dealt with 600 matters between April 22d and Septem- 
 ber 2d of this year — apart from innumerable telephone 
 conversations and minor matters not worthy of a 
 record. Our correspondence and other records show 
 that since January 1st of this year, 2,799 cases have 
 been dealt with by written advice. In addition there 
 are about 250 cases monthly in which oral advice has 
 been given. 
 
 The work of the committee has required a force of 
 paid assistants, including stenographers, telephone 
 operators, messengers, etc. 
 
 It has been necessary to purchase a considerable 
 amount of office furniture. For a time the committee 
 was able to obtain office accommodations free of rent, 
 but the expansion of its work finally required larger 
 quarters, for which a substantial rental is being paid. 
 The money to meet all of these expenses has been sub- 
 scribed exclusively by lawyers, and it will be necessary 
 to ask them to provide further funds in the near future 
 for the needs of the committee. 
 
 The legal assistance has been rendered by a number 
 of lawyers who have regularly devoted a certain por- 
 tion of their time to the work, attending at the office at 
 agreed hours, and more and more has the work been 
 concentrated in the hands of a few of these volunteers.
 
 REPORT OF THE WAR COMMITTEE 91 
 
 The committee has had upon call the services of from 
 thirty to fifty lawyers outside of the office to whom per- 
 sons needing legal assistance have been sent. 
 
 Too much praise cannot be accorded to Mr. Mount- 
 fort Mills, the Executive Secretary of the committee, 
 who has from its organization given his entire time to 
 the work and has displayed such industry, patience, 
 sympathy, good sense and good temper, that he is de- 
 serving of the thanks of the profession for making it 
 an instrumentality for good, and of the gratitude of the 
 country for having devoted himself to a very useful 
 war work. 
 
 Executive Committee, 
 
 Henry W. Taft, 
 
 Chairman. 
 
 November 1, 1918.
 
 ASPECTS OF BOLSHEVISM AND 
 AMERICANISM
 
 ASPECTS OF BOLSHEVISM AND 
 AMERICANISM * 
 
 It would be impossible in the time allotted to me to 
 do more than sketch the outstanding features of Bol- 
 shevism and to point out how they conflict with the 
 social and political institutions under which we enjoy 
 the benefits of civil liberty. Perhaps I may be of some 
 service, however, by indicating with a few broad 
 strokes the fundamental principles of Bolshevism, and 
 pointing out how it is at war with every principle of 
 true Americanism. 
 
 HISTORICAL ORIGIN 
 
 Bolshevism is based upon the system of economic 
 philosophy founded by Karl Marx and Frederick En- 
 gels, who collaborated for many years. Their doc- 
 trines were regarded as revolutionary and they were 
 driven first from Germany, where they were born, and 
 then from other continental countries. They finally 
 found refuge in England, where they continued during 
 their lives to exercise an extraordinary influence by 
 their bold and able advocacy of revolutionary theories. 
 Their writings, and particularly those of Marx, were 
 most voluminous. "Das Kapital," his great work, is 
 a voluminous work which probably few people in the 
 world have ever read, but which among economists has 
 excited about as much comment and controversy as 
 the writings of Rousseau. The influence of Marx on 
 the socialistic thought of the last century was extra- 
 ordinary. 
 
 i Address to the League for Political Education, Carnegie Hall, 
 New York City, December 6, 1919. 
 
 95
 
 96 PAPERS AND ADDRESSES 
 
 In spite of statements of some of the moderate Social- 
 ists to the contrary, the Bolshevist system is theoretic- 
 ally and practically based upon the doctrines of Marx 
 and Engels. Lenin and Trotsky assert this to be the 
 fact ; and the veneration in which Marx is held by the 
 Bolshevists of to-day is indicated by the fact that the 
 Bolshevist regime do not object to the substitution in 
 public places of his picture for that of Christ. 
 
 It has been said that the doctrines of Marx were in- 
 spired by the consuming passion of hate, and a recent 
 writer has said of him: 
 
 "He was without religion, having been conveyed from 
 Judaism to Protestantism by his father at the age of six, and 
 having abandoned Protestantism for aggressive Atheism when 
 he grew to manhood. He was a man embittered by persecu- 
 tion, enraged by antagonism, soured by adversity, exasperated 
 by suffering. . . . His inspiring and dominant passion was the 
 passion of hate — hate in its virulent and peculiarly Germanic 
 form . . . 'Das Kapha!' (1867) is the enduring testament 
 of Marxian animosity. It is a work of dogmatic mythology, 
 the formula of a new religion of repulsion, the Koran of the 
 class war." 
 
 THE MABX DOCTEINE 
 
 This doctrine was embodied in the so-called Com- 
 munist Manifesto issued by Marx and Engels in 1847. 
 It is based upon the assumption that the proletariat, or 
 the laboring man, has no national character and that 
 1 ' law, morality, religion are to him so many bourgeois 
 prejudices, behind which lurk in ambush just as many 
 bourgeois interests." And it adds: 
 
 "The proletarians cannot become masters of the produc- 
 tive forces of society, except by abolishing their own pre- 
 vious mode of appropriation, and thereby also every other 
 previous mode of appropriation. They have nothing of their
 
 ASPECTS OF BOLSHEVISM 9? 
 
 own to secure and to fortify; their mission is to destroy all 
 previous securities for and insurances of, individual prop- 
 erty." 
 
 There is some obscurity in Marx's theory as to the 
 abolition of property in general, but it is apparent that 
 he proposed to abolish all property that belongs to the 
 bourgeois class. 
 
 He adds : 
 
 "The bourgeois claptrap about the family and education, 
 about the hallowed correlation of parent and child, becomes 
 all the more disgusting the more, by the action of modern 
 industry, all family ties among the proletarians are torn 
 asunder, and their children transformed into simple articles 
 of commerce and instruments of labor." 
 
 Then upon the question of nationality he says, "The 
 workingmen have no country. We cannot take from 
 them what they have not got." 
 
 Marx does not deny that Communism of his form 
 abolishes all religion and all morality, and makes no 
 attempt to constitute them on a new basis. He be- 
 lieves that political power is merely the organized 
 power of one class for oppressing another. He dis- 
 misses with contempt the economists, philanthropists, 
 humanitarians, improvers of the conditions of the 
 working class, organizers of charity, members of the 
 Society for the Prevention of Cruelty to Animals, 
 temperance fanatics and "hole and corner" reformers 
 of every imaginable kind. The Manifesto closes with 
 these ominous words: 
 
 "The Communists disdain to conceal their views and aims. 
 They openly declare that their ends can be attained only by 
 the forcible overthrow of all existing social conditions. Let 
 the ruling classes tremble at a Communistic revolution. The
 
 98 PAPERS AND ADDRESSES 
 
 proletarians have nothing to lose but their chains; they have 
 a world to win. 
 
 "Workingmen of all countries, unite." 
 
 Wilhelm Liebknecht, interpreting Marx, says that 
 " socialism and ethics are two separate things." 
 
 LENIN AND TROTSKY 
 
 The most influential leaders of Bolshevism have been 
 Nicolai Lenin, whose real name is Vladimir Ulianov, 
 and Leon Trotsky, whose real name is Leon Bronstein. 
 The assumption of a false name has been quite common 
 among Russian revolutionists and has no particular 
 significance. Lenin is of an old Russian family of the 
 landed gentry class, his father having been a local 
 judge. He is about fifty years of age, has had a uni- 
 versity education, is an economist of distinction, having 
 been the author of works on Russian economics which 
 have attracted wide attention. His elder brother killed 
 a civil officer of high rank and was hanged for the 
 offense, an episode which it is thought has had much 
 to do with the radical views of the surviving brother. 
 Lenin does not come of a Jewish family. Trotsky is a 
 Jew and has traveled much throughout the world, hav- 
 ing been the editor of a Russian newspaper in this 
 city for some time. His power in the Bolshevist revo- 
 lution came from his talent as an orator in influencing 
 the people to rise. He is now the Minister of War in 
 the Soviet cabinet. His writings show a remarkable 
 power of expression. Others among the Bolshevist 
 regime are men of unusual intellectual equipment. In- 
 deed, Lenin has sought out men of force and the power 
 of efficiency. The Minister of Education, Lunarch- 
 arsky, is a man of superior power and is said to have 
 made extraordinary efforts to found a system of pop-
 
 ASPECTS OF BOLSHEVISM 99 
 
 ular education, all, however, founded upon the basis of 
 the Bolshevist social and political system. 
 
 BOLSHEVIST TERMINOLOGY 
 
 We will not understand the real nature of modern 
 Bolshevism without some attention to the meaning of 
 some of the terms used in describing it. In the first 
 place, the peoples of the world are divided roughly into 
 the proletariat or proletarians and the bourgeoisie. 
 Imperialists and aristocrats form such a small part of 
 the population that they are negligible. Temporarily 
 the soldiers, and especially the Cossacks, had to be 
 recognized as a part of the ruling classes. 
 
 The term "Bolsheviki" etymologically means "the 
 majority. " At one time in the history of the struggles 
 of the various revolutionary groups in Kussia one 
 group upon some issue then important, but now wholly 
 forgotten, obtained and held for some time a majority 
 in the socialistic assembly and was for the occasion 
 called the "Bolsheviki." The other group was known 
 as the "Menshevists" or "Mensheviki," meaning the 
 minority. Lenin was then of the group of Bolsheviki. 
 Trotsky was affiliated with another group. In the sub- 
 sequent developments in the socialistic groups the Bol- 
 sheviki lost their supremacy and this continued through 
 the first revolution, resulting in the government of 
 Kerensky, which preceded that of the Soviet Republic. 
 During all of that time Lenin and Trotsky and their 
 associates were in the minority, but they clung to the 
 name, Bolsheviki, although it no longer signified that 
 it was the majority party. Indeed it was, until shortly 
 before the fall of Kerensky, in a small minority. 
 
 The "proletariat" is the great body of the working 
 people, — those who work with their hands with no ex- 
 pectation of anything beyond a wage which will supply
 
 100 PAPERS AND ADDRESSES 
 
 their daily needs. The Bolshevist loves to describe 
 the proletariat as being the great exploited class ; that 
 is, the class whose labor has been, in the history of the 
 world, exploited for the sole benefit of the employers, 
 who are their oppressors. 
 
 The "bourgeoisie" are, roughly speaking, the great 
 middle class, including those engaged in professions of 
 all kinds, manufacturers, shopkeepers, large and small, 
 farmers owning their lands or employing laborers, and 
 all persons having any income, however small, from in- 
 vested property of any kind. At this point it is suffi- 
 cient to say that a small shopkeeper in Avenue A, 
 earning a bare existence for himself and his family, or 
 a woman school-teacher, who by dint of strict economy 
 has purchased a hundred dollar Liberty Bond, or a 
 small truck farmer owning a farm of ten acres on which 
 he supports his growing family, or a poor college pro- 
 fessor — all of these would be classed among the bour- 
 geoisie, excluded, as I shall show, from all political and 
 social influence. 
 
 Much confusion arises through the repeated asser- 
 tions that the aim of the Bolshevist is to abolish all 
 capitalistic forms of government. We have witnessed 
 in this country great accumulations of capital by finan- 
 cial and industrial corporate consolidations. These 
 have been attended by monopolistic practices and other 
 abuses, and in spite of some benefits which they have 
 undoubtedly conferred upon the country, they have 
 been denounced where they have unduly encroached. 
 But when the Bolshevist denounces the capitalistic 
 form of government he does not refer alone to the great 
 business enterprises with which we are familiar. He 
 refers to the entire system under which an opportunity 
 is given to the individual citizen, however humble, by 
 energy, thrift and ability, to engage in any kind of
 
 ASPECTS OF BOLSHEVISM 101 
 
 profession or business, for the purpose, by his own 
 efforts, of advancing his position in the world and ac- 
 cumulating for the support of his family even the most 
 modest fortune. We pride ourselves upon maintaining 
 a system which holds out to the individual an oppor- 
 tunity and encourages him to make the best of it, bring- 
 ing to bear his physical, moral and intellectual qualities 
 to achieve success in his vocation. It is that which 
 the Bolshevists denounce as the chief feature of the 
 capitalistic system, insisting upon a dead level of all 
 the peoples of the world. 
 
 The official name of the Bolshevist government is the 
 "Russian Socialist Federal Soviet Republic." 
 "Soviet" is a generic term meaning a union or council. 
 It is formed on the basis of occupation of its members, 
 like a labor union. The government is popularly 
 known as the "Soviet Government" because it is based 
 upon the representation of soldier, industrial and agri- 
 cultural Soviets all over Russia, which send delegates to 
 an All-Russian Congress of Soviets, which is supposed 
 to be representative of the proletariat. From that 
 body an executive committee not exceeding 200 mem- 
 bers is elected and exercises supreme legislative and 
 executive power. It forms a council of commissars 
 which is entrusted with the general management of the 
 affairs of the republic. It issues all decrees and takes 
 all measures for their execution. As there is no judic- 
 iary department, or any need of one, practically the ex- 
 ecutive committee is the autocratic governing body of 
 the republic. That committee is controlled by Lenin 
 and Trotsky. 
 
 The representatives of the government, both na- 
 tional, provincial and local, are called "Commissars," 
 and within their jurisdiction their powers are very 
 extensive.
 
 102 PAPERS AND ADDRESSES 
 
 Some confusion arises from the use of the words 
 "Socialism," "Anarchy" and "Bolshevism." The 
 Kerensky government was a Socialist government. 
 While it represented many of the ideas of the Bolshev- 
 ists, it was far less radical. Particularly it did not 
 believe, as the Bolshevists do, in overthrowing all ex- 
 isting social and economic conditions by immediate or 
 direct action. Lenin regarded its policy as ' ' the policy 
 of rosewater ' ' and expressed nothing but contempt for 
 its professions that it intended to bring about Social- 
 ism. In this country most of the Socialists do not 
 believe in Bolshevism. Anarchy seeks the abolition of 
 all government. It is neither Socialism, nor Bolshev- 
 ism, nor Communism. Under Socialism the state is to 
 operate industries and nationalize property, but it is 
 still to be maintained by a strong government. Bol- 
 shevism as now in effect is the very antithesis of An- 
 archism because it maintains a highly centralized and 
 autocratic governmental organization. 
 
 WHAT IS BOLSHEVISM? 
 
 Bolshevism seeks to overthrow the entire social, in- 
 dustrial and political system which has existed since 
 the middle ages. It would create a dictatorship, with 
 the proletariat as a single governing class. While it 
 does not necessarily destroy or banish the middle 
 classes or bourgeoisie, it confiscates their property 
 without compensation, deprives them of all of their 
 political rights, and reduces them to an intolerable 
 slavery. It seizes the property of all landowners and 
 distributes it among the proletariat. It establishes a 
 despotism far more powerful and widespread, and far 
 more cruel in its repression of individual opinion and 
 action, than ever existed under the dominion of the 
 Czars. It deprives the individual of all hope of im-
 
 ASPECTS OF BOLSHEVISM 103 
 
 proving his material condition in life, and forces him 
 to be content if his barest need of food and clothing and 
 shelter is assured to him. 
 
 THE EIGHTS OF PROPERTY 
 
 In order to secure the support of the poorer peas- 
 antry the Bolshevists seized all agricultural lands, not 
 by confiscation, because Lenin said that was a juridical 
 process, but by the direct revolutionary action of the 
 peasants themselves. The poorer peasantry were put 
 in possession not only of the lands of the great land- 
 owners, but also of the land of the smaller holders who 
 had by thrift and industry themselves acquired a few 
 acres. The shops of the small merchants everywhere 
 were also seized by the government and nationalized 
 without compensation. 
 
 Lenin says of the small farmers that, after all, they 
 are " simply another variety of capitalists"; while of 
 small merchants Trotsky says : 
 
 "Your little shopkeeper is a sober-minded man; his chief 
 abhorrence is 'taking a risk.' Yet he has at the same time 
 a gorgeous imagination : every little shopkeeper expects to 
 become a Rothschild. This combination of an ansemic sobriety 
 with an impotently riotous imagination is the very essence 
 of the petit bourgeois policy." 
 
 The government seized all live stock and equipment 
 of agricultural lands, of farmers, large and small alike, 
 turning it over to the poorer peasantry to be worked 
 by them for their daily support. Under no circum- 
 stances, however, was the peasant to be permitted to 
 employ laborers or to work the land for his own profit, 
 being entitled only to the barest support for himself 
 and his family.
 
 104 PAPEBS AND ADDRESSES 
 
 In the cities all factories and other property, includ- 
 ing the banks, was seized and nationalized. 
 
 The entire doctrine of private property upon which 
 our system of democratic government is based was thus 
 abolished under the Bolshevist system, and all incen- 
 tive to thrift and conservatism, and all motive for im- 
 proving man's physical, mental and moral condition, 
 through individual initiative, were swept away. 
 
 WRITTEN LAWS 
 
 A few references to the constitution and decrees of 
 the Soviet Government will show some other ideas 
 which it is sought to put into practical operation : 
 
 1. There is to be universal military training, but only the 
 workers are to have arms. The non-working elements, how- 
 ever, may be forced to do other military duty. 
 
 2. Citizenship is granted to foreigners without complicated 
 formality, which means that the proletariat of other coun- 
 tries are to be welcomed into Russia to strengthen the 
 Soviet regime. 
 
 3. The right to use land (sub-surface deposits, waters, for- 
 ests and fundamentally natural resources) cannot be obtained 
 through purchase, rental, inheritance or any other private 
 transaction. 
 
 4. The right to use land is not transferable. All arrange- 
 ments by which the use of land is obtained secretly are 
 prohibited. 
 
 5. Every citizen may profess any religion or none at all. 
 Religious or judicial oaths are abolished. A solemn promise 
 is all that is necessary in any case. No church or religious 
 society has the right to own property. 
 
 6. All banking business is made a state monopoly, and all 
 existing banks, public or private, are nationalized. 
 
 7. All courts and lawyers are abolished. People's courts 
 are set up. They are to be governed by the law of the former 
 government "only in so far as those laws are not annulled
 
 ASPECTS OF BOLSHEVISM 105 
 
 by the revolution, and do not contradict the revolutionary- 
 conscience and revolutionary conception of right." 
 
 8. Marriage may be annulled by the petition of both par- 
 ties or even of one of them. 
 
 9. Inheritance, whether by law or by will, is abolished, 
 and upon the death of an owner all his property of all 
 kinds becomes the property of the government. 
 
 10. No distinction is made between the relationship that 
 arises within wedlock and that which arises out of wedlock. 
 
 THE ATTITUDE TOWAKDS THE BOURGEOISIE 
 
 There is to be a "stern and unrelenting dictatorship 
 toward the bourgeoisie." The dictatorship is to be 
 enforced by the Red Army. Against moderate Social- 
 ism the proletarian revolution waged a merciless and 
 uncompromising struggle and they made no secret that 
 any counter-revolution was to be suppressed by the 
 "merciless use of mass terror." Precisely how far 
 this terror was extended it is impossible to ascertain. 
 But there is little doubt that the slightest suspicion of 
 counter-revolutionary movements led to the shooting 
 on the spot of thousands and thousands of entirely 
 innocent Russian citizens. 
 
 Compulsory labor was carried to the point of abso- 
 lute slavery. The bourgeoisie, persons who had been 
 in good condition in life, were set to work cleaning the 
 streets. For this they received no compensation. 
 
 THE PRESS AND PUBLIC MEETINGS 
 
 A committee was formed called the Committee to 
 Combat the Counter-Revolution. This committee dealt 
 with a variety of subjects, including the press, public 
 meetings and compulsory labor. 
 
 At the beginning of the Bolshevik regime, all of the 
 newspapers in Russia were placed under the control of 
 a Revolutionary Tribunal of the Press. This took the
 
 106 PAPERS AND ADDRESSES 
 
 place of the courts, and from its decrees no appeal was 
 permitted. It was created by decree of the Executive 
 Committee and not by legislation. It had jurisdiction 
 of any ''attempt upon the rights and interests of the 
 revolutionary people." This gave it an enormous, un- 
 controlled and autocratic power, which it could exercise 
 without any restraint whatsoever, for the suppression 
 of all unfavorable comments in the newspapers. 
 
 This was followed by a decree that no advertisements 
 of any kind were to be published except in official jour- 
 nals. This, of course, made it impossible to maintain 
 any independent newspaper. It is not surprising that, 
 in one province, out of 254 journals, 247 were thus 
 suppressed. 
 
 In addition to this the sale of newspapers was na- 
 tionalized so that nobody could purchase newspapers 
 for sale except from government agents. 
 
 Meetings and communications to the government by 
 petition were held under the strictest control under a 
 penalty of being regarded as counter-revolutionary. 
 
 It was decreed that "any person that shall speak 
 against the rule of Soviets shall be brought before the 
 Revolutionary Tribunal. ' ' 
 
 It was also decreed that no information as to the 
 charge should be given and no one allowed to see the 
 prisoners. 
 
 POLITICAL POWER UNDER THE BOLSHEVIST REGIME 
 
 As I have said, according to the theory of Marx and 
 Lenin the class-conscious proletariat consists of the 
 mass of the people who work with their hands and who, 
 under the old system, were employed by the bour- 
 geoisie. They profess to give to all the proletariat 
 equal rights and privileges. As a matter of fact, how- 
 ever, the entire Marxian theory is based upon the dom-
 
 ASPECTS OF BOLSHEVISM 107 
 
 inance of the industrial Soviets composed of the prole- 
 tariat in the large cities, which are compact and easily 
 manipulated bodies. It is obvious from the writings 
 of both Marx and Lenin that their sympathies are 
 with these urban industrial Soviets, and that it was 
 largely as a matter of expediency that they extended 
 their system so as to include the soldiers and the poorer 
 peasants. The soldiers composing what is called the 
 "Red Army" are absolutely necessary for the suc- 
 cess of the schemes of the Soviet Government. With- 
 out force it could not be maintained for a day. Not 
 only do they give to the soldiers the greatest political 
 power but they maintain them and surround them with 
 more material comforts than any other class in the 
 country. "With the great mass of agricultural workers, 
 numbering perhaps 135,000,000, neither Marx nor 
 Lenin had any sympathy. Marx is said to have re- 
 garded them with little less than contempt, and the 
 present Bolshevist regime has afforded ample evidence 
 that they have taken the peasant into account only be- 
 cause in no other way could they impose their system 
 upon the country. Indeed, it is extremely doubtful 
 whether Lenin himself has any really sympathetic con- 
 cern for the rights of any part of the proletariat, and 
 evidence is abundant that he thinks, as the ruling 
 classes of the Russia of the Czars themselves thought, 
 that the Russian people can only be governed by an 
 autocratic government. And the government now pre- 
 sided over by Lenin is of a highly centralized and 
 despotic character. While he and his associates de- 
 scribe it as based on the dictatorship of the proletariat, 
 the fact is that it is a dictatorship of a small minority 
 of able, determined and highly trained individuals 
 over the proletariat itself, which it deceives and mis- 
 leads. We may well believe the statement attributed
 
 108 PAPERS AND ADDRESSES 
 
 to Lenin that from his experience in the establishment 
 of the new government, he f onnd that of every hundred 
 of the Bolsheviks that he had to work with, sixty were 
 imbeciles, thirty-nine were rascals and one was a Bol- 
 shevik by conviction. 
 
 And how are Lenin and his associates able to impose 
 upon the Russian people the centralized Soviet Govern- 
 ment? 
 
 This is accomplished chiefly by granting to the Red 
 Army and to the industrial workers in the cities an 
 enormous preponderance of political power. The 
 basis of apportionment of delegates to the provincial 
 Soviets which elect delegates to the National Soviet is 
 so arranged that for each vote of the poorer peasantry 
 the factory or industrial worker in the city has eight 
 votes while the soldier has eighty votes; or, to put it 
 in another way, the soldier has one vote, the urban fac- 
 tory or industrial worker one-eighth of a vote and the 
 peasant one-eightieth of a vote. In the All-Russian 
 Congress there is one delegate for every 25,000 of the 
 proletariat living in the cities and only one such dele- 
 gate for every 125,000 of the peasant proletariat living 
 in the country. No wonder Lenin says : 
 
 "If the lands are confiscated, so long- as the proletariat rule 
 in the great centers and the political power is handed over 
 to the proletariat, the rest will take care of itself." 
 
 Thus, by bribing the soldiers with political power and 
 personal favoritism, by using the public funds collected 
 by the confiscation of private property for the support 
 of the Red Army, and by multiplying the power of the 
 Soviets in the great industrial centers, it has resulted, 
 as Lenin himself has boasted, that the political, indus- 
 trial and social control of 180,000,000 of people, of 
 which more than 135,000,000 are peasants, has been
 
 ASPECTS OF BOLSHEVISM 109 
 
 turned over to the despotic power of not more than 
 200,000 industrial workers in the cities. 
 
 To this grossly unequal basis of representation there 
 is added a complete exclusion from all political power 
 of the middle and higher classes of the community. 
 
 Thus, there are disfranchised and disqualified from 
 holding office all who employ hired labor for profit or 
 who have any income derived without work, private 
 merchants, trade and commercial brokers, ecclesiastics 
 of all kinds, and all persons deprived by any local 
 soviet of their rights as citizens on account of "selfish 
 or dishonorable offenses for the period fixed by the 
 sentence, " a device by which a local soviet has the 
 power to deprive a citizen of the right to vote for any 
 capricious reason. 
 
 There are also excluded from the right of franchise 
 lawyers, educators, bankers, managers of industry, 
 commercial travelers, experts, accountants, editors, au- 
 thors and all other persons engaged in occupations 
 classified as non-essential or non-productive. A small 
 farmer who employs a single hired helper is deprived 
 of his vote. 
 
 WHY SHOULD AMERICA CONCERN ITSELF WITH BOLSHEVISM ? 
 
 What has America to do with the settlement of the 
 internal affairs of the Russian people? Have they not 
 the right to establish any government satisfactory to 
 them? 
 
 So long as the Russian people confine their govern- 
 mental activities within their own country, not only 
 under the rules of international law, but also under our 
 long-established policy concerning our relations to for- 
 eign countries, we should let the Russian people work 
 out their own salvation. 
 
 But the policy of the Soviet Republic is governed by
 
 110 PAPERS AND ADDRESSES 
 
 the Bolsheviki and they make no secret that their gov- 
 ernmental operations are not to be confined within the 
 boundaries of Russia. 
 
 THE INTERNATIONAL ASPECT OF BOLSHEVISM 
 
 Lenin, Trotsky and all of the leaders of the Bolshev- 
 ist Government declare that Bolshevism cannot be 
 maintained unless all of the rest of the world is made 
 Bolshevist. They have instituted an aggressive cam- 
 paign among all classes in other countries of the world 
 and are seeking to spread their propaganda for the 
 avowed purpose of overturning all existing govern- 
 ments. 
 
 Trotsky says : 
 
 'Internationalism in our eyes is not an abstract notion 
 existing only to be betrayed at every moment ... but an 
 immediately dominant, profoundly practical principle. Per- 
 manent, decisive successes are not conceivable for us without 
 an European revolution." 
 
 An appeal by Trotsky, Lenin and Tschitcherin, Com- 
 missar for Foreign Affairs, on August 1, 1918, stated 
 that the 
 
 " Salvation of the Russian Revolution constitutes a com- 
 mon interest of the proletariat of all countries. Forced to 
 war against Entente capital, which wishes to add new chains 
 to the chains already imposed upon us by Germany, we turn 
 to you with the cry: 
 
 " 'Long live the solidarity of the workers of the whole 
 world ! Long live the French, English, American and Italian 
 proletariat, together with the Russian ! Down with the rob- 
 bers of International Imperialism ! Long live the Inter- 
 national Revolution! Long live the peace of the peoples!' " 
 
 The constitution of the Soviet Republic adopts a
 
 ASPECTS OF BOLSHEVISM 111 
 
 coat of arms inscribed with these words, "Russian 
 Socialist Federal Soviet Republic. Workers of the 
 World Unite." 
 
 The very existence of the Bolshevist Government, 
 professing as it does that it cannot survive unless it 
 brings all the world under its sway, is a menace to 
 mankind in every part of the globe. No organized gov- 
 ernment can rest without adopting the most efficient 
 defensive measures. Our American Commonwealth is 
 not beyond the reach of the cunning and insidious 
 propaganda which is only too plainly being spread 
 throughout the land. 
 
 BOLSHEVISM AND AMERICA 
 
 The fundamental principles upon which Bolshevism 
 is based are irreconcilably at war with the Anglo-Saxon 
 idea of civil liberty, because they are predicated upon 
 inequality of opportunity of citizens, deprivation of 
 personal and property rights and cruel and oppressive 
 despotism. 
 
 However much we may sympathize with the Russian 
 people, so long as they are forced to tolerate the soviet 
 form of government, their government must of neces- 
 sity be at war with the social, industrial and political 
 institutions of every other government on earth. The 
 constitution and decrees under which the Executive 
 Committee of the All-Russian Soviet Government acts 
 are themselves in effect a declaration of war against 
 every nation on earth because they assert the necessity 
 of overthrowing every existing government. They 
 preclude diplomatic relations; they compel the expul- 
 sion or effective surveillance of so-called diplomatic 
 representatives that the Soviet Republic may send out, 
 and they require the complete suspension of all com-
 
 112 PAPERS AND ADDRESSES 
 
 mercial and financial relations with the government and 
 the people. 
 
 WHAT IS MEANT BY AMERICAN DEMOCRACY 
 
 From the time when, in 1215, the barons extorted 
 Magna Charta from King John, we have been building 
 up through the development of the English Constitu- 
 tion and by our own Declaration of Independence and 
 Federal Constitution, a social and political system 
 under which the individual citizen enjoys in the highest 
 degree all of the benefits connoted in the term, civil 
 liberty. 
 
 By the Declaration of Independence, it is declared 
 that "All men are created equal," meaning that each 
 citizen is entitled to the opportunity enjoyed by every 
 other citizen to engage in any pursuit he may choose, 
 and that all men are "endowed by their Creator with 
 certain inalienable rights, that among these are life, 
 liberty and the pursuit of happiness; that to secure 
 these rights governments are instituted among men, 
 deriving their just powers from the consent of the 
 governed. ..." 
 
 By the Constitution the individual is guaranteed by 
 ample provisions against encroachments upon his 
 natural and legal rights. He is guaranteed the right to 
 trial by jury; his freedom of speech and that of the 
 press cannot be abridged ; his right to assemble and to 
 petition the government for a redress of grievances is 
 preserved ; he is secured against unreasonable searches 
 and seizures ; he cannot be deprived of life, liberty or 
 property without due process of law ; and his private 
 property cannot be taken for public use without just 
 compensation. An accused person is entitled to be in- 
 formed of the nature and cause of the accusation and 
 to be confronted with witnesses against him. Cruel
 
 ASPECTS OF BOLSHEVISM 113 
 
 and unusual punishments are not to be inflicted, and all 
 persons are to be assured the equal protection of the 
 laws. 
 
 These are some of the rights which have been re- 
 garded as the essentials of Anglo-Saxon liberty, and 
 have existed for centuries. The establishment of the 
 system now in force in Kussia would practically sweep 
 them all away. 
 
 Moreover, the Bolshevist entirely eliminates from 
 his ideology anything corresponding to our love of 
 country or our patriotism. He substitutes for it what 
 he calls the international dictatorship of the proletariat. 
 He says that Bolshevism requires a "United States of 
 Europe" and, in place of the " antiquated national 
 fatherland," a new fatherland of "the Republican 
 Europe, unless the proletariat alone would be enabled 
 to revolutionize and to reorganize the whole world. 
 One axis of the world reorganization of industry is to 
 be the United States of Europe and the other United 
 States of America." The only moral or intellectual 
 sentiment upon which this is based is what the Marxist 
 calls the "class consciousness" of the proletariat, and 
 that sentiment has no moral or intellectual motive ex- 
 cept a determination to obtain social, industrial and 
 political power, and to use it for the purpose of com- 
 plete destruction of the personal and property rights of 
 every other class in the community. It is based upon 
 no elevating or ennobling principle. In its practical 
 application it has led to a cruel and degrading present 
 and it promises nothing but a dismal and hopeless 
 future. 
 
 DANGER TO AMERICA 
 
 Fortunately the danger of a complete overturning of 
 our institutions is not great. When the horrid monster
 
 114 PAPERS AND ADDRESSES 
 
 of Bolshevism attempts to invade this country it will 
 find itself confronted with a land where eighteen mill- 
 ions of houses are occupied by twenty-one millions of 
 families, where nine million families own their own 
 homes, where twelve million people have deposits in 
 mutual stock or Postal Savings Banks to an aggregate 
 amount of $6,500,000,000, where 6,500,000 farms have 
 an aggregate value of $41,000,000,000, and yield an an- 
 nual product of more than $8,500,000,000; where 
 schools are maintained at an annual expense of $650,- 
 000,000, with an attendance of more than 20,000,000 
 children; where 3,000 public libraries have on their 
 shelves more than 75,000,000 books, and where the 
 total wealth of the country, in an advanced state of 
 profitable cultivation, amounts to not less than $225,- 
 000,000,000. 
 
 The destructive principle of Bolshevism can never 
 make a substantial breach in such defenses as these, 
 but if not actively combatted it can make progress 
 which will produce widespread disturbance and unrest, 
 and its indirect effect is already doing vast damage to 
 the interests of the people of this country. Early pre- 
 paredness and a determined policy to exclude the 
 agents of Bolshevism will save us in the future enor- 
 mous effort, immense expense and much social and in- 
 dustrial unrest. 
 
 DANGER FROM INDISCRIMINATING PERSONS 
 
 There are in this community many worthy people 
 always ready to seize upon new ideas for the uplifting 
 of the human race. Some of them are not blessed 
 with the power of discrimination and permit their 
 hearts to lead them they know not whither. From 
 such people we hear expressions of sympathy for 
 the Russian people, coupled with statements showing
 
 ASPECTS OF BOLSHEVISM 115 
 
 their ignorance of the real character of the Bolshevist 
 regime. But they leave the impression with those less 
 informed that they have studied the Bolshevist system 
 and that they approve its principles. 
 
 I have read statements of American citizens of high 
 intelligence who have visited Russia and have seen in 
 a limited field the operations of the Soviet Govern- 
 ment. Sympathizing with the Russian people in their 
 desire to be emancipated from the fearful oppression 
 to which they were subjected under the rule of the 
 Czars they have been only too willing to accept the 
 assurances and the predictions of the soviet leaders 
 that their government would produce an ideal condi- 
 tion. 
 
 Such persons as these have returned to this country 
 and have told the people in the magazines and by word 
 of mouth some of the things that they observed. Most 
 of them have failed to perceive that the Soviet Republic 
 is founded on fundamentally vicious principles which 
 are radically at variance with all our preconceived no- 
 tions of civil liberty and social justice. 
 
 Failing to state the case fully, these agitators have 
 by indirection at least given the impression that they 
 approved the principles of the Soviet Republic, and 
 their standing in the community has been such that 
 their statements have tended to do infinite harm. 
 Such people as these add their efforts to the Anarchist, 
 the Bolshevist and the radical Socialist, and all these 
 combined are contributing to a propaganda which is 
 tending to undermine our most cherished social and 
 political institutions and is having the effect of pro- 
 ducing widespread unrest among the poor and the 
 ignorant, especially those of foreign birth.
 
 116 PAPERS AND ADDRESSES 
 
 WHAT IS THE REMEDY? 
 
 Forceful government repression of Bolshevist propa- 
 ganda will undoubtedly be necessary. But our demo- 
 cratic institutions are not well adapted to the eradica- 
 tion by such means of agitation even when it is sedi- 
 tious. We must not neglect other defensive measures 
 such as the education of the people as to the character 
 of the Bolshevist movement. No group in the com- 
 munity can be so efficient in conducting such a cam- 
 paign of education as the League for Political Educa- 
 tion. But we must also arouse Congress and state 
 legislatures to enact laws adapted to meet the menace, 
 and urge officers of the state and federal government 
 to enforce them. 
 
 LEGAL EEMEDIES 
 
 In a letter recently written by the Attorney General 
 of the United States to the Senate much interesting in- 
 formation has been furnished to the country. 
 
 It appears that his department has a list of sixty 
 thousand radically inclined individuals in this country; 
 that 202 radical newspapers in foreign languages, and 
 106 of such newspapers in the English language, are 
 published in this country, and that 144 radical news- 
 papers published in foreign countries are distributed 
 to subscribers here. In addition, hundreds of books, 
 pamphlets and other publications receive wide circula- 
 tion. A wave of radicalism swept over the country 
 after the armistice was signed, as is evidenced by the 
 fact that since that time about fifty radical newspapers 
 have commenced publication. A large number of these 
 papers advise the destruction of our government and 
 urge their readers to prepare for the coming revolu- 
 tion. As many of these papers have no advertising
 
 ASPECTS OF BOLSHEVISM 117 
 
 matter, they are probably supported from outside 
 sources. In addition to written matter we need no 
 assurance from the Attorney General that there is free 
 oral expression of radical views. The need of some 
 kind of repressive measures is thus very evident. 
 
 But the condition of the state and federal laws, or 
 the measures taken by public officials for their enforce- 
 ment, do not seem to be effective. 
 
 The Attorney General is of the opinion that an at- 
 tempt to overthrow our government is not a crime, un- 
 less it amounts to treason, rebellion or seditious con- 
 spiracy ; and that most of the propaganda is not of that 
 character; that the preaching of anarchy and sedition 
 or advising defiance of law is not a crime, and that ad- 
 vising and openly advocating the unlawful obstruction 
 of industry and the unlawful and violent destruction of 
 property is not a crime. 
 
 If the Attorney General is correct in this opinion the 
 situation is certainly startling. He recommends, and 
 the President in his last message urged, the passage of 
 a federal statute to cover the situation, but seventy 
 bills for the same purpose were introduced in the last 
 Congress and none was passed. Moreover, the Attor- 
 ney General does not appear to be sanguine that the 
 federal government can adequately deal with the sub- 
 ject. He urges that Congress recommend to the sev- 
 eral states the enactment of similar statutes so that 
 the services of their law-enforcing machinery may be 
 availed of. He says that they have at their command 
 infinitely greater forces than the United States Gov- 
 ernment for detecting and punishing seditious acts, and 
 cites the case that in New York there are 12,000 police- 
 men and that the District Attorney has a force of 50 
 prosecuting attorneys. He contrasts this with the fact 
 that under the appropriation granted by Congress to
 
 118 PAPERS AND ADDRESSES 
 
 the Department of Justice the maximum number of 
 men available to the department is limited to 500 for 
 the entire United States. 
 
 But is not the protection of the American people 
 against the effects of revolutionary propaganda a mat- 
 ter peculiarly within the proper function of the federal 
 government? And is it not humiliating that the Attor- 
 ney General is forced to complain that funds are with- 
 held which are necessary for the protection of our 
 fundamental institutions? The annual estimates of 
 appropriations for the federal government amounted 
 to about $5,000,000,000 for the fiscal year of 1921 of 
 which only about $150,000,000 were appropriated for 
 the executive (White House and government depart- 
 ments) and the judicial departments. In such an 
 enormous aggregate it would seem that the United 
 States Government could afford to furnish to the De- 
 partment of Justice, if that department made the re- 
 quest, a sufficient number of assistants for the enforce- 
 ment of the law to protect American citizens against 
 the invasion of Bolshevism. 
 
 The First Amendment of the Federal Constitution 
 prohibits Congress from making a law " abridging the 
 freedom of speech, or of the press." Under this pro- 
 vision the mere holding of an opinion or even express- 
 ing it cannot by act of Congress be made a crime except 
 in an extreme case. The advocacy, either orally or in 
 writing, of the overthrow of our government and with 
 the intent of accomplishing that result, may undoubt- 
 edly be made a crime by act of Congress. The Attor- 
 ney General may be right that the existing statutes re- 
 lating to the subject are not adequate. The question 
 does not seem to have been pushed for decision in the 
 higher courts. But if more legislation is necessary,
 
 ASPECTS OF BOLSHEVISM 119 
 
 Congress should not delay in enacting it and appropri- 
 ating funds sufficient for its effective execution. 
 
 The exceptional character of the Bolshevist menace 
 makes it a matter of national concern. The federal 
 government should primarily attempt to protect us 
 against its insidious effects. We should not be de- 
 pendent upon state action, and yet where, as in New 
 York State, there already exists an adequate statute, 
 the power of our state government ought to be brought 
 to bear to abate the evil. The New York Anarchy 
 Statute, passed on account of the assassination of Pres- 
 ident McKinley, is probably sufficient. We hear much 
 of investigations and are startled by disclosures. But 
 there seem to be few prosecutions and few convictions. 
 
 DEPORTATION 
 
 Prosecution under criminal laws is not the only 
 remedy open to the federal government. 
 
 The deportation of objectionable aliens is a remedy 
 much more expeditious in most cases and equally effec- 
 tive. 
 
 The immigration laws as amended in 1918 probably 
 do not need to be amended to enable the Department of 
 Labor to deport objectionable aliens. During the war 
 such aliens were deported under the Espionage Act, 
 but that act will probably not be available in time of 
 peace. While under the immigration law the accused 
 is entitled to hearings and to be admitted to bail and 
 may on a writ of habeas corpus get his case into the 
 courts, it still remains the fact that vigorous prosecu- 
 tion by the Department of Labor can do much to im- 
 prove the situation. The administration by that de- 
 partment does not, however, appear to have accom- 
 plished substantial results and there is grave ground
 
 120 PAPERS AND ADDRESSES 
 
 for the opinion that in this city the efforts of the Com- 
 missioner of Immigration were not at critical times 
 marked by much vigor. 
 
 While deportation ought to be an effective remedy, 
 here again the Attorney General complains that Con- 
 gress refused appropriations to his department and the 
 Department of Labor for the enforcement of the law. 
 The American people are thus made to suffer because 
 of a lack of coordination between the executive and the 
 legislative departments. 
 
 Too much publicity cannot be given to this unfortun- 
 ate situation.
 
 THE LEAGUE OF NATIONS
 
 VI 
 THE LEAGUE OF NATIONS x 
 
 THE AMERICAN VIEW 
 
 The belief undoubtedly pervades the mass of the 
 people of the world that now is the time to find a way to 
 prevent war in the future. The feeling is more or less 
 inarticulate, but it is none the less widespread and 
 insistent; and the statesmen in the Peace Council re- 
 alize that a serious effort must be made to devise some 
 practicable method to give it form and effect. 
 
 The United States has been the foremost nation of 
 the earth in promoting the settlement of international 
 disputes by arbitration and the postponement of war 
 during the process. It has seemed strange, therefore, 
 that a definite project for the avoidance of war should 
 have met at first with hesitation and criticism in this 
 country. But this attitude has been much changed by 
 open discussion and the burning out of the fires of 
 partisanship ; and the solicitude lest our implication in 
 European affairs should result in an undue surrender 
 of our independence has been largely removed. 
 
 By long-established national habit, based on the 
 warnings of Washington and Jefferson against en- 
 tangling alliances, we have come to attach vital import- 
 ance to the condition of political isolation which our 
 geographical remoteness has enabled us to maintain. 
 But the present discussion is making it increasingly 
 clear that the wise policy of a century ago is not appli- 
 cable to the conditions of to-day, first, because through 
 cable communications and quick ocean transportation, 
 
 i Reprinted from a series of articles published in the New York 
 Times of March 24-25, and April 4, 1919. 
 
 123
 
 124 PAPERS AND ADDRESSES 
 
 the United States has become geographically no more 
 remote from the continent of Europe than some of the 
 European nations are distant from each other, and, 
 second, because there no longer exist concerts of 
 powers, offensive and defensive alliances and secret 
 dynastic intrigues, possible only among autocratic sov- 
 ereigns and entered into, not to avoid war, but to secure 
 supremacy through the use of force. 
 
 Washington's warning 
 
 The Farewell Address of Washington was delivered 
 in 1796; the Revolutionary War had ended less than 
 fifteen years before; the French Revolution had over- 
 turned French civilization and produced chaos and the 
 Napoleonic wars were beginning ; and our own friendly 
 relations with France, based on her generous and de- 
 cisive assistance in the Revolution, had been seriously 
 threatened. Our chief interest at that time was to 
 create a self-sustaining nation, not dependent upon 
 foreign nations for the continuance of its national 
 existence. Such a thing as the formation of a league 
 of nations to avoid war was far from the thoughts of 
 the nations of the world, and even if it had been at- 
 tempted there would have been little reason for the 
 newly created American commonwealth to become a 
 party to it. 
 
 It was, therefore, obviously true, to use Washing- 
 ton's words, that Europe had "a set of primary in- 
 terests which to us have none or a very remote relation. 
 Hence she must be engaged in frequent controversies 
 the causes of which are essentially foreign to our con- 
 cerns. Hence, therefore, it must be unwise in us to 
 implicate ourselves by artificial ties in the ordinary 
 vicissitudes of her politics or the ordinary combina-
 
 THE LEAGUE OF NATIONS 125 
 
 tions and collisions of her friendships or enmities." 
 But the situation which Washington thus visualized 
 was totally different from that which now confronts 
 the world. The nations in the Peace Council are not 
 striving to sustain some monarch upon a tottering 
 throne, or to establish the divine right of kings, or to 
 secure a balance of power by transforming the nations 
 of Europe into permanent armed camps, or to compel 
 weak nations to submit to alien and oppressive rulers. 
 On the contrary, the war and the peace negotiations 
 have been a titanic effort to make all governments the 
 real representatives of the people, to prevent military 
 autocracy as a principle of government from ever again 
 arising to threaten the peace of the world, and to pre- 
 serve modern civilization from the horrors of Anarchy 
 and Bolshevism. 
 
 THE NECESSITY FOR MAKING THE LEAGUE A PART OF THE 
 
 PEACE TREATY 
 
 We still find responsible statesmen who think that 
 this nation has contributed all that it is called upon to 
 do and can now with honor step aside and commit to 
 the European nations the stupendous task of recon- 
 structing the nations of the European continent which 
 have been shattered by the war. But what is the situa- 
 tion? When we went to war with Germany not only 
 our national institutions but also modern Anglo-Saxon 
 civilization were threatened, and we became as vitally 
 involved as any European nation in the defense of Bel- 
 gian neutrality and the destruction of military autoc- 
 racy as a principle of government. For these objects 
 of the war we became irrevocably committed to fight to 
 the bitter end, and it was for that that we assumed a 
 national indebtedness far greater than our people had 
 ever before dreamed of creating, and equipped and
 
 126 PAPERS AND ADDRESSES 
 
 transported with miraculous speed an army of two 
 million men to the field of battle, where more than 
 fifty thousand of our young men made the supreme 
 sacrifice and four times as many were grievously 
 wounded. 
 
 And we have succeeded in our lofty and unselfish 
 aims. The public opinion of the world, including prob- 
 ably that of the people of the Teutonic nations them- 
 selves, condemns forever any disregard of treaty obli- 
 gations among civilized nations, and military autocracy 
 as a principle of government has been banished forever 
 from the earth. Out of Germany, Austria and Russia, 
 new nations are to be carved and set up upon the prin- 
 ciple of self-determination of their people on the basis 
 of race and nationality. The Polish part of Germany, 
 Austria and Russia is to be transformed into a Czecho- 
 slovak self-governing state of ten million inhabitants. 
 The democracy of Jugo-Slovakia is to be created in the 
 south out of Austria and Hungary. New boundaries 
 are to be established on race lines in the Balkans. 
 Upon the same principle Roumania is to be enlarged by 
 adding Transylvania and Bessarabia. Constantinople 
 is to be made international, while the Dardanelles are 
 to be an open avenue for all nations. Independent 
 states are to be established in Palestine, Syria, 
 Armenia and Mesopotamia. 
 
 Thus, seven new independent European republics 
 and at least four infant but autocratic governments are 
 to be set up in Asia Minor. 
 
 But it is too much to expect that the new nations thus 
 created will in their infancy develop a national self- 
 restraint which will save them from border quarrels 
 among themselves, and already we begin to hear of 
 threatened hostilities. Furthermore, it is doubtful 
 whether a German system will emerge from the exist-
 
 THE LEAGUE OF NATIONS 127 
 
 ing confusion which can, without the assistance of other 
 nations, preserve order in central Europe or defend 
 itself against the disturbing effects of Anarchy and 
 Bolshevism pressing on its eastern front, although it is 
 to the interest of the world that Germany should have, 
 as soon as possible, a strong and permanent system 
 controlled by the will of the people; for, however op- 
 pressive, however medieval, however disturbing to 
 the peace of the world the German system was, at least 
 it effectively maintained domestic stability and order 
 in central Europe, and now that that has been destroyed 
 beyond the hope of restoration the victors are re- 
 sponsible for finding a substitute, or they fail in their 
 duty to humanity. While it is hoped that the interposi- 
 tion of Czecho-Slovakia, a greater Eoumania and Jugo- 
 Slovakia, between Germany and Russia, will save Ger- 
 many and the Western European countries from the 
 destructive influences of Russian unrest, this cannot be 
 assured without the joint action of all the European 
 allies, and without the effective cooperation of the 
 United States. 
 
 America's responsibility 
 
 In this situation this country cannot in honor escape 
 a fair share of responsibility. It would be futile, as it 
 would be dishonorable, for us now to say that the condi- 
 tions which were exacted from Germany, Austria, 
 Turkey and Bulgaria were no longer the concern of the 
 United States. However much we may have differed 
 as to the extent to which it would have been advisable 
 for us to become involved in European affairs, it be- 
 came apparent early in the war, not only that the fate 
 of the war-weary European nations depended upon us, 
 but that the struggle was so desperate and the issue so 
 doubtful, that no longer could it be said in the words of
 
 128 PAPERS AND ADDRESSES 
 
 Washington that Enrope "has a set of primary inter- 
 ests which to us have none or a very remote relation." 
 On the contrary, there was a common danger, where 
 the situation had little relation to the ordinary friend- 
 ships and enmities and rivalries of the European na- 
 tions of the eighteenth or nineteenth century. 
 
 It was this situation that led President Wilson on 
 January 8, 1918, to formulate as a basis for peace the 
 Fourteen Points, and while many Americans felt, as I 
 did, that he to an unnecessary extent took the initiative 
 in injecting this country into the internal affairs of the 
 European continent, it was upon the basis of those 
 points (with two exceptions insisted upon by England) 
 that the armistice was agreed to by all of the belligerent 
 powers. 
 
 The Fourteen Points, among other things, included a 
 readjustment of the frontiers of Italy, along "clearly 
 recognized lines of nationality," the safeguarding of 
 the peoples of Austria, for the "autonomous develop- 
 ment" of the nations which they saw fit to establish 
 (subsequently modified so as to provide for the recog- 
 nition of a Czecho-Slovak nation and the nationalistic 
 aspiration of the Jugo-Slavs and the restoration of the 
 occupied territories of Roumania, Serbia and Monte- 
 negro) ; free and secure access to the sea to be accorded 
 to Serbia, the relations of the Balkan states to be de- 
 termined by historically established lines of allegiance 
 and nationality, and international guarantees of polit- 
 ical and economic independence and territorial integ- 
 rity of the Balkan states to be entered into; all the 
 nationalities except those in the Turkish portions of 
 the Ottoman Empire — that is to say, Syria, Palestine, 
 Armenia and Mesopotamia — to be "assured an un- 
 doubted security of life and an absolutely unmolested 
 opportunity of autonomous development," and the
 
 THE LEAGUE OF NATIONS 129 
 
 Dardanelles to be permanently opened as a free pas- 
 sage to the ships and commerce of all nations under in- 
 ternational guarantees; and an independent Polish 
 state composed of territories inhabited by Polish pop- 
 ulations with access to the sea "whose political and 
 economic independence and territorial integrity should 
 be guaranteed by international covenant." 
 
 On July 4, 1918, the President added the further idea 
 that the combined power of free nations was to be used 
 to " check every invasion of right and serve to make 
 peace and justice the more secure by affording a 
 definite tribunal of opinion to which all must submit 
 and by which every international readjustment that 
 cannot be amicably agreed upon by the peoples directly 
 concerned, shall be sanctioned." 
 
 And finally, by Article XIV of the original points it 
 was specifically stated that "a general association of 
 nations must be formed under specific covenants for 
 the purpose of affording mutual guarantees of political 
 independence and territorial integrity to great and 
 small states alike." 
 
 With history thus made by the inevitable march of 
 events and with the responsibility of this country thus 
 solemnly formulated by the President of the United 
 States as a condition of peace, and accepted by the vic- 
 torious and the defeated nations alike, how can this 
 country now withdraw from sustaining to the utmost 
 any responsibility which can reasonably be expected of 
 it, to give substantial guarantees for the permanent 
 maintenance of the national structures which are to be 
 brought into being by the treaty of peace t 
 
 Not only has the matter become the subject of a 
 solemn covenant on our part, but the people of Europe 
 in their desperation rightly look to this country to save 
 them from Anarchy and Bolshevism. Indeed, it is not
 
 130 PAPERS AND ADDRESSES 
 
 an exaggeration to say that they believe that if we were 
 to withdraw our moral backing and our potential ma- 
 terial support, they would be deprived of the chief bul- 
 wark protecting them from a threatened destruction 
 of modern Christian civilization and that a league of 
 nations, however mandatory its terms, would be but a 
 "rope of sand." 
 
 It is for these reasons that it is necessary not only to 
 provide for a league of nations as a part of the treaty 
 of peace, but also to retain the principles of Article X. 
 
 WILL, THE LEAGUE SUCCEED? 
 
 The chance that a league of nations will accomplish 
 something substantial is enhanced by the epochal hap- 
 penings of this war. In no previous war have so many 
 nations of the world been engaged on one side or the 
 other. Never have there been so many men called 
 from their peaceful occupations. Never before has 
 there been such a loss of life or such an enormous de- 
 struction of property; never so much individual and 
 collective distress and hardship. No previous war has 
 left so many nations on the verge of bankruptcy, which 
 only many years of rehabilitation can remove. 
 
 The people of the world are not likely soon to forget 
 these things, or the possibilities of the development in 
 future wars of scientific methods for causing destruc- 
 tion of property and life ; and all of these things have 
 combined to produce an aversion to war far deeper 
 than has ever before existed. But that is not all. 
 
 For the first time in the history of the world, a situa- 
 tion has been created in which peace is no longer to be 
 dependent upon the will of individual sovereigns or 
 autocratic governments. Practically every nation of 
 the world will from this time forth have a government
 
 THE LEAGUE OF NATIONS 131 
 
 representing, in one form or another, the people, and it 
 is they who desire to abolish war as a means of settling 
 disputes. This fact gives confidence that covenants, 
 and even expressions of intention, for the avoidance of 
 war, will not hereafter be regarded as merely the insin- 
 cere assurances of autocrats trained in the school of 
 diplomatic intrigue, or as the high-sounding but 
 academic expressions of momentary aspirations of 
 good but impotent peace commissioners. 
 
 The Constitution of the League 
 
 the preamble 
 
 The object of the signatory powers in adopting the 
 Constitution of the League of Nations is stated in the 
 preamble to be : 
 
 "To promote international cooperation and to secure 
 international peace and security." 
 
 This main purpose is to be obtained by (1) "the ac- 
 ceptance of obligations not to resort to war," (2) "the 
 prescription of open, just and honorable relations be- 
 tween nations," (3) "the firm establishment of the un- 
 derstandings of international law as the actual rule of 
 conduct among governments," and (4) "the mainten- 
 ance of justice and scrupulous respect for all treaty 
 obligations in the dealings of organized people with 
 one another." 
 
 THE COVENANTS 
 
 Opponents of the Constitution in its present form 
 have based their objections chiefly on Articles VIII, X, 
 XII, XIII, XV and XVI, and there is considerable mis- 
 understanding as to the substance and effect of those
 
 132 PAPERS AND ADDRESSES 
 
 articles. If, however, the rule of construction usually 
 applied to treaties is adopted, the meaning and effect 
 of the covenants becomes sufficiently clear. In spite of 
 considerable prolixity of style and some involved sen- 
 tences, due probably to inserting amendments in the 
 original draft without sufficient attention to literary 
 modeling, any ambiguity that remains after such con- 
 struction is not so serious as to be a menace to the vital 
 interests of the United States. 
 
 As the purpose of the League is expressed to be the 
 security and peace of the world, a meaning tending to 
 produce a different result is not to be adopted unless 
 the words used make it necessary. 
 
 As Elihu Root, Henry Cabot Lodge and George Tur- 
 ner said in the Alaskan boundary arbitration in 1903 : 
 "We are not at liberty to ascribe a meaning to the 
 terms of a treaty which would frustrate the known and 
 proved purpose of the instrument unless the words 
 used in the instrument are such as to permit of no other 
 construction. Whoever asserts a construction which 
 would produce such a result must show not merely that 
 it is a possible construction, but that it is a necessary 
 construction and that any other is impossible." (Sen. 
 Doc. No. 162, 58th Congress, Second Session, I, 53.) 
 
 ARTICLES Vlil AND IX 
 
 Article VIII provides for ' ' the reduction of national 
 armaments to the lowest point consistent with national 
 safety." It requires the Executive Council to " deter- 
 mine for the consideration and action of the several 
 governments what military equipment and armament 
 is fair and reasonable in proportion to the scale of 
 forces laid down in the program of disarmament ; and
 
 THE LEAGUE OF NATIONS 133 
 
 these limits, when adopted, shall not be exceeded with- 
 out the permission of the Executive Council.' ' 
 
 Thus, the determination of the Executive Council as 
 to the proportion of each state's reduction is to be only 
 1 'for the consideration and action" of that state, and 
 any limitation imposed does not become binding until 
 ' ' adopted ' ' by such state. The whole arrangement de- 
 pends upon the good faith of the high contracting par- 
 ties, and there is not even a moral obligation on the 
 part of any state to ' ' adopt ' ' a limitation which is not 
 " consistent with national safety and the enforcement 
 by common action of international obligations," or 
 which does not give fair consideration to "the geo- 
 graphical situation and circumstances of each state." 
 These are matters which would necessarily have to be 
 determined by each state largely for itself, but in a 
 spirit which is "fair and reasonable" in view of the 
 general intent of the treaty. 
 
 Several desirable amendments of Articles VIII and 
 IX have been proposed. One is that the Executive 
 Council of the League shall, every five years, reexamine 
 the limitation of armament proposed, and make recom- 
 mendations as in the first instance. This amendment 
 is advisable, although it is doubtful whether it is neces- 
 sary. 
 
 Mr. Root has suggested that the commission consti- 
 tuted under Article IX "shall have full power of in- 
 spection and verification ... as to armament, equip- 
 ment, munitions and industries referred to in Article 
 VIII." If this power is not to be implied from the 
 provisions of Article VIII, the amendment ought to be 
 made, although it may be objected to because it would 
 imply that the member nations may not act in good 
 faith.
 
 134 PAPERS AND ADDRESSES 
 
 AKTICLE X 
 
 This article is as follows: 
 
 "The high contracting parties shall undertake to respect 
 and preserve as against external aggression the territorial in- 
 tegrity and existing political independence of all states mem- 
 bers of the League. In case of any such aggression or in 
 case of any threat or danger of such aggression the Executive 
 Council shall advise upon the means by which the obligation 
 shall be fulfilled." 
 
 Senator Knox says that this article contemplates the 
 sending of our troops to some distant part of the earth 
 to settle a controversy in which we might have a very 
 remote interest. It is also said that it destroys the 
 force of the Monroe Doctrine. But in reality the 
 article is no more nor less than a declaration of the 
 application of a kind of Monroe Doctrine to all of the 
 member nations ; and in seeking its effect it is useful to 
 observe how the Monroe Doctrine works out in practice. 
 
 THE MONROE DOCTRINE 
 
 This doctrine embodies what is essentially a de- 
 fensive principle; that is to say, it seeks to prevent 
 such interference with nations in this hemisphere as 
 would tend ultimately to result in the establishment of 
 governmental systems based on principles in conflict 
 with those upon which the American Commonwealth is 
 founded. It does not exclude offensive measures by 
 European or Asiatic nations to correct the interna- 
 tional manners or to enforce the substantial obligations 
 of nations in this hemisphere, provided such measures 
 do not extend or threaten to extend so far as to inter- 
 fere with established territorial boundaries or existing 
 political institutions.
 
 THE LEAGUE OF NATIONS 135 
 
 This aspect of the doctrine was shown when this 
 country refused to interfere to protect Chile from 
 Spain and announced that the United States would not 
 prevent a foreign nation from punishing an American 
 nation even to the extent of war, provided the aggres- 
 sion was not for the purpose of changing territorial 
 boundaries or overthrowing the sovereignty of the 
 American nation. President Roosevelt, in the Vene- 
 zuelan matter, also limited the doctrine so as to permit 
 foreign nations to collect by force debts owing by 
 American nations. The Monroe Doctrine seeks only to 
 prevent the nations of the world from increasing their 
 present possessions in the Western Hemisphere 
 "through war or purchase or intrigue" or from ac- 
 quiring additional "political power or strategical op- 
 portunity" at the expense of existing nations of the 
 Western Hemisphere. 
 
 Article X prescribes for all the nations of the world 
 a defensive policy similar to the Monroe Doctrine as 
 thus understood. It provides that the high contracting 
 parties shall undertake "to respect and preserve as 
 against external aggression the territorial integrity 
 and existing political independence" of member states. 
 Unless the "external aggression" shall have been pre- 
 ceded by submission to arbitration under Article XIII, 
 or by mediation under Article XV, it would amount to 
 a resort to war in violation of Article XII, and that 
 would immediately make applicable the penalty of boy- 
 cott under Article XVI. 
 
 But even if the guarantee does impose upon all the 
 members of the League the necessity of adopting at 
 once effective military measures to prevent "external 
 aggression," our experience with the Monroe Doctrine 
 shows that such measures would not necessarily be 
 taken until the aggression had gone far enough to
 
 136 PAPERS AND ADDRESSES 
 
 demonstrate that it was directed at ' ' the territorial in- 
 tegrity and existing political independence" of the 
 state affected. It will be remembered that in the case 
 of Mexico this country contented itself with diplomatic 
 protests until there had been a military invasion of 
 Mexico and Maximilian had been proclaimed emperor. 
 
 EXTENT OF THE OBLIGATION IMPOSED BY ARTICLE X 
 
 In case an obligation arose to aid a signatory nation 
 against " external aggression" the extent of such aid 
 would have to be advised upon, but not determined, by 
 the unanimous vote of the Executive Council. Any 
 recommendation imposing upon the United States an 
 unreasonable burden could be vetoed by its single vote ; 
 and as a practical matter the burden of military meas- 
 ures would undoubtedly fall upon the nations which, by 
 reason of geographical proximity and vital national in- 
 terests, were most directly affected by the threatened 
 aggression. 
 
 It is true that in the present form of Article X, and 
 if unanimity is not required in the Executive Council, 
 an "external aggression" upon one of the nations in 
 the Western Hemisphere might lead to the intervention 
 of some European or Asiatic nation. But that would 
 be highly improbable. Neither European nor Asiatic 
 nations would care to concern themselves with the af- 
 fairs of the Western Hemisphere, and would be only 
 too willing to permit the United States to continue to 
 carry out its traditional policy. 
 
 PROPOSED MODIFICATION OF ARTICLE X 
 
 To avoid possible controversy, and to make a reser- 
 vation which would probably be a sufficient protection 
 of the Monroe Doctrine, it would be wise to amend 
 Article X by making a provision similar to that con-
 
 THE LEAGUE OF NATIONS 137 
 
 tained in Article XIX with reference to the tutelage of 
 weak nations, to the effect that the primary responsi- 
 bility for measures to prevent "external aggression" 
 in violation of Article X should rest upon nations 
 which, on account of the ' ' geographical situation of the 
 territory, its economic conditions and other similar cir- 
 cumstances," as well as their own vital national inter- 
 ests, are most directly concerned. Such a provision 
 would leave no doubt that in the case of an "external 
 aggression" upon a country of the Western Hemi- 
 sphere the United States would be the nation which 
 would be first looked to to take suitable steps, military 
 or otherwise, to make the guarantee of Article X effect- 
 ive, and in so doing they would be acting in conformity 
 with the principle of the Monroe Doctrine. It would 
 also then be plain that, in accordance with the Lansing- 
 Ishii notes of November, 1917, in the event of an ex- 
 ternal aggression affecting China, Japan would be 
 first expected to adopt appropriate measures for main- 
 taining the "independence or territorial integrity of 
 China. " And likewise it would result that in the event 
 of an aggression upon an European nation defensive 
 measures would be committed primarily to the Euro- 
 pean nations directly affected. 
 
 It would, of course, be preferable, if the diplomatic 
 situation makes it possible, that there should be an ex- 
 press reservation inserted in the covenant that the 
 traditional American policy embodied in the Monroe 
 Doctrine was not intended to be affected. It may be 
 difficult, however, to obtain such a broad reservation, 
 since it would evoke from Japan, Great Britain, France 
 and Italy a demand for some specific reservation con- 
 cerning their relation to countries within the areas of 
 their influence, and that would lead to complications. 
 That the Peace Council does not intend to impair the
 
 138 PAPERS AND ADDRESSES 
 
 strength of the Monroe Doctrine is indicated in the 
 words of Lord Robert Cecil, who had more to do with 
 drawing the Constitution of the League than any other 
 member of the Peace Council. He says that "if the 
 Monroe Doctrine means, as I believe it does, that there 
 ought to be no interference with affairs on the Amer- 
 ican continent by European powers without the consent 
 of the United States, then I say that the doctrine is 
 strengthened by the League of Nations. ' ' 
 
 While Article X, modified in the manner suggested, 
 would still impose upon all of the high contracting pow- 
 ers an ultimate responsibility for the enforcement of 
 the guarantee against "external aggression," the pos- 
 sibility that the United States would be called upon to 
 furnish a military force in any part of the world except 
 the Western Hemisphere would be very remote, and 
 such contingency is not to be anticipated if the cove- 
 nants of the League are to be carried out in the spirit 
 indicated in the preamble. 
 
 OTHER OBJECTIONS TO ARTICLE X 
 
 It has been urged that Article X is too rigid be- 
 cause it preserves against external aggression the ter- 
 ritorial integrity and political independence of every 
 member state. But the guarantee is only against "ex- 
 ternal aggression," and that, of course, implies that it 
 is by hostile attack of the nation upon whom the ag- 
 gression is committed. It would not prevent any two 
 contiguous nations from changing their boundaries 
 through purchase or cession, nor does it prevent 
 a change in the political independence of a nation, 
 provided such change is made by the consent of its 
 people. 
 
 It is also objected that Article X applies to contin- 
 gencies that cannot be foreseen. But if such a test
 
 THE LEAGUE OF NATIONS 139 
 
 were applied it would exclude any provision similar to 
 Article X. The article is intended to apply to all 
 cases where one nation makes an attack upon the terri- 
 tory or the independence of another nation, and if the 
 purpose of the League is borne in mind it is difficult 
 to imagine a case where it would not be consonant with 
 that purpose to prevent external aggression. If the 
 article is amended by providing that any military force 
 which is needed in the first instance shall be furnished 
 by the nation whose territory is nearest to the point 
 of attack, or whose national interest is most directly 
 involved, thus saving any possible invasion of the 
 Monroe Doctrine, no reasonable objection can be made 
 to it. 
 
 Article X is one of the most beneficent provisions of 
 the covenants, and it is absolutely necessary if we are 
 to discharge the responsibility which has been cast 
 upon us as a nation and the new peace treaty is to be 
 anything more than a mere paper compact without sub- 
 stantial sanctions. 
 
 ARTICLE XII 
 
 This article is of the utmost importance because it 
 binds all the high contracting parties that "they will 
 in no case resort to war" until three months after an 
 award by arbitration under Article XIII, or a recom- 
 mendation upon a mediation under Article XV, and 
 that they will not even then resort to war as against 
 a member nation which complies with the award upon 
 arbitration under Article XIII, or with the recom- 
 mendation of the Executive Council upon a mediation 
 under Article XV. The penalty of a boycott for a 
 violation of this covenant, prescribed by Article XVI, 
 will probably result in strict observance of the cove- 
 nant itself. The effect of the delay will in most cases
 
 140 PAPERS AND ADDRESSES 
 
 be the abandonment of all idea of war. This has not 
 been sufficiently emphasized. 
 
 The time during which war could be suspended un- 
 der Article XII is, (1) a reasonable time during which 
 the arbitrators under Article XIII are deliberating and 
 three months thereafter, or (2) in the case of mediation 
 under Article XV, not exceeding nine months after 
 the submission of the dispute. 
 
 ARTICLE XIII 
 
 This article provides for the arbitration of a mat- 
 ter in dispute. The member nations, however, are only 
 bound to submit to arbitration such matters as "they 
 recognize to be suitable for submission to arbitration." 
 If in good faith they regard a matter as being of a 
 character not suitable for arbitration, as, for instance, 
 where vital national interests are involved, or the sub- 
 ject matter of the dispute is not intrinsically justici- 
 able, they are not bound to arbitrate. Practically Ar- 
 ticle XIII in many cases will give to the member nations 
 the option of submitting to arbitration or of accepting 
 mediation under Article XV. 
 
 ARTICLE xv 
 
 By this article the high contracting parties covenant 
 that a dispute not submitted to arbitration under Arti- 
 cle XIII shall be referred for mediation to the Execu- 
 tive Council (or, at the option of a party, to the Body of 
 Delegates), which (1) may settle the dispute, in which 
 case a statement of the terms of settlement shall be 
 published, or (2) shall, if a settlement is not made, 
 publish its recommendation as to what it thinks "just 
 and proper for the settlement of the dispute." If the 
 report containing the recommendation is "unanimously 
 agreed to by the members of the Council other than the
 
 THE LEAGUE OF NATIONS 141 
 
 parties to the dispute ' ' the parties to the dispute agree, 
 as pointed out above, "that they will not go to war 
 with any party which complies with the recommenda- 
 tions," whatever such recommendations may be. If 
 a unanimous report cannot be made, the majority of 
 the Council is required, and the minority is permitted, 
 to issue statements, indicating their findings of fact 
 and their reasons for their conclusions. 
 
 While under Article XIII there is an express cove- 
 nant that the high contracting parties "will carry out 
 in full good faith any award that may be rendered," 
 and under Article XV that "they will not go to war 
 with any party which complies" with the unanimous 
 recommendation of the Council, there is no definite 
 penalty prescribed for a failure to fulfill these obliga- 
 tions, since under Article XIII, for a failure to carry 
 out an award, the Executive Council is only to "propose 
 what steps can best be taken to give effect" to an 
 award, and under Article XV, for a violation of the 
 stipulation not to go to war, the Executive Council has 
 no duty except to "propose measures necessary to give 
 effect to the recommendations." 
 
 The duty conferred upon the Executive Council by 
 these provisions is clearly advisory, and final action 
 can only be taken upon the unanimous vote of the Body 
 of Delegates, and even that body has no authority to 
 compel the signatory powers to enforce obedience by 
 war. At most, the default of a high contracting party 
 would amount to a renunciation of the treaty, which 
 would make the recalcitrant an outcast nation, and, if 
 it did not voluntarily retire, would undoubtedly make 
 it subject to a decree of expulsion from the League. 
 But the Executive Council might recommend to the 
 Body of Delegates a modified form of punishment lead- 
 ing to some adjustment, and it is probable that under
 
 142 PAPERS AND ADDRESSES 
 
 the provisions referred to, it was contemplated that 
 the Executive Council would propose remedies for 
 recalcitrancy, varying according to the circumstances 
 of each case. While a compulsory remedy for a breach 
 of the covenant to carry out the award or the recom- 
 mendation is not provided in Articles XIII and XV, it 
 is quite clear that the moral effect of their provisions 
 will be such as to make them entirely effective in the 
 vast majority of cases. 
 
 Furthermore, it is to be remembered that the main 
 purpose of the Constitution of the League is not com- 
 pulsory arbitration, but the avoidance of war, and the 
 penal provisions, particularly those of Article XVI, are 
 directed to that end. If the Executive Council should 
 deem the boycott provided for in the first paragraph of 
 Article XVI as an appropriate remedy to enforce a 
 compliance with an award under Article XIII, or a 
 recommendation under Article XV, it could, of course, 
 recommend that that coercive measure be adopted, thus 
 assimilating the remedy to that specifically provided 
 for a violation of Article XII. 
 
 ARTICLE xvi 
 
 This article is of the utmost importance, because it 
 provides for affirmative and drastic measures to secure 
 compliance with the covenant to suspend war. As has 
 been seen, the member states agree by Article XII that 
 they will not resort to war until three months after 
 the disputes have been arbitrated under Article XIII 
 or until nine months after submission to mediation 
 under Article XV. It is declared by Article XVI that 
 a high contracting party committing a breach of this 
 covenant "shall thereby ipso facto be deemed to have 
 committed an act of war against all the other members 
 of the League." The immediate remedy, however, is
 
 THE LEAGUE OF NATIONS 143 
 
 a boycott against the outlaw nation, by which they will 
 immediately subject it "to the severance of all trade or 
 financial relations, the prohibition of all intercourse 
 between their nationals and the nationals of the cove- 
 nant-breaking state, and the prevention of all financial, 
 commercial or personal intercourse between the na- 
 tionals of the covenant-breaking state and the nationals 
 of any other state, whether a member of the League 
 or not. ' ' This boycott is to go into effect immediately 
 and it will no doubt produce such an isolation of the 
 offending nation, and such damage to its material in- 
 terests, that a resort to war for a more complete pun- 
 ishment will be a very remote possibility. 
 
 Whether war shall be resorted to is entirely optional 
 with the nation members of the League. Upon this 
 point there has been much misunderstanding through 
 inattention to the express provisions of Article XVI. 
 The second sentence of that article provides as follows : 
 
 "It shall be the duty of the Executive Council in such 
 case to recommend what effective military or naval force 
 the members of the League shall severally contribute to 
 the armed forces to be used to protect the covenants of the 
 League. ' ' 
 
 The use of the word "recommend" in this provision 
 is significant. It clearly does not import compulsion, 
 and certainly not in the absence of unanimous action 
 on the part of the Executive Council and of the Body 
 of Delegates. If such unanimity is not to be implied 
 from the present provisions of the Constitution, prob- 
 ably the Peace Conference will adopt an amendment 
 to that effect, which I have reason to believe is being 
 urged upon them. Military or naval measures should 
 in the first instance, as in the case of an aggression pro- 
 vided for in Article X, be undertaken by the member
 
 144 PAPERS AND ADDRESSES 
 
 nation best fitted therefor through territorial prox- 
 imity or national interest, and a provision to that ef- 
 fect should also, and probably will, be added to the 
 second sentence of Article XVI. 
 
 While it seems quite clear that in its present form 
 Article XVI will not impose upon a member nation 
 the obligation, in the words of Senator Knox, "to go 
 to war when and in the manner the Executive Council 
 determines" or to "fly to arms to protect the cove- 
 nants, ' ' it would probably be wise by the changes sug- 
 gested to allay the fears which have been aroused by 
 statements made by opponents of the League. 
 
 Article XVI also provides that mutual financial and 
 economic support shall be furnished by nation mem- 
 bers in making the penalty of the first paragraph of the 
 article effective, and that in case of military measures 
 nation members will permit the forces of any of the 
 high contracting parties to pass through their territory. 
 
 ARTICLE XVII 
 
 This article is designed to bring to bear upon the 
 states which do not become members of the League the 
 coercive effect of the covenants so as to prevent dis- 
 putes among them from leading to war. It provides 
 for cases of dispute between a member and a non- 
 member and between states which are non-members. 
 For the sole purpose of the settlement of the dispute, 
 non-members are invited to become members of the 
 League, and upon the acceptance of such invitation an 
 investigation and a recommendation are made by the 
 Executive Council. In case a non-member state re- 
 fuses to accept the invitation and thus to subject itself 
 to the provisions of Article XII postponing the com- 
 mencement of war, the member nations agree to apply 
 to the refusing state the boycott provided for in the
 
 THE LEAGUE OF NATIONS 145 
 
 first paragraph of Article XVI. Thus the drastic 
 measures of that article will be resorted to for the pur- 
 pose of preventing war, not alone among members of 
 the League, but also among all the nations of the earth. 
 Article XVII also provides that where two non-mem- 
 bers refuse to accept the invitation to assume the 
 obligations of membership for the purposes of the 
 dispute, the Executive Council may take such action 
 and. make such recommendations as will prevent hostil- 
 ities and result in the settlement of the dispute. 
 
 PROPOSED CHANGES OF THE CONSTITUTION 
 
 The adoption of the changes in the Constitution pro- 
 posed above would not imply a disapproval of the 
 fundamental principles of the League. The changes 
 will only tend to remove possible misunderstandings 
 and to allay fears. They may be summed up as 
 follows : 
 
 (1) An express provision requiring unanimity on 
 the part of the Executive Council, except where other- 
 wise expressly provided. Since the Constitution is 
 nothing but a treaty (this fact does not seem to be 
 generally understood), unanimity to authorize any 
 kind of action would probably be presumed, but there 
 can be no objection to removing all doubt ; 
 
 (2) Article X should be amended so as to safeguard 
 the Monroe Doctrine by providing that where military 
 force is necessary it should be furnished by the nation 
 best fitted for the purpose through geographical prox- 
 imity or national interest. From the standpoint of 
 this country's interest it would also be desirable to 
 have the Monroe Doctrine expressly recognized, and 
 there is good reason to believe that it will be ; 
 
 (3) Provision (probably unnecessary) should be 
 made for the withdrawal of any member of the League
 
 146 PAPERS AND ADDRESSES 
 
 after some fixed period and upon some reasonable 
 notice ; 
 
 (4) The limits of armament adopted by the nations 
 should be reexamined after some period, say five years ; 
 
 (5) Perhaps there should be a reassuring expression 
 of opinion that matters of domestic jurisdiction and 
 polity according to international law are not intended 
 to be affected by the covenants. 
 
 * 
 
 It would not be objectionable, and from the stand- 
 point of this country would be desirable, if Senator 
 Lodge 's suggestions concerning the tariff and immigra- 
 tion could be adopted in some form, although in my 
 view of the character of the treaty-making power the 
 reservation is not necessary. It would serve the pur- 
 pose, however, of allaying apprehensions on the part 
 of patriotic Americans who have " reverence for the 
 laws ourselves have made," and I cannot see how it 
 would be objectionable to the other nations. Some 
 general phrase could be inserted substantially to the 
 effect that it was not the intention to vest in the Execu- 
 tive Council, or the Body of Delegates, power to deal 
 with any question which, under rules of international 
 law, is within the domestic jurisdiction and polity of 
 the member states. 
 
 STYLE OF THE CONSTITUTION 
 
 Except for actual omissions, the chief defects of the 
 Constitution are prolixity and involved style. But 
 treaties are not statutes, and they have always con- 
 tained expressions of intention, good will and senti- 
 ment, and have adopted a phraseology quite different 
 from that deemed necessary in statutes. As there is 
 no Supreme Court for their enforcement, they are 
 based on good faith, and this has led to some laxity
 
 THE LEAGUE OF NATIONS 147 
 
 in forms of expression. The statements concerning 
 the ambiguities of the Constitution of the League are 
 somewhat exaggerated, however, and I do not believe 
 that a Secretary of State would have difficulty in in- 
 terpreting it in a manner which would avoid serious 
 prejudice to this country. But we are assured that 
 the Constitution is to be thoroughly revised, and all 
 ambiguities eliminated. 
 
 POWEES OF THE EXECUTIVE COUNCIL 
 
 The basis for most of the attacks upon the Constitu- 
 tion of the League has been found in statements made 
 by Senator Knox in his speech in the Senate on March 
 1. He concludes that "war is mandatory" under Ar- 
 ticle X, Article XII and Article XVII. As to all these 
 cases he says : 
 
 "And in all these three cases, whether or not we partici- 
 pate, the amount of our participation in the belligerent opera- 
 tions is determined not by ourselves but the Executive Coun- 
 cil, in which we have seemingly at most but one voice out of 
 nine. No matter what we think of the merits of the contro- 
 versy, no matter how we view the wisdom of a war over 
 the cause, we are bound by this covenant to go to war when 
 and in the manner the Executive Council determines." 
 
 It sufficiently appears from what has been said above 
 that there is no reasonable ground for these statements. 
 While the Executive Council has a variety of duties, 
 in the main they are advisory, and its decisions are 
 obviously provided for on account of their expected 
 moral effect. Its powers and duties may be summed up 
 as follows : 
 
 (1) It determines upon the program of disarma- 
 ment, but only "for the consideration and action of
 
 148 PAPERS AND ADDRESSES 
 
 the several governments, ' ' and the limitations become 
 effective only when adopted by the nations, though they 
 are not to be removed without the consent of the Execu- 
 tive Council; 
 
 (2) It advises upon the means by which its obliga- 
 tion under Article X shall be fulfilled ; 
 
 (3) It formulates plans for the establishment of a 
 Permanent Court of International Justice; 
 
 (4) It acts as a mediator under Article XV; and 
 also proposes measures to give effect to its recom- 
 mendations ; 
 
 (5) It recommends the military forces that members 
 of the League shall contribute under Article XVI ; 
 
 (6) It acts as a mediator in disputes between non- 
 members of the League, and is authorized to take ac- 
 tion and make recommendations for the prevention of 
 hostilities ; 
 
 (7) If the high contracting parties shall fail to act, 
 it is to define explicitly the degree of authority, control 
 or administration to be exercised by a mandatory 
 state. 
 
 These are the principal functions vested in the 
 Executive Council, and unless we give to the words 
 "recommend," "advise" and "propose" a meaning 
 equivalent to "order" and "direct," there is no found- 
 ation for Senator Knox 's statement that the Constitu- 
 tion creates a "supercovenant," or that the Executive 
 Council is, in his words, "legislature, court and, in 
 large part, executive all in one. ' ' The only real power 
 conferred upon the council is that of a veto upon an 
 increase of armament, and the provision dealing with
 
 THE LEAGUE OF NATIONS 149 
 
 that subject will probably be amended so as to provide 
 that after some fixed period a nation may apply to 
 the Body of Delegates from time to time to modify the 
 limitation. 
 
 CONSTITUTIONALITY 
 
 Mr. Knox contends that the covenants of the 
 League are in violation of the Federal Constitution (1) 
 in that they place the power of declaring war in the 
 hands of the Executive Council; (2) because the limit of 
 armament, when adopted by the several governments, 
 cannot be exceeded without the permission of the Ex- 
 ecutive Council; (3) because no treaty made by this 
 country will become binding until it has become regis- 
 tered with the Secretary General of the League; (4) in 
 that situations might arise under Article XVI relating 
 to financial and economic measures for the support of 
 other members of the League calling for unconstitu- 
 tional action by this government; and (5) in that under 
 Article XX freedom of transit and equitable treatment 
 of commerce stipulated for, might require the making 
 of laws which Congress ought not to make, and yet 
 if it did not make them it might find itself in a position 
 where the omission to make them would bring on war. 
 
 If there is anything in Mr. Knox's constitutional ob- 
 jections, similar objections may be made to most of the 
 treaties to which this country has been a party since 
 the foundation of the government. He fails to give 
 due consideration to the peculiar character under our 
 Constitution of the treaty-making power. 
 
 The provisions of the Federal Constitution relating 
 to treaties were the subject of fervid controversy in the 
 discussions in the Constitutional Convention of 1787; 
 and since that time the attempt to make the House of 
 Representatives a potential agency in the negotiation
 
 150 PAPERS AND ADDRESSES 
 
 of treaties with foreign countries has been repeated 
 many times, but without success. Few treaties have 
 been made which have been self-executing, that is, en- 
 forcible without supplementary action by the House of 
 Representatives in the appropriation of money or in 
 some other strictly legislative act. The fact that such 
 legislation is necessary, however, does not render a 
 treaty unconstitutional. 
 
 George Mason and Grouverneur Morris vigorously 
 objected in the Constitutional Convention of 1787 to 
 making the treaty power independent of the legislative 
 power, urging that no treaty should be "binding on the 
 United States which is not ratified by law" ; and James 
 Wilson urged that "as treaties are to have the opera- 
 tion of laws, they ought to have the sanction of laws 
 also." But all such objections were overruled, and 
 Article VI of the Constitution was made to provide 
 that treaties made by the President by and with the 
 advice and consent of the Senate should be "the 
 supreme law of the land." 
 
 Hamilton argued that the making of treaties was 
 neither an executive nor a legislative function, adding, 
 "It relates neither to the execution of the subsisting 
 laws nor to the enaction of new ones, but still less to 
 an exercise of the common strength. Its objects are 
 contracts with foreign nations which have the force of 
 law but derive it from the obligations of good faith." 
 (Federalist No. 75 [74].) In his letters to Washington 
 (CrandalVs Treaties, p. 170) Hamilton also said that 
 it was "one thing that a treaty pledging the faith of 
 the nation should by force of moral duty oblige the 
 legislative will to carry it into effect" and "quite an- 
 other that it should be itself a law." He called at- 
 tention to the fact that treaties common among na-
 
 THE LEAGUE OF NATIONS 151 
 
 tions included indemnification, pecuniary or otherwise, 
 stipulations for the union of military forces, and the 
 furnishing of pecuniary or other aid, and the regula- 
 tion of external commerce, and unless the treaty power 
 could embrace such objects, "it would even be inade- 
 quate for mere treaties of peace, and always so for 
 treaties of alliance and of commerce. ' ' The Constitu- 
 tion provides no method of compelling the House of 
 Representatives to act, but a legal discretion to refuse 
 the execution of a treaty is virtually a power to repeal 
 it. Hence Hamilton concludes "that the House of 
 Representatives have no moral power to refuse the ex- 
 ecution of a treaty which is not contrary to the Con- 
 stitution, because it pledges the public faith ; and have 
 no legal power to refuse its execution because it is a 
 law — unless at least it ceases to be a law by regular 
 act of revocation of the competent authority/' 
 
 In 1792 Mr. Jefferson negotiated a treaty with Al- 
 giers which required the payment of money and was 
 asked by President Washington whether he should not 
 wait until the treaty had been ratified by both houses 
 of Congress. Jefferson expressed the opinion that the 
 ratification by the House of Representatives was not 
 necessary, but said that it "might be incautious to com- 
 mit himself by a ratification with a foreign nation 
 where he might be left in the lurch in the execution." 
 (Vol. I, Writings of Thomas Jefferson, p. 216.) Wash- 
 ington declined to wait, saying that if Congress 
 would not do "what the Constitution called on them 
 to do, the government would be at an end, and must 
 then assume another form." Subsequently, in 1796, 
 the House of Representatives requested President 
 Washington to lay before it a copy of the instructions 
 to the Minister of the United States who negotiated
 
 152 PAPERS AND ADDRESSES 
 
 the Jay treaty with Great Britain, together with the 
 correspondence and other documents relative thereto. 
 He declined to comply with the request, saying: 
 
 "It is thus that the treaty-making power has been under- 
 stood by foreign nations, and in all the treaties made with 
 them ive have declared and they have believed that when 
 ratified by the President, with the advice and consent of the 
 Senate, they became obligatory. In this construction of the 
 Constitution, every House of Representatives has heretofore 
 acquiesced and until the present time not a doubt or sus- 
 picion has appeared to my knowledge that this construction 
 was not the true one; nay, they have more than acquiesced, 
 for till now, without controverting the obligation of such 
 treaties, they have made all the requisite provisions for carry- 
 ing them into effect." 
 
 He added that "it is essential to the due administra- 
 tion of the government that the boundaries fixed by the 
 Constitution between the different departments should 
 be preserved." 
 
 Chief Justice Ellsworth, who had been a member of 
 the Constitutional Convention, expressed a similar 
 view, after his appointment as Chief Justice of the 
 United States, saying that the obligation to carry out 
 the provisions of a treaty "is as indispensable as it is to 
 appropriate for the President's salary or that of the 
 Judges, or in any other cases where fidelity to the 
 Constitution does not leave an option to refuse." 
 
 This view of the treaty -making power under the Con- 
 stitution has always been adhered to and has received 
 the sanction of the Supreme Court. In Foster v. Neil- 
 son, Chief Justice Marshall said: "Our Constitution 
 declares a treaty to be the law of the land. It is 
 consequently to be regarded in courts of justice as 
 equivalent to an act of the Legislature whenever it 
 operates of itself without the aid of any legislative
 
 THE LEAGUE OF NATIONS 153 
 
 provision." In Geofroy v. Riggs, Mr. Justice Field 
 said: ''The treaty power as expressed in the Constitu- 
 tion is in terms unlimited except by those restraints 
 which are found in that instrument against the action 
 of the government or of its departments, and those 
 arising from the nature of the government itself and 
 that of the states. It would not be contended that it 
 extends so far as to authorize what the Constitution 
 forbids or a change in the character of the government 
 or in that of one of the states or a cession of any 
 portion of the territory of the latter, without its con- 
 sent. . . . But with these exceptions it is not per- 
 ceived that there is any limit to the questions which 
 can be adjusted touching any matter which is properly 
 the subject of negotiation with a foreign country." 
 
 It is true that if a treaty and an act of Congress are 
 "inconsistent the one last in date will control the other, 
 provided always the stipulation of the treaty on the 
 subject is self -executing. " Field, J., in Whitney v. 
 Robertson, 124 U. S., 190, 194; United States v. Lee 
 Yen Tai, 185 U. S., 213, 220. But any question as to 
 carrying treaties into effect has rarely arisen, since the 
 House of Representatives has almost uniformly recog- 
 nized the broad sweep of the treaty-making power and 
 has promptly acted to enable the nation honorably to 
 perform its treaty obligations. The matter has never 
 been presented with reference to an obligation assumed 
 in a treaty to levy war, but it may be safely asserted 
 that the principle applicable to that situation w r ould 
 not be different from that applying to any other legis- 
 lative power requiring for its exercise the action of 
 the House of Representatives. 
 
 It would be impossible in most cases to ascertain, 
 before making a treaty, whether Congress would do 
 what might be necessary to make it effective, as, for
 
 154 PAPERS AND ADDRESSES 
 
 instance, would make good a guarantee such as that 
 given in the case of the Nicaragua Canal, or would re- 
 duce the naval forces on the Great Lakes, as required 
 by our treaty with Great Britain. In a multitude of 
 treaties the United States has made covenants contem- 
 plating performance during a long period of time. In 
 such cases it would be impossible to tell how some fu- 
 ture Congress might act ; indeed, one Congress might be 
 willing to do what a succeeding Congress would refuse 
 to do. Whether the matter relates to the appropria- 
 tion of money or to the declaration of war, the question 
 must be decided by the Congress in office at the time 
 when a situation arises requiring action. Under our 
 Constitution that is inevitable, and practically amounts 
 to this, that when the President and the Senate agree 
 upon a treaty it is impossible that they shall have the 
 assurance in advance that a House of Representa- 
 tives in office will do what is necessary to carry the 
 treaty into effect in accordance with its terms; and it 
 has never been the custom to consult the House. 
 
 NATIONAL SOVEREIGNTY 
 
 Precisely what is meant by the assertion that the 
 League involves an impairment of national sovereignty 
 it is difficult to understand. It has no possible foun- 
 dation, except in the mistaken assumption that the 
 Executive Council practically is given the power to 
 make war and to enforce a boycott under Article XVT, 
 and that the United States is in such minority in the 
 Council that the delegation of power amounts to an ab- 
 dication of sovereignty in what may prove to be vital 
 national matters. But it is to be borne in mind that 
 a treaty is a bargain with another country, in which the 
 idea of sovereignty becomes more theoretical than real, 
 since the interest of the people of a nation requires
 
 THE LEAGUE OF NATIONS 155 
 
 their government in every treaty to limit their freedom 
 of action. In consideration of benefits obtained by 
 each nation, it makes concessions which are a restric- 
 tion upon its sovereign rights. 
 
 Sir Frederick Pollock, a very high authority, holds 
 that there can be no undue encroachment upon sover- 
 eignty by a treaty unless its restraints are "unreason- 
 able or excessive, having regard to the importance of 
 the end to be attained." He points out that the later 
 arbitration treaties (such as the Bryan treaties for the 
 promotion of peace) do not exclude even questions of 
 "honor, independence or vital interests"; and he adds 
 that if the nations making such treaties "have thereby 
 ceased to be independent it would seem that independ- 
 ence is a kind of legal fiction hardly worth preserving, 
 like the absolute and indivisible sovereignty of certain 
 publicists, which unfortunately for their doctrine, it 
 is impossible to find in the government of the United 
 States, or in any Federal Constitution. If great pow- 
 ers may without undue derogation enter into covenants 
 one with another to refer their disputes to arbitra- 
 tion or the award of a court, why is it a derogation 
 to enter into one comprehensive agreement to the same 
 effect, guaranteed by the joint strength of them all! 
 . . . There is ample precedent for such undertakings 
 in defined spheres of international affairs and traffic, 
 the Postal Union, for example. Every member of that 
 union has renounced its power, as regards all other 
 members, of fixing rates of foreign postage at its own 
 will and pleasure." 
 
 And as to the delegation of power to declare war 
 the distinguished author adds that "the real question 
 is whether the security for the common peace to be 
 gained by the establishment of a common power is 
 worth its price."
 
 156 PAPERS AND ADDRESSES 
 
 There is no limit in the Constitution of the United 
 States upon the extent to which this country can by 
 treaty limit its sovereignty, except that it may not 
 change the form of government of the United States 
 or part with territory belonging to one of the states 
 without the consent of that state. 
 
 It is clear that the treaty-making power extends to 
 agreements to make or refrain from making war, to 
 levy a commercial boycott, to submit disputes to com- 
 pulsory arbitration, to guarantee protection to the ter- 
 ritory of another nation, and to adopt offensive or 
 defensive measures looking to a state of war. All 
 such agreements, of course, materially detract from 
 the theoretical sovereignty of a nation, but they are, 
 nevertheless, clearly within the treaty-making power. 
 
 As early as 1817, by the Rush-Bagot treaty, this 
 country and Great Britain agreed to limit their naval 
 armament upon the lakes forming the boundary be- 
 tween this country and Canada, and that agreement 
 has been continued and respected ever since. 
 
 In 1842, by the Webster-Ashburton treaty, Great 
 Britain and this country agreed that they would 
 maintain a naval force on the coast of Africa for the 
 suppression of the slave trade, the forces of the two 
 nations to act in concert and cooperation. 
 
 By the Clayton-Bulwer treaty of 1850, between Great 
 Britain and the United States, which related to the 
 subject of a ship canal between the Atlantic and the 
 Pacific oceans, the two countries guaranteed the neu- 
 trality of the canal and agreed that if the canal should 
 be undertaken by certain persons, their property 
 should be protected from unjust confiscation, seizure 
 or violence. Every other friendly nation was invited 
 to join in the stipulations. The treaty also declared 
 that neither of the two high contracting parties would
 
 THE LEAGUE OF NATIONS 157 
 
 ever "obtain or maintain for itself any exclusive con- 
 trol over the said ship canal; agreeing that neither 
 will ever erect or maintain any fortifications command- 
 ing the same or in the vicinity thereof, or occupy, or 
 fortify, or colonize, or assume, or exercise any 
 dominion over Nicaragua, Costa Rica, the Mosquito 
 Coast or any part of Central America ; nor will either 
 make use of any protection which either affords or may 
 afford, or any alliance which either has or may have to 
 or with any state or people, for the purpose of erecting 
 or maintaining any such fortifications ; or of occupying, 
 fortifying or colonizing Nicaragua, Costa Rica, the 
 Mosquito Coast or any part of Central America, or 
 assuming or exercising dominion over the same; nor 
 will the United States or Great Britain take advantage 
 of any intimacy or use any alliance, connection or in- 
 fluence that either may possess with any state or gov- 
 ernment through whose territory the said canal may 
 pass, for the purpose of acquiring or holding, directly 
 or indirectly, for the citizens or subjects of the one any 
 rights or advantages in regard to commerce or navi- 
 gation through the said canal which shall not be offered 
 on the same terms to the citizens or subjects of the 
 other." 
 
 The Clayton-Bulwer treaty also provided that ves- 
 sels of the two high contracting parties should be 
 exempt, in case of war between them, from blockade, 
 detention or capture. The restrictions upon the sov- 
 ereignty of the United States by this treaty are so 
 obvious that they need no comment except to say that 
 they have a peculiar significance, in view of the pres- 
 ent discussion, because the restrictions relate to a 
 country in the Western Hemisphere, and may be fairly 
 construed as tending to impair the full application of 
 the Monroe Doctrine.
 
 158 PAPERS AND ADDRESSES 
 
 In 1846, by Article 35 of a treaty with Colombia, the 
 United States guaranteed " positively and efficaciously 
 . . . the perfect neutrality" of the Isthmus of Panama. 
 The significance of this provision is that it necessarily 
 involved, in case of a violation of neutrality, the use 
 of armed forces of this country for the performance 
 of its obligations. 
 
 By a treaty with Honduras in 1864, the United 
 States guaranteed the neutrality of the Honduras 
 Railroad, and engaged with that country that it should 
 not be seized or confiscated. 
 
 By the treaty with Nicaragua, made in 1867, the 
 United States extended its protection to all routes of 
 communication between the Atlantic and Pacific, and 
 guaranteed the " neutrality and innocent use thereof.' * 
 It was stipulated that military force might be em- 
 ployed, but on the condition only that it should be 
 authorized by Congress. 
 
 In 1901, the Panama Canal treaty was made with 
 Great Britain, by which it was provided that the canal 
 could never be blockaded, and that no act of hostility 
 could be committed within it. The principle of neu- 
 tralization of the canal was recognized. 
 
 In 1903, by treaty with Panama, this country guar- 
 anteed and agreed to maintain the independence of 
 the republic of Panama. 
 
 In 1889, by the treaty with Germany and Great 
 Britain, the signatory powers recognized the neutrality 
 of the Samoan Islands and provided that the three 
 powers should have equal rights within the islands. 
 The three signatory nations undertook a guardianship 
 of the islands similar to that which is contemplated in 
 the proposed Constitution of the League with refer- 
 ence to backward countries. 
 
 Within the last half dozen years, the President has
 
 THE LEAGUE OF NATIONS 159 
 
 negotiated treaties which were ratified by the Senate, 
 (i.e. the Bryan treaties "For the Advancement of 
 Peace") with Guatemala, Norway, Portugal, Great 
 Britain, Costa Rica, Spain, Sweden, Denmark, France, 
 Uruguay, Peru, Paraguay, Italy, Russia, China, Chile, 
 Ecuador, Honduras, Brazil and Bolivia, in each of 
 which, in practically identical language, we have 
 agreed that disputes arising between this country and 
 the other countries named should be submitted for in- 
 vestigation and report to an International Commission, 
 and that during the progress of such investigation we 
 would not resort to war for the satisfaction of our 
 rights. 
 
 The objection of the opponents of the League based 
 on the fact that the power to declare war is vested by 
 the Constitution in Congress would apply to all of 
 these treaties ; and, furthermore, the suspension of the 
 exercise of that power is to continue during the period 
 when the dispute is being considered by an interna- 
 tional commission, to be selected in such manner that 
 in most cases a majority of the commission will come 
 from nations other than those who are parties to the 
 dispute. In other words, the power of Congress to de- 
 clare war is suspended, while a commission, composed 
 of members, a majority of whom are not American citi- 
 zens, is proceeding to determine whether we are right 
 in the dispute. And yet I do not think it has been 
 seriouslv contended that the Bryan treaties are un- 
 constitutional or unduly detract from the sovereignty 
 of the nation. 
 
 Thus it appears that under the treaty-making power, 
 and without the concurrence of Congress, we have 
 made treaties for the reduction of armament, the 
 maintenance of armed forces in foreign territory, the 
 fixing of boundaries, the maintenance of neutrality
 
 160 PAPERS AND ADDRESSES 
 
 of territory belonging to other nations, the guarantee 
 of the independence of other nations, the compulsory 
 arbitration of disputed matters, and the postponement 
 of war during that process, the participation by this 
 country with other countries in the affairs and govern- 
 ment of backward nations, a restriction upon the right 
 to erect fortifications for the protection of property in 
 which this country is interested and with reference to 
 which it assumes a responsibility, and an appropria- 
 tion of money in order to make all such treaties effec- 
 tive. The Constitution of the League of Nations, ex- 
 cepting that it deals in a single treaty with a greater 
 number of nations and a greater variety of subjects, 
 does not require an invasion of the sovereignty of the 
 United States to a greater extent than that involved 
 in the treaties above enumerated; or, if it does, the 
 greater concessions are justified by the lofty and 
 beneficent purpose to insure a lasting and universal 
 peace. 
 
 THE NEGOTIATION OF THE TREATY 
 
 I agree with Senator Lodge that the President ought 
 to have discussed with the Senate such an important 
 matter as the League of Nations. Although it is in 
 accordance with historical precedent that negotiations 
 with foreign nations should originate through our State 
 Department, and, of course, ultimately be approved by 
 the President, the working arrangement has usually 
 been that the Foreign Affairs Committee of the Senate 
 has been taken into formal or informal conference at 
 an early stage of the proceedings, and, practically 
 speaking, in that way the "advice" of the Senate has 
 been obtained. That ought to have been done in the 
 case of the League of Nations before the President 
 went to Europe the first time. He ought also to have
 
 THE LEAGUE OF NATIONS 161 
 
 discussed with the Foreign Affairs Committee of the 
 Senate the League of Nations upon his recent return to 
 this country, and to have invited from them sugges- 
 tions of changes in the form of the Constitution. 
 
 His failure to do any of these things has excited 
 antagonism and has made the controversy now raging 
 much more bitter than it ought to be. 
 
 But, however just the criticisms of the President 
 may be in this respect, the situation must be dealt with 
 in a practical way. Senator Lodge suggests that a 
 special session of the Senate be called, and that then 
 the Senate will suggest amendments and send them to 
 Paris. Such course is utterly impracticable now. It 
 is too late. Individual senators should make their 
 specific suggestions as Senator Lodge has now done. 
 The Senate cannot avoid the ultimate responsibility 
 for rejecting the treaty by urging that it should have 
 been permitted as a body to submit amendments at 
 some earlier time.
 
 SOVEREIGNTY, CONSTITUTIONALITY AND 
 THE MONROE DOCTRINE
 
 VII 
 
 SOVEREIGNTY, CONSTITUTIONALITY AND 
 THE MONROE DOCTRINE 1 
 
 SOVEREIGNTY 
 
 Hvery civilized nation must, in the interests of its 
 citizens, make treaties, and, like ordinary trades be- 
 tween individuals, these must be negotiated on the 
 principle of "give and take." Whatever it agrees to 
 do or to refrain from doing imposes a restriction which 
 detracts from its complete sovereignty. But it does 
 not thereby unduly surrender its independence, unless 
 the restriction makes its ordinary governmental func- 
 tions subject to control by another country, as was the 
 case, for instance, with Cuba, when she accepted the 
 terms of the Piatt Amendment, and thereby subjected 
 her national financial policy and her foreign relations 
 to the supervisory control of the United States. A 
 nation's independence is not unduly impaired by a 
 treaty by which it receives advantages which compen- 
 sate it for what it concedes. 
 
 It is too late to argue in this country that interna- 
 tional agreements to make or to refrain from making 
 war, to guarantee protection to the territory of other 
 nations and to limit armament, unduly impair a 
 nation's sovereignty; for numerous instances of such 
 agreements in existing treaties will be found in our dip- 
 lomatic history. Nor can it be said that such agree- 
 ments were not contemplated when our Constitution 
 
 i Letters of Mr. Henry W. Taft, reprinted from "The Covenanter, 
 An American Exposition of the Covenant of the League of Nations," 
 being a series of letters written by William H. Taft, George W. Wicker- 
 sham, A. Lawrence Lowell and Henry W. Taft, after the Covenant had 
 been revised. (Doubleday, Page & Co., 1919.) 
 
 165
 
 166 PAPERS AND ADDRESSES 
 
 was adopted, for the Supreme Court has held that 
 under the treaty-making power, the President and the 
 Senate may make any agreement they regard as appro- 
 priate, provided it does not result in "a change in the 
 character of the government or in that of any of the 
 states or a cession of any portion of the territory of 
 the latter, without its consent." 
 
 Article X of the covenant is criticized as involving 
 an impairment of sovereignty. By that article there 
 is created a defensive alliance of the nations of the 
 League to prevent external aggression threatening the 
 territorial integrity or the political independence of 
 any member nation. The alliance is designed prima- 
 rily to give protection to the seven new republics in 
 Europe and the four autonomous nations in the Near 
 East, created as a result of the war ; and the obligation 
 to join in such an alliance was thrown upon us because, 
 by the Fourteen Points on which the armistice was 
 expressly based, we made ourselves responsible not 
 only for the erection of the new states but also for their 
 protection against attacks from without, threatening 
 their status as it was to be established by the treaty of 
 peace. For this we are to receive the further advan- 
 tage of the continuous cooperation of the League in 
 preserving the peace of the world. 
 
 Furthermore, the obligation imposed by Article X 
 will probably be less burdensome than opponents of 
 the League have assumed, for if it were sought to have 
 the Council advise that the United States should inter- 
 vene in what we regarded as an unsuitable case, we 
 could veto the suggestion by our single vote. But it 
 is altogether improbable that that would be necessary ; 
 for in any concrete case it would naturally happen that 
 the burden of performing the guarantee would, in the 
 first instance, fall on the nation nearest at hand or
 
 SOVEREIGNTY 167 
 
 politically most concerned. The chance that we should 
 often, if ever, be called upon to send troops or warships 
 to Europe or Asia to repel local aggressions would be 
 remote, since in practice they would have to be dealt 
 with summarily by the nations more directly affected, 
 precisely as, under the reservation of the Monroe Doc- 
 trine in Article XXI, we would be expected to deal with 
 aggressions upon comitries of the Western Hemis- 
 phere. 
 
 In considering whether we are unduly hampered by 
 Article X "the real question/' in the words of Sir 
 Frederick Pollock, an eminent authority on the subject, 
 "is whether the security for the common peace to be 
 gained by the establishment of a common power is 
 worth its price." When we became implicated in the 
 European situation, we committed ourselves to the 
 proposition that the price paid by our becoming a 
 party to the guarantee of Article X was not out of 
 proportion to the security we expected to enjoy in the 
 future. It was in the interest of the people of this 
 country that the United States should become a de- 
 cisive factor in the world's affairs. We cannot, with 
 national honor, now escape a responsibility corre- 
 sponding to our contribution to the winning of the war. 
 That is imposed upon us by the dictates of interna- 
 tional morality, and no nation can be said unduly to 
 surrender its sovereignty by discharging such an ob- 
 ligation. 
 
 The chief purpose of the League is to preserve inter- 
 national peace. It is sought to accomplish this through 
 the reduction of armament (Article VIII), the suspen- 
 sion of war during the process of the settlement of 
 disputes by arbitration or through mediation (Articles 
 XII, XIII and XV), and an economic boycott for a vio- 
 lation of the covenant (Article XVI). In view of
 
 168 PAPERS AND ADDRESSES 
 
 America's past efforts to avoid war by procuring the 
 settlement of disputes by arbitration, even though 
 they involve vital interests or national honor, it seems 
 unnecessary to argue that such a comprehensive 
 scheme for preserving the peace of the world as that 
 worked out in the covenant does not involve an undue 
 surrender of sovereignty. Furthermore, all of the 
 obligations assumed for the beneficent purpose of the 
 League have their counterpart in covenants contained 
 in earlier treaties: 
 
 In 1817, by the Rush-Bagot treaty, this country and 
 Great Britain agreed to limit their naval armament 
 upon the lakes forming the boundary between this 
 country and Canada. 
 
 By the Webster-Ashburton treaty, Great Britain and 
 this country agreed in 1842 that they would maintain 
 a naval force on the coast of Africa for the suppres- 
 sion of the slave trade. 
 
 By the Clayton-Bulwer treaty of 1850, between Great 
 Britain and the United States, the two countries guar- 
 anteed the neutrality of any ship canal that might be 
 built between the Atlantic and Pacific, and agreed, 
 among other things, that neither nation would ever 
 "obtain or maintain for itself any exclusive control 
 over the said ship canal," or " erect or maintain any 
 fortifications commanding the same or in the vicinity 
 thereof, or occupy, or fortify, or colonize, or assume, 
 or exercise, any dominion over Nicaragua, Costa Rica, 
 the Mosquito Coast or any part of Central America," 
 or ' ' take advantage of any intimacy or use any alliance, 
 connection or influence that either may possess with 
 any state or government through whose territory the 
 said canal may pass, for the purpose of acquiring or 
 holding, directly or indirectly, for the citizens or sub- 
 jects of the one any rights or advantages in regard
 
 SOVEREIGNTY 169 
 
 to commerce or navigation through the said canal 
 which shall not be offered on the same terms to the 
 citizens or subjects of the other." The treaty also 
 provided that vessels of the two high contracting 
 parties should be exempt in case of war between them, 
 from blockade, detention or capture. 
 
 In 1846, by Article 35 of a treaty with Colombia, the 
 United States guaranteed "positively and effica- 
 ciously . . . the perfect neutrality" of the Isthmus of 
 Panama. In 1901, the Panama Canal treaty was made 
 with Great Britain, by which it was provided that the 
 canal could never be blockaded, and that no act of hos- 
 tility could be committeed within it. 
 
 In 1903, this country by treaty guaranteed and 
 agreed to maintain the independence of the republic of 
 Panama. 
 
 By a treaty with Honduras in 1864, the United States 
 guaranteed the neutrality of the Honduras Railroad. 
 
 In 1889, by treaty with Germany and Great Britain, 
 the signatory powers recognized the neutrality of the 
 Samoan Islands and provided that the three powers 
 should have equal rights within the islands. 
 
 By the so-called Bryan treaties "for the advance- 
 ment of peace" made by the United States with 
 Guatemala, Norway, Portugal, Great Britain, Costa 
 Rica, Spain, Sweden, Denmark, France, Uruguay, 
 Peru, Paraguay, Italy, Russia, China, Chile, Ecuador, 
 Honduras, Brazil and Bolivia, we have, in practically 
 identical language, agreed that disputes arising be- 
 tween this country and the other countries named shall 
 be submitted for investigation and report to an inter- 
 national commission, and that while such investigation 
 is proceeding we will not resort to war for the satis- 
 faction of our rights. Even questions of national 
 honor and vital interest are not excluded. The com-
 
 170 PAPERS AND ADDRESSES 
 
 mission is to be so selected that in most cases a major- 
 ity of the commission will come from nations other 
 than those who are parties to the dispute. Finally, 
 by the "favored-nation" clauses of our commercial 
 treaties, we have acted on a principle not very different 
 from that underlying the economic boycott provided 
 for in Article XVI. 
 
 Thus, under the treaty-making power we have made 
 covenants for the reduction of armament, the mainte- 
 nance of armed forces in foreign territory, the fixing 
 of boundaries, the maintenance of neutrality of terri- 
 tory belonging to other nations, the guarantee of the 
 independence of other nations, the compulsory arbitra- 
 tion of disputed matters, with the postponement of 
 war during that process, the participation by this 
 country with other countries in the affairs and govern- 
 ment of backward nations, a restriction upon the right 
 to erect fortifications for the protection of property 
 in which this country is interested and with reference 
 to which it assumes a responsibility, and an appropria- 
 tion of money in order to make all such covenants 
 effective. Excepting that it deals in a single treaty 
 with a greater number of nations and a greater variety 
 of subjects, the covenant of the League does not re- 
 quire an invasion of the sovereignty of the United 
 States to a greater extent than that involved in such 
 covenants as these. 
 
 Provisions conferring powers upon the Council have 
 been pointed to as an excessive delegation of sover- 
 eignty. But the power delegated is no greater than 
 that conferred by the Bryan treaties upon arbitrators, 
 a majority of whom may be foreigners, and it is far 
 less than that by which the members of the Postal 
 Union renounced their important government prerog- 
 ative of fixing rates of foreign postage. The Council
 
 SOVEREIGNTY 171 
 
 was necessary for purposes of administration, but it 
 has no power to commit the League. It can only make 
 recommendations and even such advisory action can 
 be prevented by the veto of a single member of the 
 Council. 
 
 Finally, the real question is whether the restriction 
 upon sovereignty is justified by the expected result 
 for which it is imposed. No loftier purpose can be 
 sought for by any nation than the maintenance of 
 peaceful relations with other nations, and nothing will 
 so clearly justify for its accomplishment an appropri- 
 ate surrender of sovereignty. If Articles X, XII, 
 XIII, XV and XVI are effective to that end, it may 
 with truth be said, as Sir Frederick Pollock said of 
 the Bryan treaties, that if they result in undue detrac- 
 tion from our national independence, then such "inde- 
 pendence is a kind of legal fiction hardly worth preserv- 
 ing, like the absolute and individual sovereignty of 
 certain publicists, which, unfortunately for their doc- 
 trine, it is impossible to find in the Government of the 
 United States, or in any Federal Constitution." 
 
 CONSTITUTIONALITY 
 
 The Covenant of the League of Nations is a treaty, 
 and the validity of its provisions must, therefore, de- 
 pend upon the Federal Constitution which confers on 
 the President the "power, by and with the advice and 
 consent of the Senate, to make treaties, provided two- 
 thirds of the senators present concur." As by the 
 same instrument treaties are made "the supreme law 
 of the land," the President and the Senate in making 
 a treaty enact, or at least initiate, what is in the nature 
 of legislation, and they are made the agents of the peo- 
 ple for that purpose. But a certain school of pub-
 
 172 PAPERS AND ADDRESSES 
 
 Heists have asserted that a treaty dealing with matters 
 requiring supplementary action by Congress, as, for 
 instance, a declaration of war, should expressly pro- 
 vide that it is made subject to action by the House of 
 Representatives, or at least that the House should be 
 consulted before a treaty is agreed to. For a century, 
 however, the President and the Senate, without con- 
 sulting the House, have been negotiating treaties ; and 
 the Supreme Court, whenever the question has arisen, 
 has held that while they could not agree to do what is 
 forbidden by the Constitution, or to make a change in 
 the government of the United States or of one of the 
 states, or to cede the territory of one of the states 
 without its consent, there is not "any limit to the 
 questions which can be adjusted touching any matter 
 which is properly the subject of negotiation with a 
 foreign country." 
 
 Most treaties which have been made by the United 
 States would have remained empty pacts without ac- 
 tion by Congress. In connection with the present dis- 
 cussion it is pertinent to note that by some of such 
 treaties we have guaranteed the territorial integrity 
 or the political independence of some foreign nation, 
 and have thus committed the nation to war, if neces- 
 sary, for the enforcement of the guarantee; while by 
 others we have agreed to reduce armament on the 
 Great Lakes, to maintain a naval force on the coast of 
 Africa or to refrain from war during the arbitration 
 of international disputes ; and we have frequently made 
 treaties requiring the appropriation of money or some 
 economic legislation by Congress in order to give them 
 effect. But the President and the Senate have never 
 waited in making such treaties for action by Congress ; 
 nor, on the other hand, has that branch of the govern- 
 ment ever failed to enact necessary legislation.
 
 CONSTITUTIONALITY 173 
 
 There would be no constitutional way of compelling 
 Congress to take action, although a legal discretion to 
 refuse to act is virtually a power to abrogate a treaty. 
 Hamilton sums up the matter thus: 
 
 "The House of Eepresentatives has no moral power 
 to refuse the execution of a treaty which is not 
 contrary to the Constitution because it pledges the pub- 
 lic faith. ..." And Washington, in a case where the 
 question arose sharply, said that " every House of Rep- 
 resentatives has heretofore acquiesced and until the 
 present time not a doubt or suspicion has appeared to 
 my knowledge that this construction was not the true 
 one ; nay, they have more than acquiesced, for till now, 
 without controverting the obligation of such treaties, 
 they have made all the requisite provisions for carry- 
 ing them into effect." 
 
 Suggestions have been made that treaties of such 
 importance as the League of Nations should not be en- 
 tered into by the President without ascertaining the 
 will of the nation and of the representatives of the peo- 
 ple elected to the House of Representatives. But we 
 are a nation governed by a Constitution and there is no 
 way under that instrument for submitting a treaty 
 directly to the people or to Congress for their ap- 
 proval; and if governmental agencies vested with 
 treaty-making powers should attempt to do so, they 
 would be evading the duty clearly imposed upon them 
 by the Constitution. 
 
 Furthermore, it would not be possible to ascertain 
 how some future Congress would act. If the senti- 
 ments of one Congress could be ascertained, that would 
 be no assurance that the next Congress would be of 
 the same mind. One Congress might be willing to 
 enforce an economic boycott under Article XVI or to 
 take military measures for the performance of the
 
 174 PAPERS AND ADDRESSES 
 
 guarantee of Article X, while another would not assent 
 to such action. Congressional action would, of course, 
 be taken under the circumstances existing when a con- 
 crete situation had arisen; and in the vast majority of 
 cases it would be impossible to forecast those circum- 
 stances. It would, therefore, be a futile expedient to 
 procure assurances from the Congress that happened 
 for the moment to be in power. 
 
 It is quite true that, as the President and Senate 
 always take the initiative in making treaties, Congress, 
 in enacting supplementary legislation to give a treaty 
 effect, acts under a sort of coercion due to the fact that 
 duly constituted governmental agencies have com- 
 mitted the nation to a solemn moral obligation. But 
 this situation is inevitable under the distribution of 
 powers under the Constitution, and it no doubt 
 accounts for the historical fact that Congress has never 
 refused to take appropriate legislative action. It was 
 this phase of the matter that led President Washing- 
 ton, when the House of Representatives sought to in- 
 vestigate the instructions under which the minister of 
 the United States negotiated the Jay treaty, to refuse 
 to send to the House the papers which had been before 
 him when the treaty was signed, and to say: 
 
 "It is thus that the treaty-making power has been 
 understood by foreign nations, and in all the treaties 
 made with them we have declared and they have be- 
 lieved that when ratified by the President with the 
 advice and consent of the Senate they became ob- 
 ligatory. ' ' 
 
 THE MONROE DOCTRINE 
 
 Article XXI of the revised Covenant of the League 
 provides as follows:
 
 THE MONROE DOCTRINE 175 
 
 Nothing in this Covenant shall be deemed to affect the val- 
 idity of international engagements such as treaties of arbi- 
 tration or regional understandings like the Monroe Doctrine 
 for securing the maintenance of peace. 
 
 It is asserted that this article does not adequately 
 reserve the Monroe Doctrine because it is not a "re- 
 gional understanding" and its purpose is not the 
 "maintenance of peace." It is also objected that, 
 although the Monroe Doctrine is a national policy, any 
 dispute concerning its reservation in Article XXI 
 shall be submitted to the League for arbitration or 
 examination under Articles XIII or XV. The reason 
 for these objections disappears upon an examination 
 of the general purpose of the League and the character 
 and effect of the Monroe Doctrine. 
 
 In 1823 a number of South American states, having 
 thrown off the yoke of Spain, had become independent 
 republics. It was believed that the European powers 
 constituting the Holy Alliance were planning to over- 
 turn the independence of the new states and by making 
 them colonies of an European state to introduce in this 
 hemisphere the autocratic monarchical principle. It 
 was to frustrate such a design that President Monroe 
 in his annual message to Congress said: 
 
 "We should consider any attempt on their part 
 [the part of European powers] to extend their system 
 to any portion of this hemisphere as dangerous to our 
 peace and safety"; and "We could not view any inter- 
 position for the purpose of oppressing them [the young 
 American Republics] or controlling in any other man- 
 ner their destiny, by any European power, in any other 
 light than as the manifestation of an unfriendly dis- 
 position toward the United States." 
 
 The principle of the doctrine thus proclaimed has
 
 176 PAPERS AND ADDRESSES 
 
 been so developed during the last hundred years that it 
 now includes the prohibition of attempts by foreign 
 nations, whether by war or purchase, or diplomatic 
 intrigue, to make territorial acquisitions or establish 
 new strategical footholds upon or near the Western 
 Hemisphere, or to secure political advantage in the 
 domestic affairs of American nations. 
 
 The Monroe Doctrine is not a principle of interna- 
 tional law. It is a national policy based upon the right 
 of every nation to protect itself against acts tending to 
 embarrass it in preserving its own national interests 
 or political institutions. It is founded upon the same 
 right as the familiar concert of European powers, ex- 
 cept that it affects a greater number of nations more 
 widely separated geographically, and is asserted by 
 a single powerful nation able, without the sanction of 
 treaty stipulations, to maintain it. It does not become 
 effective so much by the acquiescence of the American 
 nations subject to its operation as from its recognition 
 by nations of other parts of the world as a political 
 policy which can not be disregarded by them except at 
 the risk of war with the United States. Since the Mon- 
 roe Doctrine is thus based upon an inherent national 
 right, it is entirely consistent with the principle of 
 mutual self-protection underlying Article X of the 
 Covenant of the League, which seeks to check threat- 
 ened "external aggression" affecting "the territorial 
 integrity and existing political independence of all 
 members of the League." 
 
 While doubtless Article X was designed primarily to 
 give protection to the seven new European republics 
 and the four autonomous nations in the Near East, 
 created under the Treaty of Peace, and probably also 
 to France and Belgium, in its broader aspect it was 
 intended, to use the words of the Preamble of the Gov-
 
 THE MONROE DOCTRINE 177 
 
 enant, "to achieve international peace and security" 
 by discouraging hostile aggression everywhere; and 
 so far as it prevents an European or an Asiatic nation 
 from interfering with the territorial integrity or the 
 existing political independence of any nation of the 
 Western Hemisphere, it accomplishes in that part of 
 the world precisely the result aimed at by the Monroe 
 Doctrine. And, furthermore, quite independently of 
 the new Article XXI, the United States would undoubt- 
 edly be the nation called upon under Article X to 
 repel an aggression upon an American state, because, 
 not only would its political interest be immediately 
 involved, but also because, by reason of territorial 
 proximity, it could most conveniently act. 
 
 It is in the light of these effects of Article X that the 
 express recognition of the Monroe Doctrine in Article 
 XXI should be examined. 
 
 It is argued that the doctrine itself is inadequately 
 reserved by referring to it as a " regional understand- 
 ing." It need not be denied that this descriptive 
 phrase was not the best that could have been selected 
 to define the Monroe Doctrine, although the doctrine 
 is "regional" in that it relates to a particular region 
 and is an "understanding" in that it is widely ac- 
 cepted by the nations of the world. Probably the 
 draftsmen of Article XXI, the majority of whom were 
 European statesmen, thought it unwise to attempt to 
 formulate a definition of an American political policy, 
 concerning the limitations of which American states- 
 men have not always themselves agreed. But the im- 
 portant thing is that the Monroe Doctrine is declared 
 to be "valid," thus rendering its continued existence 
 unaffected by the Covenant ; and, as the common under- 
 standing in this country of its character and effect is 
 consistent with the principle of the general purpose
 
 178 PAPERS AND ADDRESSES 
 
 of the Covenant, as indicated in Article X and the 
 other articles designed to preserve the peace of the 
 world, it is a far cry to argue that the somewhat inept 
 use of the phrase "regional understandings" indi- 
 cates that the high contracting parties intended by 
 indirection to raise doubts as to the complete reserva- 
 tion of the doctrine. 
 
 No definition of the Monroe Doctrine having official 
 sanction has ever been given except by Presidents or 
 Secretaries of State; and, except in the few concrete 
 cases that have required its application, they have gen- 
 erally contented themselves with describing its histori- 
 cal origin and the general principle on which it is 
 founded. Even the Senate, in ratifying The Hague 
 convention of 1907, and in seeking to reserve the Mon- 
 roe Doctrine, referred to it as "our traditional attitude 
 toward purely American questions," leaving the char- 
 acter of that "attitude" as much subject to question by 
 the signatories as it had been before the reservation 
 was made. And, although, on the one hand, Secretary 
 Olney in 1895, in the Venezuelan controversy, said: 
 ' ' To-day the United States is practically sovereign on 
 this continent and its fiat is law upon the subjects to 
 which it confines its interposition"; on the other hand, 
 President Roosevelt in 1901 said that the Monroe Doc- 
 trine did not prevent foreign nations from collecting by 
 force debts owing by American nations; and in 1866 
 this country refused to protect Chile when Spain was 
 bombarding her ports, because it would not intervene 
 in wars between European and American states "if 
 they are not pushed ... to the political point." 
 
 These references serve to point out the difficulty of 
 an attempt in any diplomatic document to define the 
 Monroe Doctrine. 
 
 But however inept it may be to refer to the Monroe
 
 THE MONROE DOCTRINE 179 
 
 Doctrine as a "regional understanding,'' Article XXI 
 correctly describes it as " securing the maintenance of 
 peace." It was of the essence of the doctrine that for- 
 eign nations should not be permitted to implant among 
 the nations of the "Western Hemisphere autocratic prin- 
 ciples of government lest they should become a menace 
 to the free institutions of the United States, and we 
 might again have to resort to arms for the maintenance 
 of the principles settled by the Revolution ; and in prac- 
 tice the dominance of this country in the affairs of the 
 Western Hemisphere has undoubtedly saved it from 
 repeated exploitation at the hands of European and 
 Asiatic nations. The frequent revolutions in South 
 and Central America, often accompanied by the seizure 
 of power in the name of liberty by disloyal and unscru- 
 pulous dictators, would have afforded tempting oppor- 
 tunities to European autocracies, at small expense and 
 by the use of a merely nominal force, to secure a perma- 
 nent foothold upon this continent, gradually establish- 
 ing colonies which would have become a menace to 
 our republican institutions, or at least a source of 
 national disquietude. All of this has been prevented 
 without the use in a single instance of military force, 
 by the Monroe Doctrine, which is, therefore, aptly de- 
 scribed in Article XXI as "securing the maintenance 
 of peace." 
 
 But if the Senate is of the opinion that the use of 
 the words "regional understanding" creates any doubt 
 as to the meaning of Article XXI, it can, in ratifying 
 the treaty, make a declaration that its action is taken 
 under the reservation that the Covenant is to be so 
 construed as to leave the Monroe Doctrine unaffected. 
 In view of the general purpose and effect of the League, 
 referred to above, such a reservation would not be re- 
 garded as a substantial amendment of the Covenant.
 
 180 PAPERS AND ADDRESSES 
 
 Upon this point the official commentary of the delegates 
 of Great Britain upon the revised Covenant is particu- 
 larly pertinent. They refer to the Monroe Doctrine 
 and similar understandings as having ''shown them- 
 selves in history to be not instruments of national am- 
 bition but guarantees of peace," and add: 
 
 "The origin of the Monroe Doctrine is well known. It was 
 proclaimed in 1823 to prevent America from becoming a 
 theatre for the intrigues of European absolutism. At first 
 a principle of American foreign policy, it has become an in- 
 ternational understanding, and it is not illegitimate for the 
 people of the United States to ask that the Covenant should 
 recognize this fact. 
 
 "In its essence it is consistent with the spirit of the Cove- 
 nant, and, indeed, the principles of the League as expressed 
 in Article X represent the extension to the whole world of 
 the principles of this doctrine; while, should any dispute as 
 to the meaning of the latter ever arise between the American 
 and the European powers, the League is there to settle it. ' ' 
 
 This commentary receives especial force from the 
 facts that England had a close historical connection 
 with the proclamation of the Monroe Doctrine in 1823 
 and that in the Venezuelan dispute the most advanced 
 claim as to the scope of the doctrine was sharply called 
 to her attention. No delegation at the Peace Confer- 
 ence probably understood better than that of Great 
 Britain how the Monroe Doctrine was intended to be 
 affected by Article XXI. 
 
 As the "validity" of the Monroe Doctrine is not 
 "affected" by Article XXI, the doctrine is excluded 
 from the operation of the Covenant. If, therefore, a 
 case within the principle of the doctrine should arise 
 it would not be within the jurisdiction of the League. 
 Even if a question whether the doctrine extended to a 
 particular situation should be made the subject of
 
 THE MONROE DOCTRINE 181 
 
 inquiry under Article XV, there should be little doubt 
 of the result; for, if we except a few cases where 
 doubt has existed as to the applicability of the doctrine, 
 and the belated assertion of President Carranza that 
 it is nonexistent, it is now understood by all the nations 
 of the world. 
 
 But it is too late to have forebodings on account of 
 the remote chance that a question concerning the Mon- 
 roe Doctrine may have to be submitted to arbitration or 
 inquiry under the Covenant ; for, by the Bryan treaties, 
 ratified by the Senate in 1914 and 1915, we have already 
 agreed with Great Britain, France, Italy and six other 
 European nations, as well as with Chile, Brazil, Peru 
 and seven other American states, that all disputes of 
 an international character, including those affecting 
 national honor and vital interests, such as the Monroe 
 Doctrine, shall be submitted to an international com- 
 mission for investigation and report, and that pending 
 such report war will not be declared or hostilities com- 
 menced. These treaties are "international engage- 
 ments" and their validity, within the reservation of 
 Article XXI, is not affected by the Covenant. Under 
 the Bryan treaties, therefore, investigators, a majority 
 of whom are not to be American citizens, would have 
 jurisdiction to consider and report concerning any dis- 
 pute arising under the Monroe Doctrine ; and while the 
 investigation was proceeding this country would be 
 obliged to abstain from enforcing the doctrine, how- 
 ever exigent the situation might be. 
 
 Under such circumstances the question whether Arti- 
 cle XXI adequately reserves the rights of the United 
 States under our traditional national policy loses much 
 of its importance.
 
 THE TREATY IN THE SENATE
 
 VIII 
 
 THE TREATY IN THE SENATE 1 
 
 Why the Paris Covenant Cannot Be Amended With- 
 out Postponing the Peace the World Needs 
 
 If Section I of the treaty with Germany, being the 
 Covenant of the League, is amended by the Senate, 
 neither the treaty as a whole nor any of its provisions 
 can become effective either to restore peace or for any 
 other purpose until it has been ratified in its amended 
 form by all of the signatory nations. 
 
 Late dispatches indicate that the treaty provides 
 that it will become operative when signed by Germany 
 and three of the principal allied powers. Thus, after 
 Germany shall have signed the treaty, Great Britain, 
 France and Japan or Italy, by ratifying it, will imme- 
 diately be able to enjoy the advantages of a resumption 
 of their commercial activities under peace conditions, 
 while our enjoyment of the same advantages will be 
 delayed until amendments made by the Senate shall 
 have been formally accepted by all of the signatories. 
 Not only would such delay prevent us from engaging 
 in international trade on equal terms with the nations 
 signing the treaty, but our internal trade would 
 continue to be shackled by such things as the fixing of 
 prices of wheat and other commodities, the necessity 
 for obtaining freight and shipping licenses, the activ- 
 ities of the Alien Property Custodian, and other like 
 restrictions, most of which under the law remain effec- 
 tive until a state of peace has been proclaimed by the 
 President. 
 
 i Paper reprinted from an article published in the New York Times 
 of May 30, 1919. 
 
 185
 
 186 PAPERS AND ADDRESSES 
 
 THE WAR CANNOT BE ENDED BY JOINT RESOLUTION BY 
 
 CONGRESS 
 
 It has been suggested that because Congress has 
 power to declare war it has, by necessary inference, 
 the power to end it by joint resolution. Such a theory 
 is based on an interpretation of the distribution of 
 powers under the Constitution contrary to all prece- 
 dent, is inadmissible upon any reasonable theory of 
 implied powers, and is contrary to uniform historical 
 practice. 
 
 The war has required the regulation, and, to a 
 greater or less extent, the requisitioning of a large 
 part of the industrial and transportation facilities of 
 the nation. Personal and property interests and con- 
 tract rights of an infinite variety and involving im- 
 mense sums of money, are governed by special rules 
 of law applicable during a state of war and by num- 
 erous special war measures, and these cannot be put 
 on a definite legal peace basis except by a formal treaty. 
 Indeed, some of the war statutes provide that their 
 provisions shall remain effective until the ratification 
 of a treaty of peace, and others until peace shall be 
 proclaimed by the President; and important private 
 contracts frequently provide that their obligations 
 shall, or may, at the option of the parties, be termin- 
 ated upon such ratification or proclamation. A peace 
 treaty can only be ratified in the constitutional manner, 
 and it is absurd to suppose that the President would 
 proclaim it before such ratification. If Congress 
 should attempt by joint resolution to declare that peace 
 had been restored, such a condition of doubt and con- 
 fusion concerning a multitude of transactions legally 
 affected by the war would be created, that there would 
 be brought down on the heads of Congressmen such uni-
 
 THE TREATY IN THE SENATE 187 
 
 versal condemnation that we are safe in assuming that 
 the suggestion for such action will never be treated 
 seriously. 
 
 HOW AN AMENDMENT TO THE COVENANT WILL AFFECT THE 
 
 REST OF THE TREATY 
 
 The treaty with Germany is made by the twenty- 
 seven allied and associated nations. It forms a large 
 book, containing fifteen sections or chapters, the first 
 of which is the Covenant of the League of Nations. 
 The Covenant and many of the provisions of the other 
 sections are interdependent. 
 
 The much-discussed Article X of the Covenant binds 
 all members to preserve "as against external aggres- 
 sion the territorial integrity and existing political in- 
 dependence of all the members of the League." This 
 article has for its chief purpose the preservation of the 
 seven new European nations and the four autonomous 
 nations in the Near East created by the treaty ; and it 
 is the only provision of the treaty which effectively 
 gives to the new governments the sanction of the com- 
 bined support of all of the signatory nations. Its 
 omission or amendment would make a vital change in 
 sections of the treaty other than that containing the 
 Covenant. Furthermore, by those sections important 
 functions are directly vested in the League. 
 
 Thus, the League is to create an international com- 
 mission which is to govern the Saar Basin for fifteen 
 years, and another under which Danzig is to be gov- 
 erned as a free city. If Germany ultimately buys the 
 mines in the Saar Valley from France, the League is 
 to determine the amount of coal to be sold annually to 
 France. In connection with the neutralized zone east 
 of the Rhine, established by the treaty to protect 
 France and Belgium, the League is to question Ger-
 
 188 PAPERS AND ADDRESSES 
 
 many at any time concerning a violation of neutrality. 
 It is also to act as a final court in relation to the estab- 
 lishment of the Belgian-German frontier and in dis- 
 putes as to the Kiel Canal. Under its direction, an in- 
 ternational conference on labor is to be held in October, 
 and it is also to establish a permanent organization 
 for the international adjustment of labor conditions. 
 For five years, and under conditions of reciprocity 
 thereafter, ships of the allied powers are, unless the 
 League otherwise decides, to enjoy the same rights in 
 German ports as German vessels. Riparian states 
 on the Danube and other international streams are to 
 enjoy advantages in relation to navigation, subject 
 to an appeal to a special tribunal of the League, which 
 may also arrange for a general international water- 
 ways convention. 
 
 Thus, it will be perceived, the League is to perform 
 functions of a varied, extensive, and highly important 
 character; and it is idle to talk of separating from 
 the rest of the treaty Section I, by which the League 
 is created, or materially amending its provisions, 
 without dislocating the entire scheme of the treaty 
 and necessitating a resumption of the formal peace 
 negotiations. 
 
 WHAT THE SENATE MAY DO 
 
 The Senate may, of course, consider the Covenant 
 independently of the rest of the treaty. It may make 
 its own position clear by adopting a preliminary reso- 
 lution approving all the sections except that containing 
 the Covenant, and it may amend the Covenant or any 
 part of the treaty. Such an amendment may even 
 be the entire omission of the Covenant. But the Sen- 
 ate must ultimately take some definite action upon the 
 entire treaty — amended or unamended. If such action
 
 THE TREATY IN THE SENATE 189 
 
 is an approval, it will require a vote of " two-thirds of 
 the senators present," although before such final ac- 
 tion specific amendments may be adopted by a ma- 
 jority vote. 
 
 But an approval of the treaty, subject to amend- 
 ments, is not effective to make it operative until in its 
 amended form it is agreed to by all the nations who 
 were the original signatories. 
 
 The principle applicable to such case was stated by 
 Justice Brown of the Supreme Court, in interpreting 
 the treaty of peace with Spain. {The Diamond Rings, 
 183 U. S., 176.) He said: 
 
 "Obviously the treaty must contain the whole contract 
 between the parties, and the power of the Senate is limited to 
 a ratification of such terms as have already been agreed 
 upon between the President, acting for the United States, and 
 the commissioners of the other contracting power. The Sen- 
 ate has no right to ratify the treaty and introduce new terms 
 into it which shall be obligatory upon the other power, 
 although it may refuse its ratification or make such ratifi- 
 cation conditional upon the adoption of amendment to the 
 treaty." 
 
 ALTERNATIVES OPEN TO THE SENATE 
 
 If the Senate should notify the President that the 
 Covenant was still under consideration, but that the 
 rest of the treaty had been approved, the President 
 would probably wait before communicating with the 
 other signatories until final action upon the Covenant 
 had been taken by the Senate, and if such action was 
 not taken within a reasonable time he would notify 
 them that the treaty had been rejected. If, on the other 
 hand, the Senate should approve the ratification of 
 the treaty subject to an amendment striking out or ma-
 
 190 PAPERS AND ADDRESSES 
 
 terially changing the Covenant, two courses would be 
 open to the President. If he approved the amended 
 treaty, he could advise the other nations that the treaty 
 would be ratified if the amendments were agreed to; 
 and if they were agreed to, the amended treaty would 
 be ratified by the President without further action by 
 the Senate. This was the procedure adopted when the 
 Senate amended the Jay treaty of 1794-95 by suspend- 
 ing the operation of the Twelfth Article relating to the 
 trade between the United States and the English col- 
 onies in the West Indies. 
 
 If, however, the Senate's amendment should not 
 meet with the approval of the President, he could 
 abandon the treaty. That was done where the Senate 
 so amended the so-called "Taft-Knox" arbitration 
 treaties with France and Great Britain that the Presi- 
 dent was unwilling to press the negotiations further. 
 
 What steps the law and procedure of other nations 
 would require them to take in the event of an approval 
 by the Senate, subject to amendments, need not be 
 fully considered. The formalities would undoubtedly 
 occupy many months and would vary among the numer- 
 ous signatory nations. Amendments might be agreed 
 upon through the ordinary diplomatic channels; but 
 it is more probable that they would require more for- 
 mal consideration, and perhaps the reassembling of the 
 peace delegates. 
 
 APPROVAL BY THE SENATE WITH A DECLARATION OF ITS 
 INTERPRETATION OF THE TREATY 
 
 It not infrequently happens that doubt arises as to 
 the meaning of some clause of a treaty. It has already 
 arisen with reference to Article XXI of the covenant 
 relating to the Monroe Doctrine. In such a case a res-
 
 THE TREATY IN THE SENATE 191 
 
 olution may be passed by the Senate stating its under- 
 standing of the meaning and effect of the doubtful 
 clause. 
 
 This is done where a treaty is capable of a double 
 interpretation, or is obscure, or where it fails alto- 
 gether to mention some matter of vital importance that 
 may be affected. Thus the Senate, in approving the 
 Algeciras Convention of 1906, stated that it under- 
 stood that the participation of the United States in 
 the conference was not intended to indicate a depar- 
 ture "from the traditional American foreign policy 
 which forbids participation by the United States in 
 the settlement of political questions which are entirely 
 European in their scope." Similarly, in the second 
 Hague Convention one reservation made was that noth- 
 ing the treaty contained was to be * ' so construed as to 
 require the United States of America to depart from its 
 traditional policy of not intruding upon, interfering 
 with or entangling itself in the political questions of 
 policy or international administration of any foreign 
 state ; nor shall anything contained in the said conven- 
 tion be construed to imply a relinquishment by the 
 United States of its traditional attitude toward purely 
 American questions." 
 
 Undoubtedly such reservations as these, which do not 
 purport to amend, but only to interpret treaties, do not 
 constitute such a change in the terms of the treaties 
 themselves as to require ratification by the other par- 
 ties; and when the treaties are ratified, promulgated 
 and acted under, an interpretation so reserved, espec- 
 ially if not seasonably objected to, would with the 
 lapse of time become increasingly difficult to question. 
 
 But an expression of the Senate, which, though pur- 
 porting to be a mere interpretation, seeks to introduce 
 a substantial change, is in fact an amendment. Its
 
 192 PAPERS AND ADDRESSES 
 
 adoption, on principles already referred to, amounts 
 to a disapproval of the treaty and requires its resub- 
 mission as amended to the other parties. A case of 
 that kind arose under the Guadalupe-Hidalgo treaty 
 with Mexico in 1848 and was the subject of a contro- 
 versy in the Senate. 
 
 WHAT MAY AND WHAT MAY NOT BE DONE WITH THE 
 COVENANT IN THE SENATE 
 
 Article XXI of the Covenant provides that "Nothing 
 in this Covenant shall be deemed to affect the validity 
 of . . . regional understandings like the Monroe Doc- 
 trine for securing the maintenance of peace." If the 
 Senate should approve the treaty, stating that its ap- 
 proval was given upon the understanding that the 
 treaty was not intended to affect any question involv- 
 ing the maintenance of the Monroe Doctrine, the reser- 
 vation would not affect the force of the approval, for 
 the reason that it would state what undoubtedly was the 
 intended meaning of Article XXI. 
 
 If, however, the reservation went to the extent of 
 withholding unconditional assent to Article X of the 
 Covenant and attempted to qualify the obligation im- 
 posed by that article by either specifying a limited set 
 of circumstances in which it should apply, or by limit- 
 ing the period during which it should be effective, it 
 clearly would be an amendment of the covenant itself 
 in a vital and important particular. 
 
 Mr. Root's proposed amendment of the covenant, 
 providing for compulsory arbitration and a conference 
 for the purpose of dealing with the principles of inter- 
 national law, would also undoubtedly constitute an 
 amendment of the treaty requiring a reopening of 
 negotiations. But his reservation as to the "tradi- 
 tional attitude toward purely American questions," so
 
 THE TREATY IN THE SENATE 193 
 
 far as it is intended to reserve any question affected by 
 the Monroe Doctrine, probably would not be regarded 
 as a material amendment, but only as an interpreta- 
 tion of the treaty; and his proposed reservation 
 against the submission of our policy regarding ques- 
 tions of "the admission of immigrants to the decision 
 or recommendation of other powers," being undoubt- 
 edly under Article XV of the Covenant "a matter 
 which, by international law, is solely within the domes- 
 tic jurisdiction" of the United States, would not be at 
 variance with the provisions of the treaty or regarded 
 as a substantial amendment. His suggested amend- 
 ment, however, limiting the duration of the obligations 
 under Article X so as to permit the parties, after five 
 years and by giving one year's notice in writing, to 
 terminate them, and his proposed change of Article 
 IX in relation to the inspection and verification of 
 armament, and of Article XIV providing for a con- 
 ference to revise the Covenant and permitting the with- 
 drawal of a member on one year's notice, would all un- 
 doubtedly come within the category of amendments to 
 the treaty which, if adopted by the Senate, would re- 
 quire the assent of all parties to the treaty before 
 ratification.
 
 WHAT IS TO BE DONE WITH OUR 
 RAILROADS?
 
 IX 
 
 WHAT IS TO BE DONE WITH OUR 
 RAILROADS? 1 
 
 A Plan of Reorganization Suggested, Under Which 
 the Best Features of Competition and Govern- 
 ment Control Can Be Retained 
 
 In a recent speech before the General Assembly of 
 Iowa, Senator Cummins very truly said that, with the 
 exception of the League of Nations, the most important 
 and the most difficult reconstruction problem confront- 
 ing the country is the adjustment of the relation be- 
 tween the government and the railroads. Railroad 
 managers, holders of railroad securities, bankers, la- 
 bor leaders, shippers, state railroad commissions, and 
 others have proposed plans for the reorganization of 
 the national railroad system. But in most of these 
 plans the authors have failed sufficiently to heed the 
 admonition of Senator Cummins that " transportation 
 by railway" must be regarded "as a governmental 
 function." Yet it is undoubtedly that consideration 
 which will be most potent with Congress when it comes 
 to deal with the subject. 
 
 While the experience of the country since the govern- 
 ment took over the railroads has inclined public opinion 
 against government operation, that is because such 
 operation cannot be made economical or efficient, — it 
 is not because the people have ceased to believe that 
 the ownership of railroads is affected by a public trust. 
 Indeed, if the public had not become convinced that 
 their interests would not be best subserved by govern- 
 
 i Reprinted from articles published in the Neio York Times of May 
 6-7, 1919. 
 
 197
 
 198 PAPERS AND ADDRESSES 
 
 ment operation, it is probable that the roads would 
 never be returned to private operation ; and it is quite 
 certain that when they are returned they will be under 
 much closer regulation than ever before, especially if 
 they are to enjoy a government guarantee in any form. 
 
 The idea is now quite prevalent that the railroads 
 of the country should be consolidated into a compara- 
 tively few large systems, and it is also generally con- 
 ceded that in some definite way their credit must be 
 established, so as to enable them in the future to pro- 
 cure necessary capital requirements. If this is ac- 
 complished through a government guarantee, ordinary 
 business considerations will lead to a much closer asso- 
 ciation between the government and the railroads for 
 the protection of the government 's obligation. Indeed, 
 with a more direct responsibility resting upon the 
 government with reference to both rates and wages, 
 the arrangement will be but one step from government 
 ownership and operation, and its success will largely 
 depend on government responsibility. 
 
 An adequate plan can probably be worked out before 
 the expiration of the period within which under the 
 railroad control act the roads must be returned to the 
 companies. If the government had decided to shorten 
 this period, as Mr. McAdoo proposed, the result might 
 have been a return to pre-war conditions, modified only 
 by amendments of the anti-trust law and other similar 
 statutes, permitting pooling agreements among com- 
 peting lines. Such a result would have been extremely 
 unsatisfactory. 
 
 The war made it necessary to take over the roads 
 from the companies. The transfer was made without 
 undue disturbance, many problems were thereby au- 
 tomatically settled, which in normal times by the slow 
 process of evolution would probably have occupied
 
 OUR RAILROADS 199 
 
 years in discussion, and an opportunity unexpectedly 
 developed for a permanent solution of the entire rail- 
 road problem. But a mere restoration of pre-war con- 
 ditions, even if combinations and pooling agreements 
 are permitted, would probably not go far in the direc- 
 tion of settling the relations between the government 
 and the companies, of stabilizing rates and wages or of 
 improving the service ; and unless we succeed in making 
 a permanent improvement in such things as these, we 
 shall not have made the best of the opportunity which 
 the war has fortuitously opened up. For, however un- 
 satisfactory some features of government operation 
 have been, there has been a convincing demonstration 
 of many important advantages due to unified control, 
 and the lesson would be largely lost if the roads were 
 turned back without at the same time embodying these 
 advantages permanently in the transportation system 
 of the country. Fortunately, there is a fair prospect 
 that this may be accomplished ; but it wall not be unless 
 the railroad owners become reconciled to a much closer 
 relationship to the government than has heretofore 
 existed. 
 
 A PLAN OUTLINED 
 
 Having in view the foregoing considerations, I sug- 
 gest for consideration a plan of reorganization upon 
 the basis of the following general lines, viz : 
 
 1. Let some governmental agency divide the country 
 into regions with reference to existing currents of 
 trunk-line traffic, and in such a manner that competi- 
 tion shall exist between groups of roads in one region 
 and those in each contiguous region. 
 
 2. Create in each region a federal corporation with 
 one class of stock, and one class of bonds, and under 
 contract with the government to acquire, by the issue
 
 200 PAPERS AND ADDRESSES 
 
 of these securities in exchange for those of existing 
 companies, or by the exercise of the right of eminent 
 domain, all of the roads within the region. 
 
 3. Let the government guarantee (a) interest on the 
 bonds at such a rate that the bonds may be sold at not 
 less than par, and (b) dividends on the stock at 4 per 
 cent., subject to a readjustment after a fixed period of 
 years, the stockholders to be entitled to receive addi- 
 tional dividends, if earned, of 2 per cent., and to share 
 equally with the government any net earnings in excess 
 of an aggregate of 6 per cent, on the stock. 
 
 4. As a result of the foregoing the government will 
 necessarily participate more than in the past in the 
 fixing of both rates and wages. 
 
 FUNDAMENTAL CONSIDERATIONS 
 
 I. Of the first importance is the creation of a trans- 
 portation system which will be an effective instrument 
 for the development of the social, political, economic 
 and commercial life of the nation. This cannot be done 
 without the cooperation of the general public, the in- 
 vesting public, the traveling and shipping interests, 
 labor, organized and unorganized, and expert railroad 
 managers. The problem is complex and difficult. It 
 needs for its solution the thoughtful attention of every 
 one knowing anything about the subject without undue 
 bias caused by particular interest. It is no time for a 
 business "trade" in the ordinary sense. 
 
 II. The interest of the present owners of the railway 
 systems must next be considered. To fail to give this 
 just and sympathetic consideration would result in a 
 subtle form of confiscation. There is a popular mis- 
 conception as to who these owners are. They consist 
 of the stockholders and the bondholders. While, 
 through long association with particular properties,
 
 OUR RAILROADS 201 
 
 certain bankers and financial interests are supposed to 
 own some railway systems, the fact is that far more 
 than half of the railroad securities, both stock and 
 bonds, now outstanding, is owned by investors either 
 individually or through such financial institutions as 
 savings banks and life insurance companies. It is 
 said that seventeen billions of railroad capital are 
 owned by 50,000,000 people, directly or indirectly. The 
 influence that bankers have exercised in the manage- 
 ment of some of the larger systems of the country has 
 not been based upon their ownership of securities of 
 the roads, but has been rather due to small investors 
 seeking their advice and assistance. Additional rail- 
 way capital will constantly be needed, since railroads 
 are never finished, and it must continue to come from 
 the millions of small investors, whether under govern- 
 ment ownership it is raised by the sale of government 
 securities, or under private ownership through the 
 financial operations of private corporations. In either 
 case it is vital that new financial structures be so 
 erected that investors in railroad securities be not 
 subjected again to the instability which the govern- 
 mental policy of the recent past has caused. 
 
 PAST EVILS EEMEDIED 
 
 It is undoubtedly true that in the early days the 
 questionable, and even dishonest, gains of railroad 
 contractors from branch-line construction or of man- 
 agers in the acquisition of extensions in which they had 
 a personal interest, overcapitalization, stock gambling, 
 secret rebates, and illegal pooling, were common; but 
 through bankruptcies and other corporate transmuta- 
 tions the water has been largely squeezed out of rail- 
 road securities, the sins of reactionary and rebellious 
 railroad managers, owners and stock jobbers have been
 
 202 PAPERS AND ADDRESSES 
 
 expiated, and the railroads of the country are now 
 owned in large part by the smaller investors who have 
 honestly paid for their stock and bonds at market 
 prices. For a long time after the Interstate Commerce 
 law and the Anti-Trust law were passed, railroad man- 
 agers generally adopted the unwise policy of opposing 
 efforts of governmental agencies designed for the pro- 
 per adjustment of the relation between the railroads 
 and the government. They treated the Interstate 
 Commerce Commission with little respect, and they did 
 nothing of a constructive character to help to solve the 
 problem. But remedies were finally found, although, 
 as often results from excessive opposition, the pendu- 
 lum swung too far and the legislative and adminis- 
 trative correctives became too radical, with the result 
 that for a number of years before the government took 
 over the railroads the companies were denied bare 
 justice in the matter of rates, their lifeblood. For 
 some time before the war the Interstate Commerce 
 Commission persistently refused to heed petitions for 
 increases of rates which were generally regarded as 
 meritorious, and Avere certainly needed to prevent 
 financial embarrassment. It is largely due to the fact 
 that it was thought that the railroads were not being, 
 and would not be, treated with justice, that the credit 
 of the railroads became seriously impaired by investors 
 refusing to buy their securities, particularly their 
 bonds. The policy of the government has not been 
 sufficiently changed in the management of the railroads 
 under the Federal Control act. In the fixing of the 
 standard return under the power conferred by that 
 law, the Director General has sometimes failed to give 
 adequate consideration to the peculiar conditions 
 brought about bv the Interstate Commerce Commission 
 itself, through its refusal for several years to establish
 
 OUR RAILROADS 203 
 
 just rates, and particularly in the case of the weaker 
 roads which needed the special treatment which the 
 law permitted the Director General to accord to them. 
 Thus, it has come about that first the Interstate Com- 
 merce Commission, by refusing to raise the rates, kept 
 down the net earnings, and then in fixing the standard 
 return the Director General did not always consider 
 the situation which the government itself had thus 
 brought about. If the injustice of this situation is not 
 recognized and compensated for in any plan that may 
 be adopted, not alone will the present investor be 
 damaged, but the difficulty of obtaining money for 
 future needs will be greatly increased. 
 
 THE LABOR PROBLEM 
 
 III. Labor must be fairly treated, and the power of 
 the government must in some direct or indirect way be 
 employed to accomplish that result. A fair return for 
 labor is, of course, just as important as a just return 
 to capital. Indeed, many thoughtful observers of 
 world conditions believe that the next decade is to be an 
 era of a participation by labor greater than ever before 
 in the profits of production of all kinds. Furthermore, 
 in the past the fixing of wages has been too much re- 
 garded as a matter solely between capital and labor — 
 that is, between owners and employees — and satisfac- 
 tory results have not come to either party. In the 
 emergency of the war, the government, through in- 
 creased rates, has made the public pay for the increase 
 of wages, and hereafter, whether the government or the 
 companies own and operate the roads, the interdepend- 
 ence of rates and wages will probably, more than in 
 the past, become the basis of all calculation. If this be 
 true, there will always be three parties involved in all 
 wage controversies, viz: the owners (especially if they
 
 204 PAPERS AND ADDRESSES 
 
 have an interest in the profits in excess of any amount 
 guaranteed to security holders by the government), 
 the employees, and the government representing the 
 public. Any increased operating cost, caused by a re- 
 adjustment of wages, must be borne by the owners and 
 the public in some just proportion, and in fixing the 
 proportion the government will be interested even 
 more than the owners, who will have the larger part 
 of the return upon their securities assured by the gov- 
 ernment guarantee. 
 
 STATE REGULATION 
 
 IV. To what extent state utilities commissions shall 
 continue to exercise powers of regulation is an import- 
 ant question. If the plan proposed above is adopted it 
 will avoid the necessity for intervention by state com- 
 missions in some matters, particularly in the super- 
 vision of the issue of corporate securities. So, too, 
 with consolidated systems owned by federal corpora- 
 tions and extending through a number of states, with 
 their most important traffic having an interstate aspect, 
 there will probably be but few and unimportant intra- 
 state rates for them to regulate. Still, there will re- 
 main local interest which can be dealt with by state 
 commissions more adequately and to the greater satis- 
 faction of localities than by a distant federal commis- 
 sion; and in such matters these powers should not be 
 interfered with. 
 
 Further Consideration of the Principal Features 
 
 of the Plan 
 
 1. the grouping 
 
 It would be necessary in each region to take into 
 consideration the character of the population and in-
 
 OUR RAILROADS 205 
 
 dustries, the climate, the probable direction of develop- 
 ment in sparsely settled parts of the country, and, 
 most important of all, the maintenance and develop- 
 ment of a healthy competition between groups of roads 
 in contiguous regions. Competition within each group 
 would, of course, have to be eliminated. Save in ex- 
 ceptional cases, splitting up (longitudinally) of exist- 
 ing and established trunk lines would have to be 
 avoided. 
 
 Consolidation of the roads within each region, 
 through voluntary exchange of existing securities for 
 those of new federal regional corporations, will be 
 induced by (a) giving regulatory jurisdiction of inter- 
 state transactions to a local federal commission, (b) 
 making such government guarantee of interest and 
 dividends upon bonds and stock of the regional corpor- 
 ation as will make an exchange of securities advan- 
 tageous, and (c) clothing each regional corporation 
 with powers of condemnation. There is little doubt 
 that a plan can be devised which will hold out such 
 inducements to the large systems in each group that a 
 consolidation into a single system owned by a federal 
 corporation can be accomplished without resorting, 
 save in exceptional cases, to the right of eminent 
 domain. 
 
 The complete abolition of competition resulting 
 from government ownership would discourage initia- 
 tive and ambition on the part of railroad managers, 
 would affect the morale of railroad employees, and 
 would remove the most easily available comparative 
 tests of results of operation. But a well-balanced 
 group of railroads within a single region would not be 
 essentially different from one of our great industrial 
 combinations, and economies would be made possible on 
 such a system through standardization of methods, re-
 
 206 PAPERS AND ADDRESSES 
 
 duction of expense of administration, and the elimina- 
 tion of expensive and unprofitable facilities which com- 
 petition has created; and these results would more 
 than compensate for the disadvantage of discontinu- 
 ing intra-regional competition. If fifteen or twenty 
 groups were established the elimination of competi- 
 tion in any one group would be far less in proportion 
 to the entire transportation business of the country 
 than that effected by such combinations as the United 
 States Steel Corporation, the Packers' combination, 
 the Standard Oil Company, the American Sugar Re- 
 fining Company, etc. 
 
 But even if eflficiencv in the service mav to some ex- 
 tent be impaired by the proposed combinations, that 
 is a disadvantage which is far outweighed by the coun- 
 tervailing advantages. Without some grouping sys- 
 tem under the direct supervision of regional commis- 
 sions, the benefits of a government guarantee of securi- 
 ties and a stabilization of rates and wages can prob- 
 ably not be obtained, for if the government is to as- 
 sume a larger obligation in relation to these matters, it 
 must establish a supervising organization which will be 
 adequate for the protection of its interests as a partner 
 in the enterprise. But neither the supervision by the 
 government nor the assured return upon the securities 
 of the regional companies need interfere with the 
 quality of service rendered to the public. Such a 
 grouping of roads can be made as to maintain active 
 competition between the groups, and it is not probable 
 that there will be any great damage through elimina- 
 tion of competition within the groups themselves. It 
 is fair to say that it is those advocating the preserva- 
 tion of the existing corporations that lay the greatest 
 stress upon the supreme importance of competition; 
 and their desire to restore the old order of things may
 
 OUR RAILROADS 207 
 
 lead them to over-accentuate the point. But it is evi- 
 dent that the public will not concede the advantages of 
 a partial copartnership arrangement unless many of 
 the existing lines, perhaps unnecessary altogether, or, 
 in any event, maintained under uneconomical condi- 
 tions, are so consolidated and managed as to avoid 
 undue waste. 
 
 MAPPING OUT EEGIONS 
 
 It would be premature to attempt now to map out 
 regions. This is a matter that must be dealt with by 
 the government and by traffic and other experts. But 
 an illustration will serve to promote discussion: 
 
 In the territory east of the Mississippi River and 
 north of the Ohio River, the east and west traffic be- 
 tween New York and New England on the east and 
 Chicago on the west would be the determining factor 
 in fixing the boundaries of regions. The natural 
 grouping would center around the New York Central 
 and the Pennsylvania systems. With the former 
 would be united the Delaware & Hudson, the Erie and 
 all the New England lines (unless it were deemed ad- 
 visable to have the two lines in competition through to 
 Boston, in which case the New York Central could 
 group its lines around the Boston & Albany and the 
 Pennsylvania around the New Haven). With the 
 Pennsylvania would be grouped all the roads in New 
 Jersey and Pennsylvania, the Baltimore & Ohio, and 
 perhaps the Chesapeake & Ohio. Thus would be 
 created two great systems competing for the business 
 between Chicago and the East and able to adopt a 
 multitude of economies, now impossible, in the use of 
 their numerous lines. South of Washington groups 
 would naturally trend more nearly north and south; 
 and the Southern and the Louisville & Nashville would
 
 208 PAPERS AND ADDRESSES 
 
 probably be the backbones of two competing groups, 
 while the Illinois Central and the Missouri Pacific 
 would be the natural foundation on which to build 
 two groups competing for the business from Chicago 
 to the South. 
 
 A proper division of the entire country would prob- 
 ably result in about fifteen or twenty groups. 
 
 2. PLANS FOR GUARANTEEING INCOME 
 
 A number of methods have been proposed by which 
 a minimum net return may be guaranteed by the gov- 
 ernment. One of these methods seeks by Congressional 
 edict to define what is a " reasonable rate, ' ' and to de- 
 termine what shall be the net return upon investments 
 in railroad property, while another would arrive at 
 the same result by requiring that rates be fixed at a 
 figure which will produce a minimum net return. Un- 
 der still another plan it is suggested that out of gross 
 earnings there be first set aside fixed proportions to be 
 applied preferentially to the payment of interest and 
 dividends on new securities. All such plans, when 
 analyzed, will be found to be predicated upon an as- 
 sumption by the government of an obligation, either 
 directly or indirectly, to fix a rate schedule and to deal 
 with wages and other costs in such manner that there 
 shall be net income of a certain amount applicable to 
 the payment of dividends and interest upon the securi- 
 ties of the companies. In other words, all of such 
 suggestions involve a government guarantee of an in- 
 come upon property invested in railroads. If I am 
 right in this, it results that, whichever plan is adopted, 
 there must be some method for appraising the property 
 investment as a basis for estimating the income which 
 is to be guaranteed upon it. That being so, it seems
 
 OUR RAILROADS 209 
 
 to me that the direct guarantee of the income upon 
 the securities of the regional companies will be pre- 
 ferable. In the first place, it is simpler and will be bet- 
 ter understood. In the second place, it will avoid the 
 uncertainties attaching to action by Congress or the 
 Interstate Commerce Commission in relation to rates 
 and the complicated financial structures suggested by 
 some of the plans which contemplate intricate account- 
 ings not easily understood. The indirect form of gov- 
 ernment guarantee under such plans would undoubt- 
 edly make railroad securities less marketable than if 
 the guarantee were direct, and to that extent the new 
 companies would fail to receive the full advantage 
 which would undoubtedly accrue from a direct guar- 
 antee. The credit of railroad stock and bonds with a 
 direct government guarantee would undoubtedly be as 
 high as that of government bonds themselves. The 
 rate of income guaranteed should be fixed so that both 
 stock and bonds would realize one hundred cents on 
 the dollar, thus avoiding destructive discounts, com- 
 missions, and expenses which have for many years 
 grievously burdened the less prosperous railroads. 
 
 It is quite possible that in working out a plan like 
 that proposed it might be necessary for the protection 
 of the government to put it in a position where by 
 foreclosure of a lien or perhaps by a recapture clause, 
 it may obtain possession of a regional railroad for 
 purposes of reorganization, or even for government 
 operation. The connection of the government with 
 the new systems would be so close that such a provision 
 might have to be made in order to provide for un- 
 expected contingencies. 
 
 It remains to comment upon the suggestion which 
 has been made in some quarters that the government
 
 210 PAPERS AND ADDRESSES 
 
 turn back the railroads to the old corporations with- 
 out provision for enforced elimination of uneconomical 
 competition, unification of management, joint use of 
 terminal and other facilities, or similar expedients 
 looking to economy and efficiency. It is not probable 
 that the people of this country, having witnessed some 
 of the advantages of the unification made necessary by 
 the war, and having seen the solution of the railroad 
 problem advanced many years as a result of the in- 
 terruption of the management of the companies by 
 private corporations, will now tolerate a restoration of 
 the old conditions. Certainly they will not concede to 
 the owners of railroads a fixed return upon their 
 property investments if they are to continue under 
 the old corporate control, particularly if the public is 
 not at the same time to be given some assurance con- 
 cerning rates, and the wage question is not to be satis- 
 factorily adjusted. Labor will see as much reason for 
 obtaining a fixed return to it as to capital, and the 
 traveling public and shippers will be unwilling to have 
 rates left for future determination unless standardiza- 
 tion and economies through consolidation give promise 
 of economical and efficient service. Any plan for gov- 
 ernment guarantee of income on property investment 
 must come much nearer government ownership than 
 that which contemplates the retention of the roads by 
 the old corporations, and especially because, as pointed 
 out above, the government must in return for any 
 guarantee it makes be put in a position where, in case 
 the new system breaks down, it can itself take posses- 
 sion of the roads and try some other form of opera- 
 tion, as, for instance, through leases to operating com- 
 panies.
 
 OUR RAILROADS 211 
 
 3. THE BASIS ON WHICH KOADS ABE TO BE ABSOBBED 
 
 BY REGIONAL COBPOEATIONS AND THE METHOD 
 
 OF DETEBMINING SUCH BASIS 
 
 If the government is to guarantee a return on the 
 securities issued by the regional corporations, it must, 
 of course, be assured that they represent the value of 
 the roads consolidated and that under normal condi- 
 tions the estimated income of the regional group will 
 be sufficient to reimburse it. Upon such an estimate 
 the basis of exchange of securities must be determined. 
 Security holders will not, of course, in all cases be 
 satisfied with the terms proposed by the government. 
 But the fact that their interests may be acquired under 
 the right of eminent domain, coupled with the advan- 
 tage attaching to a government guarantee, will no 
 doubt induce nine-tenths of them voluntarily to make 
 the exchange proposed by the government, especially 
 if it is recommended by committees of security holders, 
 which will probably be afforded the opportunity to con- 
 duct negotiations with the government. 
 
 In the case of minority interests refusing to accept 
 the terms offered, Congress can constitutionally pro- 
 vide that the regional corporation (or perhaps the gov- 
 ernment) may acquire the physical property of the 
 roads; or it might suffice to condemn the stock as a 
 means of gaining complete control. 
 
 The delay and expense of condemnation proceedings 
 are, of course, to be regretted, but it would be an in- 
 cident to any plan of consolidated ownership, whether 
 by the government or by a regional corporation. Fur- 
 thermore, any delay in determining the compensation 
 to be paid to the individual or corporate owners would 
 not postpone the consummation of the plan, since it 
 would be legally possible to provide that title should
 
 212 PAPERS AND ADDRESSES 
 
 vest in the government or the consolidated corporation 
 upon the commencement of the proceedings, and thus 
 possession and operation by the regional corporation 
 could be assumed at once, while provision could also 
 be made so that the standard return or the net income 
 should continue to be applied to the payment of interest 
 and dividends. 
 
 THE CONDEMNATION METHOD 
 
 The simplest method of acquiring the roads would 
 be by condemning all outstanding stocks and bonds 
 and thus securing control of the corporation, since in 
 the case of many of the most important securities an 
 index of value of considerable weight and easily proven 
 is the market prices established during a number of 
 years in public exchanges. Such prices would not, of 
 course, be conclusive; indeed, no single circumstance 
 would be decisive, and it would be open to an owner of 
 securities to show that quoted prices did not represent 
 real value, that the price would be enhanced by a 
 larger volume of transactions, that the quotations were 
 depressed below the fair value bv the fact that the 
 government was condemning and that prospective and 
 speculative value was not fairly reflected in the market. 
 Perhaps even physical valuation might be resorted to, 
 aud certainly the income-producing power of the com- 
 pany under normal conditions when not affected by the 
 war, by recent reorganization, or by some other temp- 
 orary or adventitious circumstances, would be pert- 
 inent. At best, the subject of fixing values is a com- 
 plex one and generally, as in commercial bargaining, 
 appraisers arrive at results by " splitting differences." 
 
 It is by no means certain that bonds could be ac- 
 quired under the right of eminent domain, and it would 
 not be wise to resort to that process if it threatened
 
 OUR RAILROADS 213 
 
 seriously to affect the stability of market values. It is 
 not improbable, however, that the prospect of receiving 
 new securities, guaranteed by the government, would 
 favorably affect the market for many bonds. 
 
 4. GOVERNMENT GUARANTEE AND PROFIT-SHARING 
 
 The impairment of the credit of the railroads before 
 the war not only depressed the market value of rail- 
 road securities, but it compelled railroads to pay exces- 
 sive rates of interest. The experience of the roads 
 with the Bureau of Railroad Administration has not 
 tended to improve the situation. The long delay in 
 negotiating the contract, the reluctance in some cases 
 in fixing the standard return to recognize, in the case 
 of roads recently in difficulties, the existence of condi- 
 tions making the three years' average an insufficient 
 test, and the delay in paying over even 90 per cent, of 
 the guaranteed income, have contributed to affect the 
 credit of the roads. Some of the more prosperous 
 roads have suffered less than those less favored, but it 
 may with truth be said that the financial credit of the 
 roads of the country as a whole has been so affected 
 as to make them unable permanently to discharge their 
 public functions as efficiently as the people have a 
 right to expect. If a change for the better is not possi- 
 ble within a few years the country will be driven sooner 
 or later to government ownership. If the advantages 
 of private operation can be retained under such gov- 
 ernment regulation as will insure the adequate accom- 
 modation of the public, it would be in the public interest 
 that that result should be striven for, but it cannot be 
 obtained unless the railroads receive from the govern- 
 ment a guarantee of a fair return on their property. 
 Such a guarantee would have such a moral effect that 
 the roads could immediately procure, at reasonable
 
 214 . PAPERS AND ADDRESSES 
 
 rates of interest, all needed funds for improvement, 
 extensions, betterments and equipment. 
 
 If security were required to insure the government 
 against loss on account of its guarantee, it could be 
 secured by suitable provision in an open mortgage 
 securing the bonds so that on foreclosure the govern- 
 ment could either purchase the road and operate it, or 
 lease it to an operating company. It would be possible 
 to provide for an unlimited amount of guaranteed 
 bonds to be sold at not less than par, all ranking pari 
 passu and equally secured by such a mortgage. 
 
 The government guarantee on the stock should in- 
 sure a fixed return to be determined by the estimated 
 minimum net earnings of the company in a region, all 
 net earnings up to 6 per cent, to go to the company and 
 anything in excess of that amount to be equally divided 
 between the stockholders and the government. Prob- 
 ably a guaranteed dividend of 4 per cent, would be 
 practicable. It might be necessary to provide, how- 
 ever, that if after some fixed period changed condi- 
 tions required it, there should be a readjustment, ef- 
 fective for another fixed period, in respect of the dis- 
 tribution of any earnings in excess of the guaranteed 
 4 per cent. Such an arrangement as this would be 
 justified by the advantage resulting to the public from 
 the restoration of confidence in the railroads, the elim- 
 ination of wasteful construction and operation, and the 
 prospective return to the government from the profits 
 of the enterprise, particularly since the government 
 could be safeguarded in case of a failure to earn an 
 amount equal to the guaranteed interest, by provisions 
 under which, in case of such default, the government 
 could possess itself of the property.
 
 OUR RAILROADS 215 
 
 5. WAGES AND RATES 
 
 The plan would tend to solve both the labor and the 
 rate problem. Rates and wages are the two factors on 
 which more than any other the prosperity of railroads 
 depends. Rates would be fixed by some government 
 agency which would be interested to see that they were 
 fair, since the guarantee of the government and the 
 profit-sharing features make it a partner in the enter- 
 prise. If the demands of labor should disturb the 
 equilibrium of the conflicting interests the government 
 would be confronted with the alternative of (1) making 
 good a part of its guarantee and losing its share over 
 the guaranteed amount of earnings, or (2) authorizing 
 an increase in rates to meet the increased wage scale, 
 or (3) using its power under appropriate legislation 
 through suitable commissions to regulate and stand- 
 ardize wage scales. In other words, the proposed plan 
 would tend to tie up wages and rates in such manner 
 that they would be interdependent.
 
 RECALL OF DECISIONS
 
 RECALL OF DECISIONS 1 
 
 A MODERN PHASE OF IMPATIENCE OF 
 CONSTITUTIONAL RESTRAINTS 
 
 The function of the judiciary branch of the govern- 
 ment is to try and decide controversies according to 
 law and justice, without being swayed by considera- 
 tions of governmental or political expediency, or by 
 what judges suppose to be the temporary desires of a 
 majority of the electorate. In the distribution by the 
 Federal Constitution of the powers of government, the 
 judicial department was made free of checks upon its 
 powers like those imposed upon the executive and legis- 
 lative departments. After the judges had been ap- 
 pointed by the President and confirmed by the Senate, 
 and their salaries had been fixed by Congress, they 
 were to hold office during good behavior and their 
 salaries were not to be reduced during their terms of 
 office. Hamilton explains the reason for these pro- 
 visions as follows : 
 
 "The complete independence of the courts of justice is 
 peculiarly essential in a limited constitution. By a limited 
 constitution I understand one which contains certain specified 
 exceptions to the legislative authority; such, for instance, 
 as that which shall pass no bills of attainder, no ex post facto 
 laws, and the like. Limitations of this kind can be preserved 
 in practice no other way than through the medium of courts of 
 justice, whose duty it must be to declare all acts contrary to 
 the manifest tenor of the Constitution, void. Without this, 
 all the reservations of particular rights or privileges will 
 amount to nothing." 
 
 i Paper read at the annual meeting of the New York State Bar Asso- 
 ciation, held in Utica, N. Y., January 24-25, 1913. 
 
 219
 
 220 PAPERS AND ADDRESSES 
 
 While the judges are, therefore, made essentially in- 
 dependent, it is impossible for them, for any long 
 period, to deprive either of the other branches of the 
 government of their constitutional powers, or to rob 
 the people themselves of any of the rights which are 
 essential to their enjoyment of civil liberty, because 
 there is not placed in their hands any machinery by 
 which judicial aggressions can be made effective. 
 Their judgments can only be executed through civil 
 officers like sheriffs and marshals, and these become 
 quite powerless if they are opposed by the other de- 
 partments of the government or by the people them- 
 selves. Furthermore, the political effect of a judg- 
 ment involving the most important constitutional ques- 
 tion may be entirely nullified, or it may be rendered, 
 by force of public opinion, largely academic. As de 
 Tocqueville said, the judges defend "the conservative 
 spirit of stability against the fickleness of the democ- 
 racy. Their power is enormous, but it is the power of 
 public opinion. They are all-powerful as long as the 
 people respect the law; but they would be impotent 
 against popular neglect or contempt of the law. ' ' And 
 Hamilton says of the judiciary, that "it may truly be 
 said to have neither force nor will, but merely judg- 
 ment ; and must ultimately depend upon the aid of the 
 executive arm even for the efficacy of its judgments." 
 
 But, however impotent the courts are to seize polit- 
 ical control of the government, their power, when sup- 
 ported by public opinion, to impose upon the people the 
 restraints provided for in the Constitution, is more 
 majestic than that possessed by any other judicial body 
 in the history of the world ; and it is this power, which 
 more than any other, has at critical junctures protected 
 us against excesses of partisan zeal, has given to our 
 government the stability which has enabled it to sur-
 
 RECALL OF DECISIONS 221 
 
 vive and has enabled us to enjoy the inestimable ben- 
 efits of a representative form of government which 
 have been denied to other nations having written con- 
 stitutions no less perfect in theory than our own. 
 President Hadley has very aptly said : 
 
 "Legislature and executive are means given to allow the 
 people to do what they please, under certain constitutional 
 forms. The judiciary is a means given to prevent the people 
 from doing what they please. How can we explain the fact 
 that these judicial restrictions are of the very essence of 
 freedom? I answer because the law of the United States, as 
 defined and administered by its courts, represents not only 
 restraint, but seZ/-restraint ; and a kind of self-restraint which 
 any nation must be prepared to exercise if it hopes perma- 
 nently to enjoy the advantages of political freedom." 
 
 De Tocqueville asserts that without its restraints the 
 " Constitution would be a dead letter. " And Webster 
 says "that the maintenance of the judicial power is 
 essential and indispensable to the very being of this 
 government. The Constitution without it would be no 
 constitution; the government no government. . . . 
 The judicial power is the protecting power of the whole 
 government. Its position is upon the outer wall." 
 
 The working out of the plan for the division of 
 powers between the executive and the legislative de- 
 partments of the national government has not been 
 precisely what the framers of the Constitution antici- 
 pated. It is doubtful whether these departments could 
 have conducted the business of the government with- 
 out destructive friction if political parties had not at 
 an early day become the convenient medium for 
 promptly and effectively organizing public sentiment 
 as a force to compel the reasonable adjustment of 
 conflicting views. The judicial department, however,
 
 222 PAPERS AND ADDRESSES 
 
 has to a large extent fulfilled in practice the function 
 which was in theory vested in it by the Constitution ; 
 and the same may be said with general accuracy of the 
 judiciary of the several states as constituted under 
 the state constitutions. But now it is said that some 
 of the courts have become slow to respond to the throb 
 of popular impulse, or, when called upon to interpret 
 constitutions, to make their judgments conform to 
 modern ideas of social and industrial justice, or to 
 adopt a philosophy abreast of the times. We are told 
 in the heat of a presidential campaign, that funda- 
 mental questions which have always been regarded as 
 judicial questions, should no longer be finally decided 
 by the courts but, on appeal, by a vote of a temporary 
 majority of the electorate. It is startling to the pres- 
 ent generation that such an attack upon the power of 
 the judiciary should be made by a conspicuous states- 
 man as part of the propaganda of a political campaign ; 
 but a brief review of our political history will show 
 that the judiciary has often at critical junctures of 
 our history been an unpopular branch of our govern- 
 ment, and that it has not infrequently been made the 
 object of political attacks no less determined than the 
 present one. 
 
 The decision of the Supreme Court, in 1793, in 
 Chisolm v. Georgia, holding that a state could be 
 sued by a citizen of another state, caused a ' ' shock of 
 surprise' ' and widespread opposition throughout the 
 country, which was intensified by the supposed ar- 
 rogance of the federal judiciary, springing from their 
 possession of powers under the Constitution which 
 represented within certain spheres of government a 
 sovereignty superior to the states. The ideas voiced 
 by Mr. Jefferson, based upon the expressions of the 
 leaders of the French Revolution as to abstract justice,
 
 RECALL OF DECISIONS 223 
 
 political freedom and the equality of men, were remark- 
 ably like those expressed by certain political leaders of 
 to-day, when they attempt for party purposes to give 
 a definition to modern progressivism, and they cre- 
 ated a widespread unrest, particularly in relation to 
 the supposed aggressions of the courts. On January 
 2, 1801, in declining the offer of President Adams to 
 appoint him again to the office of Chief Justice of the 
 United States, Mr. Jay wrote to President Adams : 
 
 "I left the bench perfectly convinced that under a system 
 so defective it (the judicial department) would not obtain 
 the energy, weight and dignity which are essential to its 
 affording due support to the national government; nor ac- 
 quire the public confidence and respect which, as the last 
 resort of the justice of the nation, it should possess. Hence I 
 am induced to doubt both the propriety and the expediency 
 of my returning to the bench under the present system; 
 especially as it would give some countenance to the neglect 
 and indifference with which the opinions and remonstrances 
 of the judges, on this important subject, have been treated." 
 
 For many years a majority of the people of the 
 country, represented by the Republican party, refused 
 to accept the decision in Marbury v. Madison as a rule 
 of political action. Mr. Jefferson in 1819 referred to 
 the movement which resulted in his election as "the 
 Revolution of 1800," accomplished by the suffrage of 
 the people, and complained that while the nation had 
 thus "declared its will by dismissing functionaries of 
 one principle and holding those of another in the two 
 branches, executive and legislative . . . the Constitu- 
 tion had deprived them of their control" over the 
 judiciary department. He referred to the power 
 claimed for the judges to decide constitutional ques- 
 tions as "a very dangerous doctrine indeed, and one
 
 224 PAPERS AND ADDRESSES 
 
 which would place us under the despotism of an oli- 
 garchy." In 1821 he said "The judiciary branch is the 
 instrument which, working like gravity without inter- 
 mission, is to press us at last into one consolidated 
 mass. ' ' And again, ' * It is a misnomer to call a govern- 
 ment republican in which a branch, the Supreme Court, 
 is independent of the nation. . . ." He denounced in 
 no less emphatic terms the manner in which Chief Jus- 
 tice Marshall presided at the trial of Aaron Burr and 
 said that it would ' ' produce an amendment to the Con- 
 stitution which, keeping the judges independent of the 
 executive, will not leave them so of the nation. ' ' 
 
 The decision in the case of the United States v. Mc- 
 Culloch excited no less opposition than that in Marbury 
 v. Madison. In Kentucky the feeling ran so high that 
 an attempt almost succeeded to remove from office a 
 judge of the State Supreme Court because he had, on 
 the authority of the decision in the McCulloch case, 
 declared a state replevin act unconstitutional. For 
 similar reasons the legislature of Kentucky created a 
 second State Supreme Court; and it is not too much 
 to say that the whole judicial situation came perilously 
 near creating a civil war in Kentucky. The manner 
 in which President Jackson, having an overwhelming 
 public sentiment behind him, succeeded in rendering 
 ineffective the judgment in the McCulloch case is too 
 well known to need extended reference. In vetoing the 
 bill for the extension of the charter of the bank, this 
 most popular of Presidents said that "the opinion of 
 the judges has no more authority over Congress than 
 the opinion of Congress has over the judges, and on 
 that point the President is independent of both." 
 Later came the Bred Scott decision which offended a 
 great portion of the American people, and the Legal 
 Tender cases, which excited widespread criticism ; and
 
 RECALL OF DECISIONS 225 
 
 in later years we all remember the intense feeling 
 aroused by the decisions in the Income Tax cases, and 
 in the Debs case, which involved the power of a court 
 to enforce its own decrees by punishing recusant par- 
 ties for contempt, and by the exercise of the power 
 to issue writs of injunction in labor disputes. 
 
 These are a few instances, of which there are many 
 similar ones in the judicial history of our country, 
 which serve to illustrate how at certain crises decisions 
 of the courts have aroused a feeling of antagonism 
 which has been often more widespread, more intense, 
 and more insistent, than that which now demands the 
 recall of decisions; and it seems fairly reasonable to 
 predict that if the principle of the recall should now 
 be conceded, even in a limited form, every new political, 
 industrial, economic or social question agitating the 
 people in the future, would be the occasion for new 
 applications of the principle until finally we should 
 have the courts the mere timorous conduits of what 
 they might guess to be the opinion of the majority of 
 the electorate. 
 
 It is not probable that our courts will ever, for long 
 periods, be free from criticism. Whenever the people 
 seek to eradicate abuses in the administration of the 
 government or when they aspire to elevate their social 
 or industrial or political condition, they become impa- 
 tient of any restraint imposed upon their zeal by the 
 Constitution; and it is upon the courts, whose duty it 
 is to impose the restraint, that their discontent is 
 naturally visited. The demand for the recall of de- 
 cisions is the result of impatience of this kind because 
 the courts have not found some way to overcome the 
 constitutional obstacles to securing a complete and im- 
 mediate readjustment by legislation of social and in- 
 dustrial relations, which it is thought will correct some
 
 226 PAPERS AND ADDRESSES 
 
 intolerable conditions which have arisen in the rapid 
 development of American civilization in the last two 
 decades. The recall was at first advocated as a means 
 of reversing judgments rendered by judges who were 
 "steeped in some outworn political or social philosophy 
 and totally misapprehend their relations to the people 
 and to the public needs." x It was to be used in rate 
 cases and trust cases, because these are problems "in 
 administrative statesmanship," and also as a means 
 of authoritatively reconciling "conflicting decisions of 
 the courts," such, for instance, as the decisions in the 
 Income Tax cases. Although it was at first stated that 
 it was not intended to apply the recall to "anything 
 in connection with the Supreme Court of the United 
 States or with the Federal Constitution," 2 and the 
 arguments in its support related principally to state 
 court decisions, the author of the doctrine now advo- 
 cates, without qualification, an amendment to the Fed- 
 eral Constitution, proposed by Senator Bristow, under 
 which a decision of the Federal Supreme Court, hold- 
 ing an act of Congress unconstitutional, may be re- 
 called at a regular Congressional election by a majority 
 vote "in a majority of Congressional districts, and also 
 in a majority of the states." 
 
 Many of the arguments in favor of the recall of 
 decisions have been partisan and indiscriminating, and 
 have represented an inarticulated agitation against 
 the courts, largely based upon defects in the adminis- 
 tration of justice from which undue delay, excessive 
 expense and vexatious technicalities have resulted. 
 We all agree that these can and ought to be corrected, 
 but the recall would be neither an appropriate nor an 
 effective remedy for their correction. The serious and 
 
 i Editorial in The Outlook on "Judges and Progress," by Ex-Presi- 
 dent Roosevelt. 
 
 2 Mr. Roosevelt's Carnegie Hall address.
 
 RECALL OF DECISIONS 227 
 
 responsible arguments for the recall of decisions, how- 
 ever, have been based almost exclusively upon decisions 
 of state courts, and principally those of the New York 
 Court of Appeals, in a class of cases in which certain 
 legislative acts designed to promote so-called social or 
 industrial justice have been declared not to constitute a 
 proper exercise of the police power, but to be a viola- 
 tion of the state or Federal Constitution, because they 
 would deprive persons of liberty or property without 
 due process of law. The advocates of the doctrine are, 
 however, pushed, as Mr. Roosevelt and Senator Bristow 
 have been, to favor the doctrine as a means of securing 
 the review by popular vote of all decisions of both state 
 and federal courts upon constitutional questions. 
 And if the principle of the recall is once conceded, there 
 is no reason, either theoretically or practically, why it 
 should not be extended to all judicial questions where 
 the social, industrial or political interests of the people 
 are involved. 
 
 Mr. Roosevelt's remarkably able arguments on the 
 recall have been elaborated in a book entitled "Major- 
 ity Rule and the Judiciary," by Mr. William L. Ran- 
 som, to which, in July last, Mr. Roosevelt wrote a com- 
 mendatory introduction. Professor William Draper 
 Lewis, Dean of the Law School of the University of 
 Pennsylvania, has also given the weight of his name 
 and his position to the new doctrine. All of these gen- 
 tlemen have treated the subject philosophically; and 
 their major premise is based upon a conception of the 
 scope and meaning of the police power which they as- 
 sume to be justified by a succinct reference to that 
 power by Mr. Justice Holmes in the Oklahoma Bank 
 case. 1 But they have all failed to observe that 
 Justice Holmes's allusion to the subject is didactic 
 
 i Nobel State Bank v. Haskell, 219 U. S., 104-111.
 
 228 PAPERS AND ADDRESSES 
 
 rather than analytic, and that he only mentions in a 
 general way certain characteristics of the police power, 
 without attempting to give a definition to be generally 
 applied. In their quotation from his opinion, they 
 have always omitted, as immaterial to the discussion, 
 certain parts which seem to me to be highly important, 
 if his brief reference to the power is to be regarded as 
 a definition. In the following extract from the opinion, 
 these omitted portions are italicized: 
 
 "It may be said in a general way that the police power 
 extends to all the great public needs. ... It may be put 
 forth in aid of what is sanctioned by usage or held by the 
 prevailing morality or strong and preponderant opinion to 
 be greatly and immediately necessary to the public welfare. 
 . . . With regard to the police power, as elsewhere in the law, 
 lines are pricked out by the gradual approach and contact of 
 decisions on the opposing sides." 
 
 It is a fundamental error to suppose that the ' ' strong 
 and preponderant opinion," referred to by Justice 
 Holmes, would be one expressed in relation to a par- 
 ticular case by a majority of the electorate. " Strong 
 and preponderant opinion" which determines the 
 necessity for the assertion of the police power, is based 
 upon usage, prevailing standards of morality and ex- 
 pediency, and becomes by gradual process fixed in the 
 community with such a degree of permanency that it is 
 not dislodged except by a slow process, and in the de- 
 velopment of national character and the social, indus- 
 trial or political needs of the entire people. Such 
 "strong and preponderant opinion" could not be as- 
 certained to exist by the vote of a majority of the 
 electorate composed of 25 per cent, of the entire popula- 
 tion ; that is, by one-eighth of the entire people. It is 
 rather an opinion concerning existing conditions in our
 
 RECALL OF DECISIONS 229 
 
 social, industrial and political life which, in most cases, 
 is, without such a vote, readily recognizable; and 
 where in border cases it is not so manifest, the rule 
 for the application of the police power must be, as 
 Justice Holmes says, "pricked out by the gradual ap- 
 proach and contact of decisions on the opposing sides." 
 It is, of course, because in some of the border cases 
 it is supposed that some of the courts have "lagged 
 behind," that the recall of decisions is suggested as a 
 means of accelerating their philosophical reflections. 
 If some courts (it is not charged that there are many) 
 have thus failed to meet the expectations of advanced 
 thought upon the subject, they should not be con- 
 demned wholesale, for they are but human agencies 
 from which perfection is not to be expected; and 
 it must not be forgotten that from the same imperfec- 
 tion, if the recall were adopted, the danger would be 
 that the courts, practically freed from the restraint of 
 conservatism, would generally "prick out" the appli- 
 cation of the police power on the wrong side of the 
 border. It all comes to this : Until there pervades the 
 community, not only a strong and a preponderant, but 
 also a fundamental and a permanent, opinion concern- 
 ing the application of the police power to a particular 
 question, the whole matter is essentially one for judi- 
 cial interpretation and not one which justifies the inter- 
 ruption of the reign of constitutional law by reference 
 in particular cases to the temporary majority of the 
 electorate, aroused, and perhaps misled, by an excess of 
 partisan zeal. 
 
 There was significance in Mr. Justice Holmes's quali- 
 fication that he was describing the police power only 
 in "a general way," for the courts have always re- 
 frained from attempting precisely to define the power, 
 lest a generalization should be inadequate to cover con-
 
 230 PAPERS AND ADDRESSES 
 
 crete cases arising in the future. The purposes of the 
 police power are referred to, but its existence in a 
 particular case is left by the courts, as in cases of fraud, 
 to be determined when occasion arises. It is easier to 
 say what it is not, than what it is; but a temporary 
 majority of the electorate would be a very uncertain 
 guide in determining whether an occasion required its 
 exercise. In the Jacobs case, 1 Judge Earl said: "The 
 limit of the power cannot be accurately denned, and the 
 courts have not been able or willing definitely to cir- 
 cumscribe it. ' ' Chief Justice Shaw, in Commonwealth 
 v. Alger, 2 saidi "It is much easier to perceive and 
 realize the existence and sources of the power, than 
 to mark its limitations, or prescribe limits to its 
 exercise." 
 
 A point which has generally been overlooked by 
 those favoring the recall, is that at the outset a court 
 is called upon to decide whether a law sought to be 
 justified as an exercise of the police power, is in fact 
 a health law or a general welfare or other similar law, 
 or whether it is not, under the guise of such a law, 
 passed with some ulterior and sinister purpose, as, for 
 instance, improperly to serve some corporate interests, 
 or to afford a basis for lobbyists or others to levy 
 blackmail on such interests. It was a question of this 
 kind which was determinative of three of the four cases 
 in the New York Court of Appeals, which are discussed 
 below, and which have been repeatedly asserted to be 
 conspicuous instances in which the courts have failed 
 to respond to the prevailing sentiment of the com- 
 munity. 
 
 Both questions which thus arise in relation to the 
 police power are essentially juridical. They involve a 
 
 i 98 New York 99-110. 
 2 7 Cushing 53-84.
 
 EECALL OF DECISIONS 231 
 
 philosophical analysis of each case as it arises, lest, 
 under the guise of a power inherent to sovereignty 
 and rising superior to constitutions and laws, the in- 
 dividual may be deprived of his property, his liberty 
 or his life, without due process, although in form, of 
 law. If, as a result, a social or industrial reform be 
 temporarily retarded, until its necessity has been 
 calmly considered and the machinery for its accom- 
 plishment has been deliberately worked out, not by 
 votes in special cases referred for decision to the 
 people, but under fundamental constitutional law as 
 finally interpreted by the courts, influenced, as they in- 
 evitably will be, by public opinion, that is far better 
 than that a single citizen should be deprived of his life, 
 his liberty or of his property. 
 
 The discussion of this phase of the recall doctrine 
 cannot be made complete without a brief reference to 
 the four New York decisions already referred to. 
 
 In the Tenement House case, 1 one Jacobs was prose- 
 cuted criminally for carrying on the trade of cigar- 
 making in his own home, in violation of the provisions 
 of an act of the legislature. It was sought to sustain 
 this act as one to promote the public health. It ap- 
 peared as a matter of fact, however, that it was not a 
 health measure at all, but that it had been passed by 
 the procurement of the owners of large tobacco fac- 
 tories in the city of New York and Brooklyn, for the 
 purpose of crushing out the competition of persons 
 working in tobacco manufacture in their own homes. 
 The Board of Health of the city of New York officially 
 declared that the act in question was not "a sanitary 
 measure," and further, "that the health of the tene- 
 ment-house population is not jeopardized by the manu- 
 facture of cigars in those houses." Thus, the main 
 
 i The Matter of Jacobs, 98 New York 98.
 
 232 PAPERS AND ADDRESSES 
 
 question involved in this case was whether the act by 
 which it was attempted to imprison Jacobs was a meas- 
 ure improperly procured for an ulterior purpose by 
 the large vested interests. The court held, and was 
 sustained by the Supreme Court of the United States 
 in the holding, that the measure was not a health 
 measure at all and that there was, therefore, no occa- 
 sion, in the general interest, for suspending the safe- 
 guards of the Constitution by depriving Jacobs of his 
 liberty. Judge Earl, one of our greatest judges, 
 speaking for the court, said : 
 
 "It is plain that this is not a health law, and that it has 
 no relation whatever to the public health. Under the guise 
 of promoting the public health the legislature might as well 
 have banished cigarmaking from all the cities of the state, 
 or confined it to a single city or town, or have placed under 
 a similar ban the trade of a baker, of a tailor, or a shoemaker, 
 of a woodcarver, or of any other of the innocuous trades car- 
 ried on by artisans in their homes. . . . 
 
 "When a health law is challenged in the courts as uncon- 
 stitutional on the ground that it arbitrarily interferes with 
 personal liberty and private property without due process of 
 law, the courts must be able to see that it has at least in fact 
 some relation to the public health, that the public health is 
 the end actually aimed at, and that it is appropriate and 
 adapted to that end. This we have not been able to see in 
 this law, and we must, therefore, pronounce it unconstitu- 
 tional and void." 
 
 If an effort had been made to recall this decision, it 
 is not difficult to see how the matter would have been 
 presented to the people, for to the chief advocate of the 
 recall of decisions the principal question in the case 
 was whether a tobacco worker should or should not be 
 permitted to pursue his vocation in "one foul room in 
 which two large families, one with a boarder, live and
 
 RECALL OF DECISIONS 233 
 
 work day and night, the tobacco they manufacture be- 
 ing surrounded with every form of filth." 
 
 In the Knisley case, 1 there was no question of consti- 
 tutional law at all. The court merely construed the 
 Employers' Liability Act, and determined that under 
 its provisions an employee injured in a machine which 
 had unguarded cogwheels could not recover when the 
 danger was visible and plainly known to her. It did 
 not hold that the act was unconstitutional, but merely 
 followed the decisions of the courts of Massachusetts 
 and England, interpreting similar statutes. The stat- 
 ute could, of course, have been immediately changed by 
 the legislature. The case neither illustrates nor sup- 
 ports the argument for a recall of decisions. 
 
 In the Williams case, 2 the court declared unconsti- 
 tutional a statute which prevented a woman from work- 
 ing at any trade in a factory after nine o'clock at night. 
 The decision was based upon the fact that there was 
 nothing to show that mere working at night had any 
 relation to the healthfulness of the employment. The 
 court held that the statute was an undue interference 
 with an adult woman who, with the other women in the 
 same employment, insisted upon her constitutional 
 right to earn her living by skilled labor in the book- 
 binding business, even though the requirements of the 
 business necessitated the doing of the work at night 
 three or four nights during the week. If she had not 
 been permitted to work, she would have been driven 
 out of her trade, and the work would have had to be 
 done by men, because it was a matter of indifference to 
 the employers which sex was employed. 
 
 The only case affording even a colorable ground for 
 the claim that the courts of this state have "lagged 
 
 i 148 New York 372. 
 2 189 New York 131.
 
 234 PAPERS AND ADDRESSES 
 
 behind" the enlightened thought of the day is the Ives 
 case, 1 in which it was decided by the Court of Appeals 
 that the Workmen's Compensation Act was uncon- 
 stitutional. That act provided that an employer in 
 certain occupations regarded as dangerous should pay 
 damages to an employee who was injured, even if the 
 employer had not been guilty of any negligence or 
 failed in any way to discharge his entire duty to the 
 employee. The court held that the legislature had the 
 power to abolish the fellow-servant rule, the rule as to 
 risks assumed in a dangerous occupation, and the rule 
 as to contributory negligence; but that, in imposing a 
 liability upon an employer, when he was entirely free 
 from fault, property was taken from him without due 
 process of law. The New York act went further than 
 any other similar act passed in this country except, 
 perhaps, that passed by the State of Washington, and 
 sought by a single drastic provision to abolish every 
 rule of law relating to the subject which had existed for 
 hundreds of years. While there may be a doubt as to 
 whether the decision in the Ives case was clearly right, 
 there certainly was some reasonable ground for saying 
 that to mulct an employer for damages for injuries 
 which he has not directly or indirectly caused is not 
 consonant with abstract notions of justice, with rules 
 of law, or with the Golden Rule. The court in its 
 opinion did not give the slightest indication that its 
 conclusion was influenced by any "outworn philos- 
 ophy" or by anything but a desire to cooperate, so far 
 as the Constitution would permit, in the humane and 
 disinterested efforts of the citizens who procured the 
 passage of the Workmen's Compensation Act. 
 
 There has, therefore, been no real grievance in this 
 state, based upon these four decisions. But even if 
 
 i 201 New York 271.
 
 EECALL OF DECISIONS 235 
 
 there had been, there is no sufficient reason why it may 
 not be dealt with by an amendment of the Constitution 
 after mature deliberation, free from the turmoil of 
 political contention. If there is a fault, it is funda- 
 mental; and it is just such matters that should be 
 regulated by constitutional provision. It is objected 
 that the process for the amendment of the Constitution 
 is slow. That is indeed fortunate. Never before was 
 deliberation more necessary; for the proper adjust- 
 ment of our governmental machinery to meet the needs 
 of the social and industrial development is a problem 
 of unusual difficulty. But to decide by a bare majority 
 of the electorate individual cases where the assertion 
 of the police power conflicts with the claim of the in- 
 dividual that his liberty or his property shall not be 
 put in jeopardy, would create the utmost confusion in 
 our system of jurisprudence. The voters would pay 
 little attention to anything except the question whether, 
 in the particular case referred to them, they would 
 prefer for some reason, however prejudiced or partisan 
 or whimsical it might be, that the decision should not 
 stand. Such a preference would inevitably be influ- 
 enced in a short political campaign by such ad captan- 
 dum arguments as partisan zeal might suggest; and 
 the vision of a most enlightened elector as to the ulti- 
 mate effect of the general adoption of the recall as a 
 principle of government, might well be obscured by 
 circumstances in a particular case appealing to his 
 sympathy or to his prejudices. It would be too much 
 to expect that the people could, in the short time avail- 
 able in each recall campaign, be adequately informed 
 as to the facts in the record before the court, showing 
 that the statute under consideration was not in good 
 faith a health measure or a welfare measure, or as to 
 the broader philosophical considerations which had led
 
 236 PAPERS AND ADDRESSES 
 
 the court to decide that the act under consideration was 
 not so necessary to the social and industrial develop- 
 ment of the people as to justify the setting aside of the 
 constitutional guarantees of life, liberty or property. 
 
 It is said that no one can draw constitutional amend- 
 ments empowering the courts adequately to deal with 
 cases of social and industrial injustice, which will not 
 also be so comprehensive as to include cases to which 
 they are not intended to apply. Professor Lewis 
 argues, for instance, that a general amendment to sanc- 
 tion a particular compensation act or a particular act 
 regulating the hours of labor, would permit the enact- 
 ment of any compensation act or any act regulating the 
 hours of labor; and that the courts would be com- 
 pelled to declare the act constitutional, however un- 
 wise or radical its provisions. We must, indeed, admit 
 that there is a real difficulty in framing a constitutional 
 definition of the police power which could be intelli- 
 gently applied to any future situation; but to argue 
 that, if it was attempted, the legislature would be too 
 radical in the exercise of the power thus denned and, 
 therefore, that it is safer to submit special cases to the 
 people themselves on short notice, is to ignore the fact 
 that it would never be difficult to make the legislature 
 promptly respond to the demands of the people in the 
 improbable event that it showed tendencies which were 
 too radical. It is, of course, true that the legislature, 
 knowing that the constitutionality of its acts is to be 
 examined by the courts in a preliminary and incon- 
 clusive manner only, would go as far in passing laws as 
 it was supposed that a majority of the electorate would 
 approve ; but it is absurd to say that they would habit- 
 ually go further. Whether the people or the legisla- 
 ture are made the final arbiters as to the necessity for 
 the exercise of the police power in given cases, or in re-
 
 RECALL OF DECISIONS 237 
 
 viewing a decision of the court upon any other subject, 
 there would be no practical difference in the results. 
 In either case it would inevitably happen that those 
 restraints upon the power of the people and the legis- 
 lature, which the experience of history has taught to 
 be necessary to secure stability in a popular or repre- 
 sentative government, would be utterly destroyed, and 
 our civil liberties would speedily disappear under the 
 malign influence of "the greatest of all despotisms 
 ... a government of special instances." 
 
 The admitted difficulty of dealing with this subject 
 by constitutional amendment gives especial cogency to 
 the argument already advanced that the peculiarly 
 changeable and elastic nature of the so-called police 
 power makes its extent and character in particular 
 cases essentially a juridical question, wholly inappro- 
 priate to be submitted for solution under any possible 
 constitutional provision either to a representative as- 
 sembly or to the possible tyranny of a bare majority. 
 It is a question upon which especially the law, and not 
 the temporary opinion of the electorate, should be 
 supreme, lest, by gradual process, the wise restraints 
 of our Constitution being removed, we should develop 
 into a pure democracy, and then, perhaps, by the next 
 step into State Socialism. In such a situation, these 
 words of Aristotle seem prophetic: 
 
 "... Another circumstance which leads to the last form 
 of democracy is that all who have any complaints against the 
 officers of state, argue that the judicial power ought to be 
 vested in the commons, and as the commons gladly entertain 
 the indictment, the result is that the authority of all the offi- 
 cers of state is seriously impaired. ... It would seem a just 
 criticism to assert that this kind of democracy is not a. con- 
 stitutional government at all, as constitutional government 
 is impossible without the supremacy of laws."
 
 238 PAPERS AND ADDRESSES 
 
 Let us consider for a moment what a judge would 
 be confronted with in considering the constitutionality 
 of a statute claimed to be valid as an exercise of the 
 police power. Obviously he could not confine himself 
 to the record in the case before him. If the statute 
 should be a health law and the judge had not had occa- 
 sion before to give to the question any definite consid- 
 eration, where would he go for information? It would 
 be of little use to go to the scientists or to the em- 
 ployees, or to the public-health authorities, or to the 
 vested interests which, perhaps, were responsible for 
 the legislation. The surest authorities to consult 
 would be the political leaders, to ascertain how the 
 people would vote at an election to recall the decision 
 of the judge. For the question would be, not even 
 what was the preponderant opinion of the entire com- 
 munity, but rather, in the particular circumstances 
 surrounding the case and in view of the prejudices 
 which would be likely to be aroused through sympathy 
 or otherwise, which side would receive the votes of the 
 larger number of qualified electors. One may imagine 
 the perplexities of a judge sworn to administer his 
 office according to law and the immutable principles of 
 justice, who finds himself compelled to leave his library 
 and consultation room, and engage in the hazardous 
 occupation of political prophecy. And if the case be- 
 fore the court involved the question whether the public 
 welfare required that railroads should give transfers, 
 or whether gas companies could charge more than a 
 rate fixed by statute, or railroad companies more than 
 two cents a mile, or whether, in a case for the con- 
 demnation by a railroad of land, a necessity for the 
 acquisition of the land existed, or any similar question 
 where on the one side were the vested interests and
 
 RECALL OF DECISIONS 239 
 
 on the other the material interests of large numbers of 
 people, his dilemma might be even more serious, for 
 he might find that a conscientious regard for his oath 
 to administer the law as he believed it to be would lead 
 him to decide in favor of the corporate interest, while, 
 with no great skill as a political prophet, he could pre- 
 dict that his decision would be reversed by a referen- 
 dum to the people. 
 
 Whatever the question involved, the vote of the peo- 
 ple would be based upon no clear or enduring principle 
 which could be formulated, nor could the reasons of the 
 voters be ascertained with any degree of certainty, for 
 use as a precedent for the guidance in the future either 
 of constitutional conventions or courts or legislatures, 
 or even of the people themselves. Upon a subsequent 
 referendum upon a similar question, it might well hap- 
 pen, therefore, that, through some factitious circum- 
 stance, political, social, industrial or personal, a dif- 
 ferent vote might be cast; and as a result of repeated 
 ref erendums we would soon have an irreconcilable con- 
 flict of popular decisions, without the possibility of 
 deducing any safe or certain guide for future action. 
 Our system of jurisprudence, so far as it deals with 
 the rights of property, would become merely a mass of 
 special instances from which no generalization could 
 safely be made, while the judiciary itself would no 
 longer find it worth while in their decisions to impose 
 futile constitutional restraints. The courts would be- 
 come an adjunct of the executive and the legislative de- 
 partments of the government, and the property and lib- 
 erty of each individual, and every right and privilege 
 which he had been taught to regard as being sacredly 
 guaranteed to him by the Constitution, would be at 
 the hazard of the tyrannical power of a majority of
 
 240 PAPERS AND ADDRESSES 
 
 the electorate, influenced by its temporary interest, 
 prejudice or sympathy, or by some other equally 
 irrelevant motive. 
 
 The judges of a state court are sworn to discharge 
 their duties according to the best of their " abilities 
 and understanding, agreeably to the Constitution and 
 laws of the United States." Upon a recall of a deci- 
 sion of state judges, they might find themselves con- 
 fronted with a vote of the people of their state finding 
 that their interpretation of the Federal Constitution 
 was wrong, although they had been compelled to follow 
 a decision upon the subject by the Supreme Court of 
 the United States, because the interpretation by that 
 court of the Federal Constitution is made by that 
 instrument the "supreme law of the land." If, upon 
 another hearing after a recall by the people of their 
 state, they were to conform their judgment to wishes 
 of the majority, they would find themselves compelled 
 to pronounce a judgment at variance with an inter- 
 pretation of the Federal Constitution which, under 
 the oath just referred to, they were bound to adopt. 
 Until the whole subject could be passed upon by a 
 vote of the people of the nation, there would, therefore, 
 be conflict between the people of the states and their 
 courts, between the state courts and the Supreme 
 Court, and between the Supreme Court and the people 
 of the United States; in short, there would be chaos 
 in our judicial procedure and absolute uncertainty as 
 to the law by which the rights of the individual citizen 
 were to be governed. We are now in the midst of a 
 very remarkable social and industrial development. 
 This has already presented for the decision of the 
 courts, especially the federal courts, questions of far- 
 reaching importance; and on the horizon appear new 
 questions concerning old-age pensions, government
 
 RECALL OF DECISIONS 241 
 
 ownership of railroads and other public utilities, the 
 adjustment of the relation of labor organizations to 
 the government and to the employer, graded inherit- 
 ance taxes, and changes in the taxing system generally. 
 If the principle of direct reference to the people of 
 judicial decisions is once conceded, it is to this kind of 
 questions especially that it will be applied; and in the 
 heat of political contests for their immediate settle- 
 ment, the rights of the individual will be forgotten and 
 one after another of the decisions of the courts uphold- 
 ing the constitutional guarantees of liberty and prop- 
 erty will be set aside, and finally the entire structure 
 of representative republican government will be ruth- 
 lessly swept away by the votes of bare majorities at 
 successive special elections. It is no exaggeration to 
 say that the proposition puts ''the ax to the root of 
 the tree of well-ordered freedom." 
 
 There is no pressing necessity for the adoption of 
 the recall of decisions. It has been asserted, as I have 
 already said, that the proposition has nothing to do 
 with the United States Supreme Court, and is only an 
 effort "to bring laggard state courts of ultimate ap- 
 peal up to the progressive standards set by the nation 's 
 great court. If you do not agree with those standards 
 your quarrel is with Chief Justice White and his col- 
 leagues, and not with Colonel Roosevelt or Dean 
 Lewis." 1 We have seen that, after the election, this 
 limitation of the recall was repudiated by the leaders 
 of the Progressive Party, and that although nothing 
 has since happened to suggest a doubt that the Supreme 
 Court of the United States entertains sufficiently ad- 
 vanced views upon the burning social and industrial 
 questions of the day, they propose to subject that 
 tribunal also to the ignominy of a recall of its de- 
 
 i "Majority Rule and the Judiciary," by Ransom.
 
 242 PAPERS AND ADDRESSES 
 
 cisions; and, under Senator Bristow's amendment, not 
 only is this to be in matters involving the exercise of 
 the police power under the due-process-of-law clause of 
 the Constitution, but also where the court has con- 
 strued a clause of the Constitution containing an ex- 
 press and unambiguous prohibition or restraint. And 
 thus a law held by the courts to be unconstitutional 
 because it abridged "the freedom of speech or of the 
 press," or related to the "establishment of religion" 
 could, by a vote of a bare majority, be held valid ; and 
 by a similar vote the Constitution and laws of the 
 United States could be declared to be no longer the 
 "supreme law of the land" and the federal courts no 
 longer to be vested with "the judicial power of the 
 United States. ' ' The guarantee to the states that they 
 should always have "a republican form of govern- 
 ment ' ' could be set aside ; and indeed, under the pro- 
 posed amendment, our entire form of government 
 could by a single vote in a single year and under the 
 temporary spell of some extraordinary leader, inspired 
 perhaps by good, if unwise, but more likely by bad 
 motives, be swept away. It is not probable that the 
 people will ever adopt the extraordinary amendment 
 proposed by Senator Bristow, yet that it could be pro- 
 posed by a Senator of the United States as a logical ex- 
 tension of one of the most important planks in the plat- 
 form of a political party, indicates the loose thought 
 and adventurous spirit with which this vital subject is 
 being dealt. 
 
 If the Supreme Court has up to the present time dis- 
 charged its duty in interpreting public opinion in rela- 
 tion to matters of social and industrial justice, why 
 should such a radical proposition be even suggested, to 
 be held over their heads in terrorem? It would be 
 the height of folly to apply to their decisions the recall ;
 
 RECALL OF DECISIONS 243 
 
 and there is even less reason for applying it to the 
 state courts since any of their shortcomings may be 
 readily remedied by a simple amendment to the Federal 
 Judiciary Act, providing that, where a state court de- 
 cides that a state law is not a valid exercise of the 
 police power and therefore that it violates the due- 
 process-of-law provisions of the Fourteenth Amend- 
 ment of the Federal Constitution, an appeal may be 
 taken to the Supreme Court. Unless it be assumed 
 that the Supreme Court is to change its present ad- 
 vanced and progressive view of the scope of police 
 powers, this amendment will effectually cure the evils 
 complained of in a few of the state courts, and their 
 "outworn philosophy" will soon disappear without 
 revolutionary change in our judicial system, and by a 
 perfectly normal development of our American consti- 
 tutional law. There seems to have been no serious at- 
 tempt by the advocates of the recall to explain why 
 such an amendment to the judiciary act will not per- 
 manently and effectually correct any mistake of the 
 few state courts which have offended against the new 
 political philosophy. They have, it is true, attempted 
 to attract conservative support by asserting that the 
 recall of decisions is an antidote to what they claim to 
 be the more radical doctrine of the recall of judges. 
 But while the recall of judges is vicious in principle be- 
 cause it would, if frequently resorted to, tend to deter- 
 iorate the character and destroy the independence of 
 the judiciary, yet it would be an awkward and unsatis- 
 factory expedient and would probably after a few ex- 
 periments fall into disuse; particularly since it has 
 been shown in the Archbald case how effective an im- 
 peachment can be made for the punishment of judicial 
 improprieties. But even if the recall of judges were 
 frequently availed of it would be far less injurious in
 
 244 PAPERS AND ADDRESSES 
 
 its results than the recall of decisions. For the latter 
 device would not only have a demoralizing effect upon 
 the character, efficiency and independence of the judic- 
 iary equal to that produced by the recall of judges, 
 but it would, particularly in its post-election form, be 
 infinitely more dangerous to our institutions, for the 
 reason, already referred to, that it would afford a 
 means by which the electorate could, in the heat of 
 successive contests and by a bare majority, sweep away 
 one after another of the restraints of the Constitution 
 which had proved temporarily inconvenient, until fin- 
 ally the whole governmental structure should be top- 
 pled over. The insidious danger in this form of re- 
 call lies in the fact that it would work, as Judge Brad- 
 ley said, "by silent approaches and slight deviations," 
 and that, where the sympathies or the prejudices of the 
 electorate were temporarily aroused in a particular 
 case, it would be impossible successfully to resist a re- 
 call by an unemotional discussion of its ultimate effect 
 in contributing to the overthrow of our constitutional 
 form of government. 
 
 It is said that the recall of decisions has been un- 
 fairly attacked because it has been charged that it 
 amounted to "a reversal of judicial decisions by pop- 
 ular vote." This seems, however, to be an essentially 
 fair description. It is quite true that it is not pro- 
 posed to review decisions in ordinary litigation; that 
 is, where between individual litigants, the ordinary and 
 conventional rules of our system of law are applied. 
 But, passing the question whether if the principle of 
 the recall were conceded it might not be pressed to the 
 point of applying it to such cases, the fact is that great 
 constitutional questions always arise in cases where the 
 rights of individuals are involved, and in the case 
 of the recall of a decision, it would always happen that
 
 RECALL OF DECISIONS 245 
 
 the vote of the people would deprive some individual 
 citizen of his liberty or his property, in violation of his 
 constitutional rights as interpreted by the court. And 
 it would not be alone that citizen who would suffer; 
 for any one might at any time have his liberty or his 
 property put in jeopardy by the recall of a decision 
 upon the same question by a misled, an excited or a 
 tyrannous majority. It must not be forgotten that the 
 whole system of Anglo-Saxon civil liberty has been 
 built up upon principles settled in controversies where 
 the interest or liberty of single individuals was alone 
 involved, as for instance, in the cases of John Hamp- 
 den and the Ship Money, of Wilkes and the Freedom 
 of the Press in England, and of Dred Scott and the 
 Fugitive Slave Law. 
 
 Under the baneful influence of the recall, the char- 
 acter of the bench would, as I have already suggested, 
 deteriorate ; and the judicial function would finally be- 
 come a servile instrumentality for carrying into effect 
 the wishes of a majority of the electorate. Contem- 
 plate the position in which dignified judges like those 
 composing our Court of Appeals would be placed by 
 a movement for a recall of one of their decisions! 
 After giving to a case an industrious examination of 
 the evidence and the arguments, and after an impartial 
 consideration of it from the standpoint of the accumu- 
 lated wisdom of the wise judges and statesmen of the 
 past, embodied in constitutions and our system of jur- 
 isprudence, they would find their decision submitted 
 to a vote of the people with the record either misrepre- 
 sented or disregarded, and with no suitable or adequate 
 opportunity to present the weighty considerations 
 which had led them to their conclusion. The reasons 
 which would sway the electorate would probably be 
 those of partisanship in some form, which the judges
 
 246 PAPERS AND ADDRESSES 
 
 would have studiously refrained from considering ; and 
 the judges could not demean themselves — if their par- 
 ticipation were tolerated at all — by attempting to meet 
 the arguments of the political orators, especially when, 
 as it would often happen, they were of a character 
 that, if urged in open court, would be regarded as 
 contumacious. Nothing could present a situation so 
 offensive to the dignity of a court representing the 
 majesty of the law. The grandest function of a court 
 is performed when it pronounces a judgment in accord- 
 ance with righteousness and law, even though it be 
 denounced as a usurper of the rights of the people; 
 and it is in just that kind of cases that the recall 
 of decisions would most frequently be resorted to. It 
 is difficult to conceive of a court of the dignity of the 
 Court of Appeals of the State of New York, composed, 
 as Mr. Roosevelt says, of ''reputable and honorable 
 men," being subjected to the humiliation of such an 
 ordeal. Rather than endure it, the men who were of 
 the greatest judicial skill and experience and of the 
 highest character would refuse to serve; and as a 
 result the character of the judiciary would inevitably 
 deteriorate. 
 
 But it will be asked: if the fundamental objections 
 to the recall of decisions are insurmountable, how can 
 some courts be made to adopt a point of view in con- 
 struing the restraints of the Constitution which is more 
 accurately adjusted to the developing social and in- 
 dustrial philosophy of the day? I have already said 
 that this can and should be done either by amending 
 the Constitution or by presenting the mooted questions 
 in new cases and pressing upon the court new consid- 
 erations to induce them to change the decisions com- 
 plained of, as well as by taking suitable steps to bring 
 public opinion directly to bear upon the subject. But
 
 RECALL OF DECISIONS 247 
 
 an answer to the question more complete and satisfac- 
 tory than any I can give is afforded by the action and 
 words of Abraham Lincoln in relation to the Dred 
 Scott decision. Mr. Lincoln believed the Dred Scott 
 decision to be unsound as a matter of constitutional 
 interpretation; and as a statesman he refused to be 
 governed by it as a political rule ; but he never denied 
 its binding effect. He asserted that it remained open 
 for the parties to a future suit where the same question 
 might again arise, to attempt, by presenting new views 
 of the question, to induce the Supreme Court to put 
 a different interpretation upon the Constitution; or, 
 failing that, to procure an amendment of the Constitu- 
 tion. By so doing, he said: "I disturb no right of 
 property, create no disorder, excite no mobs." He 
 elaborated this view as follows: 
 
 "Judicial decisions have two uses: first, to absolutely de- 
 termine the cases decided; and secondly, to indicate to the 
 public how other similar cases will be decided when they 
 arise. For the latter use they are called precedents and au- 
 thorities. We believe as much as Judge Douglas (perhaps 
 more) in obedience to and respect for the judicial department 
 of government. We think its decisions on constitutional 
 questions when fully settled should control not only the par- 
 ticular cases decided, but the general policy of the country, 
 subject to be disturbed only by amendments of the Constitu- 
 tion as provided in that instrument itself, more than this 
 
 WOULD BE REVOLUTION." 
 
 Our history does not afford a more conspicuous ex- 
 ample of an unqualified recognition of the necessity 
 for avoiding incorrect decisions by those methods 
 only which are clearly within the limitations of the 
 Constitution. It has been said that Mr. Lincoln "ac- 
 tually applied in successful fashion the doctrine of
 
 248 PAPEES AND ADDRESSES 
 
 recall" to the Dred Scott decision. But everything he 
 said in his debate with Douglas and in his first inaugu- 
 ral address shows that this is a clear misconception of 
 his attitude; for he pointed out in the simplest and 
 clearest language that he proposed to reverse the de- 
 cision by methods clearly within the then existing pro- 
 visions of the Constitution, and that he did not pro- 
 pose to resort, under any circumstances, to revolution- 
 ary innovations like the recall. 
 
 The objections to the recall of decisions are funda- 
 mental. They are based on the principles which cannot 
 be surrendered without endangering our civil liberties. 
 They cannot be overcome by guarded phraseology or 
 by a multitude of provisos. Any one proposing a fun- 
 damental change of our constitutional law should be 
 able to show clearly that it will not imperil the life, 
 liberty or property of the American citizens either of 
 to-day or of the future. The effect of radical changes 
 of our fundamental law in any situation which a 
 reasonable foresight may present to the mind must 
 always be considered. In the wise and philosophical 
 observations of Washington, Hamilton, Webster and 
 Lincoln upon our Federal Constitution and its bal- 
 ances and restraints, their intellectual vision was not 
 confined to their own age. They spoke from the stand- 
 point of their study of two thousand years of history 
 which taught that governments must be protected 
 against the known tendencies of human nature. They 
 had learned that popular governments where the peo- 
 ple had failed to impose permanent restraints upon 
 themselves had always proved houses built upon the 
 sand, and that in the inevitable cataclysm it had been 
 the individual of the minority who at the behest of the 
 temporary majority was oppressed and deprived of his 
 life, his property or his liberty. To give heed to these
 
 RECALL OF DECISIONS 249 
 
 lessons of history does not indicate a disbelief in the 
 proposition that the people are, and must always con- 
 tinue to be, the only source of political power. Web- 
 ster did not indulge in exaggeration when he asserted 
 that "Whoever says, or speaks as if he thought, that 
 anybody looks to any other source of political power 
 in this country than the people, must have a stronger 
 and wilder imagination (than Don Quixote), for he 
 sees nothing but the creations of his own fancy. He 
 stares at phantoms ' ' ; but, at the same time, he uttered 
 a solemn admonition against "the sudden impulses 
 of mere majorities," and said that it was the "great 
 conservative principle" established by the American 
 people, "in constituting form's of government, that 
 they should secure what they had established against 
 hasty changes by mere majorities." We must, there- 
 fore, not be deterred by the oft-repeated, but un- 
 founded, charge that we do not trust the people and 
 we must approach a consideration of the doctrine of 
 the recall of decisions from the standpoint of histori- 
 cal instances, philosophical reflections and confidence 
 in our institutions. We must not fail to deal with it 
 seriously, because it appeals to many people sincerely 
 seeking to improve social and industrial conditions, 
 who have been misguided by partisan appeal ; and our 
 efforts must be unremitting because the recall is 
 pressed by persons whose influence in our community 
 is so potent as to make even such a heresy, when 
 advocated by them, a real menace. 
 
 The recall cannot be dismissed without grave con- 
 sideration, merely because there is ground to think 
 that it has been put forward for some temporary or 
 ulterior political purpose; for it is too subtle, too 
 plausible in its superficial aspects and too dangerous 
 in those which lurk beneath the surface. It should be
 
 250 PAPERS AND ADDRESSES 
 
 combatted by every resource at our command. Espec- 
 ially should members of our own noble profession avoid 
 being lulled into inactivity by their convictions that, be- 
 cause the recall is so revolutionary, therefore it is im- 
 possible; for the real character and effect of the 
 doctrine is more clear to us than to those who have 
 fewer occasions to consider the importance of main- 
 taining the balance of the different parts of the Con- 
 stitution. It will not do to content ourselves with 
 reiterating the formula that the judiciary must be 
 independent and the restraints of the Constitution 
 must be preserved. We must be prepared also to 
 give reasons and stimulate thought among the people. 
 This is a task that the lawyer can perform intelligently, 
 sympathetically and patriotically. He need surround 
 the courts with no undue sanctity, for none better than 
 he should know that judges are human, that in their 
 administration of justice their acts should be sub- 
 jected to the closest scrutiny, and that if their proce- 
 dure is too slow or too expensive or too technical, it 
 should be rigidly reformed. But he also knows that 
 the preservation in our governmental system of an 
 absolutely independent judiciary as a restraint upon 
 the too impulsive or the too frequent exercise of the 
 supreme political power is essential to the continued 
 life of the nation; and he should not grow weary in 
 conveying that message to his fellow citizens.
 
 STATE CONTROL OF NAVIGABLE WATERS
 
 XI 
 
 STATE CONTROL OF NAVIGABLE WATERS » 
 
 A kecent issue of the Review 2 contained a discus- 
 sion of the decision of the Court of Appeals in the 
 case of Long Sault Development Company v. Ken- 
 nedy. 3 A consideration of the effect of that decision 
 upon the development of our waterways for commer- 
 cial purposes may have some interest. 
 
 In 1907 the legislature passed an act incorporating 
 the Long Sault Development Company and authoriz- 
 ing it to construct a gigantic dam across the St. Law- 
 rence River, at the famous Long Sault Rapids. 4 The 
 project contemplated the expenditure of $35,000,000 
 in the improvement of navigation and the creation of 
 a water power capable of generating electrical energy 
 to the extent of four or five hundred thousand horse 
 power. Governor Hughes refused to sign the bill as 
 it was first passed by the legislature because it did not 
 provide for participation by the state in the profits 
 of the enterprise. Accordingly it was redrawn so as 
 to provide that after 1911 a minimum annual payment 
 of $25,000 should be made to the state, and that after 
 the power plant was in operation the state should re- 
 ceive at the rate of 25 cents per electrical horse power 
 generated in excess of 100,000 of such horse power. 
 Thus amended the act was passed and signed by Gov- 
 ernor Hughes. Besides paying annually the amounts 
 prescribed by the act, the company has expended nearly 
 
 i Reprinted from Columbia Law Review for May, 1915. 
 
 2 Columbia Law Review, 68. 
 
 3 (1914) 212 N. Y. 1. The case has been taken on writ of error to 
 the Supreme Court of the United States. 
 
 «N. Y. Laws of 1907, c. 355. 
 
 253
 
 254 PAPERS AND ADDRESSES 
 
 a million dollars in acquiring land and riparian rights, 
 and in engineering and other expenses in preparation 
 for the work of construction. The right of the com- 
 pany to commence work was expressly conditioned 
 upon its obtaining the consent of Congress. Such 
 consent has not been obtained, although the company 
 has made efforts to obtain it. 
 
 In 1913, the legislature passed an act 5 purporting to 
 repeal the charter of the company upon four grounds, 
 three of which assert the unconstitutionality of the 
 charter and the fourth that it was beyond the power of 
 the legislature to authorize the transfer of land under 
 the waters of the St. Lawrence River as they were held 
 in a sovereign capacity. 6 The Appellate Division of 
 the Third Department found that none of these four 
 
 s N. Y. Laws of 1913, c. 452. 
 
 6 "Section 1. Chapter three hundred and fifty-five of the laws of nine- 
 teen hundred and seven, ... is hereby repealed, upon the following 
 grounds : 
 
 "First. That chapter three hundred and fifty-five of the laws of 
 nineteen hundred and seven is unconstitutional in that it contravenes 
 section eighteen of article three of the state constitution, which pro- 
 vides that the legislature shall not pass a private or local bill granting 
 to any private corporation, association or individual any exclusive 
 privilege, immunity or franchise whatever. 
 
 "Second. That the said act is unconstitutional in that it contra- 
 venes section seven of article seven of the state constitution, which 
 provides that the lands of the state now owned or hereafter acquired, 
 constituting the forest preserve, as now fixed by law, shall be forever 
 kept as wild forest lands, and shall not be leased, sold or exchanged, or 
 taken by any corporation, public or private. 
 
 "Third. That the said act violates section sixteen of article three of 
 the state constitution, which provides that no private or local bill, 
 which may be passed by the legislature, shall embrace more than one 
 subject, and that shall be expressed in its title. 
 
 "Fourth. That the said act is invalid as being in excess of the powers 
 of the legislature, in that it attempted to provide for the alienation of 
 the state to the Long Sault Development Company of title to the land 
 in the bed of the St. Lawrence River. The title of the state in those 
 lands is a sovereign right rather than a proprietary title. It is incon- 
 sistent with that right, which must be exercised for the benefit of the 
 whole people, that the title to the bed of a navigable stream should 
 be granted in fee to a private corporation." 
 
 N. Y. Laws of 1913, c. 452.
 
 CONTROL OF NAVIGABLE WATERS 255 
 
 grounds was adequate to justify the repeal ; but it also 
 held that the repealing act and another act passed at 
 the same time taken together constituted a taking by 
 right of eminent domain, and it therefore denied the 
 relief asked for by the company. 7 The Court of Ap- 
 peals affirmed the order of the Appellate Division but 
 based its conclusion exclusively upon a ground not 
 specifically mentioned in the repealing act; namely, 
 that it was attempted by the charter to transfer to a 
 private corporation the control, not alone of the land 
 under the water (which was of limited extent, being 
 only that occupied by the works erected), but also the 
 " entire control of navigation" at the Long Sault 
 Rapids, and that it was beyond the power of the legis- 
 lature to cede such control because thereby the state 
 would part "for all time with its own power to improve 
 such navigation." An extract from the opinion is 
 given in a note. 8 
 
 7 (1913) 158 App. Div. 398. 
 
 8 "It (the grant) virtually turns over to the corporation entire con- 
 trol of navigation at the Long Sault Rapids (provided, of course, that 
 the consent of Congress can be obtained) . All that the corporation must 
 do is to construct the contemplated works, pay the stipulated sums 
 and keep the navigation as good as it is now. No matter how much the 
 interests of the public may demand the improvement thereof in the 
 future, the state will be powerless to act either directly or by constraint 
 upon the corporation. It is precisely as though the legislature should 
 confer upon a corporation exclusive authority to construct works on the 
 Hudson River to improve the navigation between Albany and Troy 
 upon condition that such navigation shall be preserved in as good con- 
 dition as the same is at present, and thereby preclude the state from 
 ever hereafter improving the navigation itself. In my opinion the legis- 
 lature cannot make such a contract in behalf of the state. In Illinois 
 Central Railroad Company v. Illinois (146 U. S. 387) the attempted 
 alienation of 1,000 acres of the harbor of Chicago was condemned on 
 account of the extent of the area granted. Here the grant is objec- 
 tionable on account of the abdication of the state's control over waters 
 which are still to be preserved as navigable but which are to be 
 turned over wholly to the dominion of a private corporation. In this 
 discussion I assume that the improvement of navigation was a real, 
 even if subsidiary, purpose of the enactment and not merely a cloak 
 for a power development project. The point that I desire to emphasize
 
 256 PAPERS AND ADDRESSES 
 
 While conceding the power of the legislature to grant 
 lands under water for beneficial uses which ' ' can fairly 
 be said to be for the public benefit or not injurious to 
 the public," the court held that the grant to the Long 
 Sault Development Company could not be sustained as 
 being of that character because "no matter how much 
 the interests of the public may demand the improve- 
 ment thereof in the future, the state will be powerless 
 to act either directly or by constraint upon the corpora- 
 tion. . . . Here the grant is objectionable on account 
 of the abdication of the state's control over waters 
 which are still to be preserved as navigable but which 
 are to be turned over wholly to the dominion of a 
 private corporation." 
 
 This doctrine as applied to the facts in the Long 
 Sault case, if it shall be found not to violate any rights 
 of the company secured by the Federal Constitution, 
 will have a far-reaching effect upon the improvement 
 by private enterprise of navigable streams in this 
 state. 
 
 The facts are thus referred to by the court, viz. : 
 
 "As is generally known, the celebrated Long Sault rapids 
 constitute a substantial obstacle to the navigation of the St. 
 Lawrence for commercial purposes, being navigated by only 
 one line of passenger boats during the tourist season. In the 
 petition in this proceeding the effects of the proposed scheme 
 on navigation are summarized as follows : 
 
 is that the legislature cannot authorize the conveyance of a navigable 
 portion of the St. Lawrence to a private company to maintain and 
 control navigation thereon, thereby parting for all time with its own 
 power to improve such navigation. The privilege of the state to control 
 the St. Lawrence as a navigable river (subject to the direction of 
 Congress) cannot be assigned to others in the manner attempted by 
 this legislation. As long as the waters are maintained as navigable 
 they remain public waters of the state; and as long as they remain 
 public waters of the state the state is bound to retain control over 
 them in the public interest." 
 
 Long Sault Development Company v. Kennedy (1914) 212 N. Y. 1, 9.
 
 CONTROL OF NAVIGABLE WATERS 257 
 
 " 'The river, which at Long Sault is now practically unnav- 
 igable, will become navigable for all classes of vessels. Both 
 of the contemplated locks will be continuously operated dur- 
 ing the navigation season toll free. Reliable and economical 
 power will be made available within the radius of transmission 
 of electricity from the power houses. New industries will 
 thereby be created. There will be increased quantities of 
 products from manufacturing plants utilizing the power, 
 which products must be distributed by boat or rail.' " 
 
 Some question having been raised as to whether the 
 proposed dams would improve navigation, the court 
 stated that it assumed ''that the improvement of navi- 
 gation was a real, even if subsidiary, purpose of the 
 enactment and not merely a cloak for a power-devel- 
 opment project;" and this assumption was justified 
 under the principle that such acts "are valid if it can 
 be reasonably inferred from all their provisions that 
 the improvement of navigation was their primary and 
 principal object. No express declaration in the acts 
 that such w^as the object and purpose of the legislature 
 in enacting them, is required ; nor is such a declaration 
 usual in acts of a similar nature. ' ' 9 
 
 Neither the magnitude of the improvement as a 
 power project nor the importance of the St. Lawrence 
 River because of its size and international character 
 were referred to by the court as exceptional circum- 
 stances in support of the broad doctrine laid down in 
 its opinion; indeed, for the purpose of illustration, 
 the court intimated that the same rule would be applied 
 if the legislation had authorized works for the improve- 
 ment of the navigation of the Hudson River between 
 Albany and Troy; and, of course, the principle of the 
 decision would be equally applicable to prevent a grant 
 to a private corporation to improve the navigation of 
 
 oTewksbury vs. Schulenberg (1877) 41 Wis. 584, 593.
 
 258 PAPERS AND ADDRESSES 
 
 the Hudson in its upper reaches, or the Mohawk or 
 any similar stream where the volume of water might 
 be sufficient to make an improvement of navigation and 
 the incidental water power a profitable enterprise. It 
 may fairly be assumed that the legislature and Gov- 
 ernor Hughes were of the opinion that specific provi- 
 sions for the protection of navigation were unneces- 
 sary because, under the charter, no work could be 
 commenced until the approval of the federal govern- 
 ment had been obtained, and because that approval 
 would insure: first, adequate provision in any special 
 act of Congress for the protection of the public inter- 
 ests; second, the enforcement of all of the stringent 
 provisions concerning the erection of dams in naviga- 
 ble streams contained in the Federal Dam Act, partic- 
 ularly that which vests in the War Department the 
 power to determine what kind of a dam or similar 
 structure may be constructed in a navigable stream; 
 and, third, the permanent supervision by the federal 
 authorities in the operation of all of the works so far 
 as such operation might affect navigation. 
 
 Without adverting to the features of the Long Sault 
 charter just mentioned, the court lays down the broad 
 proposition that the state is without power to author- 
 ize a private corporation to build works in a navigable 
 river for the improvement of navigation and to grant 
 to it the irrevocable right to enjoy the water power 
 incidentally created thereby, because the building, 
 maintenance and control of such works necessarily 
 involve the control of navigation and preclude for all 
 time the exercise by the state of "its own power to 
 improve such navigation." The court draws a dis- 
 tinction between cases on the one hand where the state 
 surrenders its control of navigation by granting the 
 right to build and maintain dams, locks and similar
 
 CONTROL OF NAVIGABLE WATERS 259 
 
 works, and those on the other hand where the struc- 
 tures authorized are piers, bridges or other similar 
 structures in public waters designed to facilitate the 
 operations of commerce. Without doubt the building 
 of a dam which changes the water level of a navigable 
 river and forces vessels to use locks and canals, in- 
 volves a more direct and complete control over vessels 
 using the river than piers, bridges or similar structures 
 which may legally occupy, to the exclusion of others, a 
 limited portion of the navigable portion of a river; but 
 it has not heretofore been supposed that the two kinds 
 of grants differed except in the extent that they in- 
 volved interference with navigable waters in their 
 natural state. 
 
 Where navigable streams in the State of New York 
 have been developed for water-power purposes, the 
 work has usually been done by private companies, or 
 individuals under authority granted by the legislature. 
 A condition for the improvement (or even the preser- 
 vation) of navigation has sometimes, but by no means 
 always, been imposed. The practice prior to 1840 dif- 
 fered materially from that prevailing since 1882, as is 
 explained in a note. 10 Generally since 1882, the legis- 
 
 10 By a general dam act passed in 1813 (Chapter 47) the legislature 
 made separate grants to a number of individuals to ereet dams in 
 certain rivers declared by the act to be public highways. These grants 
 were for a limited period and were made sidjject to certain restrictions 
 designed to prevent any obstruction to navigation, which was to be 
 free from the payment of tolls. From 1813 to 1840 the legislature 
 passed more than 125 special acts granting to individuals the right to 
 build dams in certain streams which were navigable or capable of being 
 developed for navigation. Generally these grants were made subject to 
 one or more of the following conditions, viz.: (a) That the court could 
 revoke the grant if the dam proved to be an inconvenience to the public; 
 (b) that the grant could be repealed without liability for damage or 
 compensation to the grantee whenever the public interest might require; 
 and (c) that the act should become void if passage upon the stream 
 was obstructed by the dam. 
 
 In over forty years, between 1840 and 18S2, there were hut few 
 special acts granting the right to build dams. Since 1882. however,
 
 260 PAPERS AND ADDRESSES 
 
 lative acts besides authorizing the erection by private 
 corporations of dams and power plants have provided 
 for the grant to such corporations of the interest of the 
 state in the land under water covered by the dams and 
 other works. It has been supposed that such acts cre- 
 ated franchises, entitling the grantees to have the bene- 
 ficial use of the water power, and that they could not 
 be deprived of such franchises without compensation. 
 The industrial requirements of this state do not 
 seem to have led to the extensive development of its 
 waterways by artificially increasing their navigability. 
 Undoubtedly this has been due in part to the extensive 
 development of the canal system. State canals are fre- 
 quently fed by the waters of potentially navigable 
 
 the legislature has passed about twenty special acts granting the right 
 to certain waterpower companies (and in a few cases to individuals) 
 to erect dams across some of the larger streams of the state, such as the 
 Hudson and Mohawk rivers. 
 
 The provisions of these acts were different from those of the acts 
 passed prior to 1840 in the following particulars, viz: No right of 
 repeal was reserved ; there was no express condition that the navigation 
 was to be improved, in some cases it being provided that navigation 
 should not be injured, in others the subject not being mentioned at all ; 
 generally there was no condition for the resumption by the state of 
 control of na\ igat.ion ; in some cases the use of the land under the 
 water covered by the dam, and flooded by its erection was given to the 
 grantee and in some cases the legal title was conveyed to it; and there 
 was no limitation as to the time of enjoyment and in five cases the right 
 was granted to maintain the dam "forever." 
 
 The dams constructed before 1840 were probably not of expensive or 
 elaborate construction but were built and used to create water power for 
 the operation of sawmills and grist mills belonging to grantees owning 
 the lands and riparian rights in the immediate vicinity. At that time 
 the needs of navigation were not rapidly developing and the grantees 
 were, therefore, not deterred by the limitations imposed by the legis- 
 lature from making the expenditures necessarily involved. The com- 
 panies receiving grants made since 1882, however, have been organized 
 for the purpose of developing waterpower to be converted into electrical 
 energy for the operation of extensive modern manufacturing plants. 
 Such enterprises involve the building at large expense of masonry or 
 concrete dams and they would not be undertaken if the right to main- 
 tain the dams were to be made subject, at the will of the legislature, 
 to termination without compensation. These circumstances perhaps ex- 
 plain the change of legislative policy since 1882.
 
 CONTROL OF NAVIGABLE WATERS 261 
 
 rivers which are themselves left in their natural state, 
 or even depleted to supply the canals. This condition 
 is different from that prevailing in other states where 
 important industries make transportation by water of 
 the highest importance. In such states statutes fre- 
 quently provide for the improvement of waterways by 
 private corporations which, in consideration of bearing 
 the expense, are given the right in perpetuity to collect 
 tolls from vessels making use of the improved facili- 
 ties. The constitutions of some states forbid the ex- 
 penditure of public moneys for such improvements; 
 and there the navigability of waterways must be im- 
 proved by private enterprise, or not at all. In states 
 where the facilities of navigation have been managed 
 by private improvement companies, and tolls have been 
 imposed upon commerce for the use thereof, it has not 
 been regarded that the control of navigable waters 
 necessarily resulting from such an arrangement has 
 been inimical to the public interest. 11 
 
 The rights of such improvement companies were 
 dealt with by the Supreme Court of the United States 
 in the case of Monongahela Navigation Company v. 
 United States. 12 The Monongahela River in its nat- 
 ural state was navigable to a very limited extent and 
 not at all seasons. The commerce upon the river was 
 small. The Navigation Company, under authority of a 
 special act of the legislature of Pennsylvania, con- 
 structed a series of seven dams and locks, whereby the 
 river was made navigable for large steamboats at all 
 seasons of the year and facilities were furnished for an 
 extensive commerce. The United States Government 
 for the purpose of still further improving the naviga- 
 tion of the river, and under its constitutional power to 
 
 11 Farnham, "Waters and Water Rights," 384. 
 
 12 (1893) 148 U. S. 312.
 
 262 PAPERS AND ADDRESSES 
 
 regulate commerce, sought to take possession of one of 
 the dams and locks constructed by the Navigation Com- 
 pany. It was contended that the company had acquired 
 from the state a vested right to collect tolls, of which 
 it could not be deprived by the United States without 
 due compensation. This point was sustained by the 
 Supreme Court, which said: 
 
 "That, in the absence of congressional action, the State of 
 Pennsylvania had the power, either acting itself or through 
 a corporation which it chartered, to improve the navigation 
 of the river by means of locks and dams, and also to author- 
 ize the exaction of tolls for the use of such improvements, are 
 matters upon which there can be no dispute, in view of the 
 many decisions of this court." 
 
 The court further held that neither the state nor the 
 United States could "say that such lock and dam are 
 an obstruction and wrongfully there, or that the right 
 to compensation for the use of this improvement by the 
 public does not belong to its owner, the Navigation 
 Company"; and that while the federal government 
 had the right to acquire the improvements if they had 
 been made "under authority of a charter granted by 
 the state with a franchise to take tolls for the use of 
 the improvement, in order to determine the just com- 
 pensation, such franchise must be taken into account." 
 The court took the view which it had previously ex- 
 pressed in its decision in Ruse v. Glover, 1 * that im- 
 provements to navigation made by the construction of 
 dams and locks were like wharves and docks con- 
 structed to facilitate commerce. Finally the court 
 said: 
 
 ' ' The theory of the government seems to be, that the right 
 of the Navigation Company to have its property in the river, 
 
 13 (1886) 119 U. S. 543, 548.
 
 CONTROL OF NAVIGABLE WATERS 263 
 
 and the franchises given by the state to take tolls for the use 
 thereof, are conditional only, and that whenever the govern- 
 ment, in the exercise of its supreme power, assumes control 
 of the river, it destroys both the right of the company to have 
 its property there, and the franchise to take tolls. But this 
 is a misconception. The franchise is a vested right. The 
 state has power to grant it. It may retake it, as it may take 
 other private property, for public uses, upon the payment of 
 just compensation. A like, though a superior, power exists 
 in the national government. It may take it for public pur- 
 poses, and take it even against the will of the state ; but it can 
 no more take the franchise which the state has given than it 
 can any private property belonging to an individual." 
 
 Commissioners of the Sinking Fund v. Green and 
 Barren River Navigation Company, 14 is another well- 
 considered case in which the same subject was dealt 
 with. The Navigation Company was incorporated by 
 an act which set forth that the state had constructed 
 locks and dams on Green River necessitating large ex- 
 penditures and that the state being largely in debt and 
 wishing to avoid further expense, had transferred the 
 line of navigation to the Navigation Company which 
 undertook to maintain it in repair. The lease was for 
 thirty years, the line to be open to all vessels on pay- 
 ment of the toll to the company. Twelve years after 
 the act of incorporation was passed a repealing act 
 was passed terminating the lease and revoking the 
 right to collect tolls. The action was commenced to 
 put the state in possession. It was argued that a navi- 
 gable stream was public property which could not be 
 disposed of by the state. 
 
 The court says, by Pryor, J.: 15 
 
 "The state has the same power to improve its navigable 
 
 " (1880) 79 Ky. 73. 
 is At p. 78.
 
 264 PAPERS AND ADDRESSES 
 
 streams that it has any of its highways ; and when it becomes 
 necessary to extend the line of navigation for the purpose of 
 developing the resources of the state, or to facilitate trade and 
 commerce, the state may contract with individuals or cor- 
 porations for the construction of such improvements, and as 
 a consideration therefor, transfer to them the tolls arising 
 from its navigation." 
 
 , 16 
 
 And again 
 
 "When the property of the citizen is taken in the exercise 
 of this sovereign power, the legislature may confer on a cor- 
 poration the right to charge tolls in consideration of its being 
 placed in a condition for public use; but when the state is 
 already in possession of its navigable waters, and no condem- 
 nation is requisite or compensation required, it is attempted 
 to be maintained that no such power can be exercised, and 
 our navigable rivers are to remain unimproved, or the im- 
 provements already made permitted to decay for the reason 
 that the state is unwilling to burden the citizen with taxation 
 for that purpose, and is denied the power to permit the im- 
 provement to be made by others, for no other reason than that 
 the law of nature has already appropriated them to public 
 use. 
 
 "The fallacy of this reasoning, if followed, would prevent 
 the state from placing a dam in the river that might tend to 
 prevent its free use by the citizen who was unable to pay the 
 toll." 
 
 The court goes on to say that the state could resume 
 control of the improvements when public necessity de- 
 manded it, on payment of just compensation to the 
 corporation. 
 
 These two cases may be said to be typical. A num- 
 ber of decisions dealing with similar cases are referred 
 to in a note. 17 In all such cases the state governments 
 
 is At p. 79. 
 
 17 Veazie v. Moor (1852) 14 How. 568: The State of Maine conferred 
 on a corporation the exclusive right of navigation on a portion of the
 
 CONTROL OF NAVIGABLE WATERS 265 
 
 have been " powerless to act either directly or by con- 
 straint upon the corporation" for the improvement of 
 navigation except by proceeding under the power of 
 eminent domain to acquire the control of navigation 
 ceded by legislative grant to private corporations. 
 
 The method proposed for compensating the Long 
 Sault Company for the expense of the works author- 
 ized by its charter was not, as in the Monongahela 
 case, by a grant of the right to collect tolls, for the use 
 of the locks was to be free, but by a grant of the 
 privilege of using and selling the power generated by 
 the surplus waters collected above the dam. This dif- 
 ference would not seem to affect the principle of the 
 decision. The plan of compensation adopted in the 
 Long Sault case has had the sanction of legislative 
 practice in this state for many years. In one of the 
 legislative grants made since 1882, 18 an act of the legis- 
 
 Penobscot River located entirely in the State of Maine. An injunction 
 was granted by the state courts excluding the boats of another company 
 from navigating on the portion of the river in question. The decision 
 was held not in conflict with the commerce clause of the Federal 
 Constitution. 
 
 Carson River Lumbering Company v. Bassett (1866) 2 Nev. 760: An 
 act entitled "An act for the Improvement of the East Branch of Carson 
 River" gave an exclusive right to the use of the river, within certain 
 points which were to be improved. This act was held valid in an action 
 on contract to recover for the use of the river by another company. 
 
 McReynolds v. Smallhouse (1871) 71 Ky. 447: The state had 
 expended large sums in improving the navigation on a part of the 
 river, and turned this portion of the river over to a corporation which 
 was to maintain it and collect tolls. The constitutionality of the act 
 was attacked on the ground that "No man or set of men are entitled 
 to exclusive separate public emoluments or privileges from the commu- 
 nity but in consideration of public services." But the act according 
 the right to collect the tolls was hold valid. 
 
 See also Colin v. Watisau Boom Company (1879) 47 Wis. 314. 
 
 is The Genesee River Company was organized under the provisions of 
 Chapter 605 of the Xew York Laws of 18!)S. The act first recited that 
 it was necessary "for the improvement and preservation of the public 
 health, for the checking of floods, for the furnishing of water for the 
 enlarged Erie Canal, and for the supplying of pure and wholesome water 
 for municipal purposes" that the land described in the act should be 
 taken "for the public uses aforesaid," and that "in the judgment of this
 
 266 PAPERS AND ADDRESSES 
 
 lature specifically recited that certain necessary pub- 
 lic purposes which could be accomplished by the devel- 
 opment of the Genesee River ought not to be under- 
 taken at public expense and therefore the Genesee 
 River Company was organized and was, in considera- 
 tion of constructing the necessary works at its own 
 expense, granted the beneficial interest in the water 
 power incidentally made available by the erection of 
 the dam, which was the principal feature of the works. 
 
 Before the passage of the Long Sault act there had 
 never been a case where provision had been made for 
 participation by the state in the profits of a water 
 power plant constructed in a public stream by the au- 
 thority of the legislature. 19 This feature of the Long 
 Sault charter was no doubt a result of the growth of 
 the modern idea that the state is entitled to, and should 
 reserve to itself, a participation in the profits of the 
 development of all its natural resources. 
 
 The transfer to a private corporation of the right to 
 use and sell power as compensation for the building of 
 a dam in a navigable river was considered by the Su- 
 preme Court in Kaukauna Water Power Company v. 
 
 legislature" the compensation to be paid for such land should not be 
 made by the state but that the public purposes indicated should be 
 attained as prescribed in the act and by the organization of the corpora- 
 tion created by the act. The company was authorized to build a dam 
 across the Genesee River and was given "the right to utilize all the 
 waterpower incidentally created by the construction of said main dam 
 or reservoir" and to construct certain other structures "for the develop- 
 ment of hydraulic and electrical power and for the purpose of making 
 and transmitting compressed air and for other purposes." The company 
 was authorized to sell all water and electrical power generated at the 
 dam for its exclusive benefit. There was no limitation upon the period 
 of enjoyment of the rights granted by the act, and no control of naviga- 
 tion of the stream was reserved. 
 
 is A similar provision was made in the case of The Clinton Mills 
 Power Company which was authorized by Chapter 514 of the New York 
 Laws of 1911 to rebuild and maintain a dam across the Susquehanna 
 River not exceeding ten feet in height, at a place where the right to 
 build a dam had been granted in 1813 to certain individuals. The
 
 CONTROL OF NAVIGABLE WATERS 267 
 
 Green Bay and Mississippi Canal Company. 20 When 
 Wisconsin was admitted to the Union, the Federal 
 Government granted to it lands, the proceeds of which 
 were to be used in improving certain waterways of the 
 state. A corporation was organized under state leg- 
 islative authority and with the proceeds of lands 
 granted to it, it constructed dams and other works 
 in the Fox River — a navigable stream. These works 
 were subsequently purchased by the United States, but 
 the right to use the waters not needed for navigation 
 purposes was not transferred. A question arose be- 
 tween the grantee of the right to use these surplus 
 waters and a riparian owner. It was held that the 
 riparian owner had no rights, since the construction 
 of the dam was undertaken by the state and to reim- 
 burse itself it was entitled to dispose of the right to 
 use the surplus water for power purposes. The court 
 said that if the sole purpose of the improvement was 
 to create a water power to be leased for manufacturing 
 purposes, the state would probably not have the right 
 to destroy, without compensation, riparian rights, but 
 added that there was nothing objectionable in permit- 
 ting the state to let out the use of it to private parties, 
 and thus reimburse itself for the expenses of the im- 
 provement. The court further said that 
 
 ". . . where the surplus thus created was a mere incident to 
 securing an adequate amount of water for the public im- 
 
 grant was for fifty years and during that time the state was to receive 
 75 cents per horsepower produced, that amount to he readjusted every 
 five years. The act contained certain provisions protecting "mills now 
 operating higher up on said stream," and was declared to be "a public 
 act, and the land flowed with water as herein provided is hereby 
 declared to be for public use." There was no provision, however, reserv- 
 ing to the state the right to improve or control navigation or giving the 
 public any compensatory advantage except that referred to above. 
 Some of the provisions of the act were obviously suggested by the Long 
 Sault charter. 
 
 20 (1891) 142 U. S. 254.
 
 268 PAPERS AND ADDRESSES 
 
 provement, such legislation, it is believed, has been uniformly 
 sustained. . . . The dam was built for a public purpose, and 
 the act provided that if, in its construction, any water was 
 incidentally created, it should belong to the state, and it might 
 be sold or leased, in order that the proceeds of such sale 
 or lease might assist in defraying the expenses of the im- 
 provement. ' ' 
 
 An arrangement such as that referred to by the court 
 might be regarded not so much as constituting a fran- 
 chise as being a public contract made by the state for 
 the erection of works to improve navigation, the water 
 power incidentally created being used to defray the 
 cost. The water power is, so to say, a by-product of 
 a public improvement to be disposed of for the public 
 benefit. As was said by the Supreme Court later, in 
 Green Bay & Mississippi Canal Company v. Patten 
 Paper Company, 21 referring to the same legislation 
 which was under consideration in the Kaukauna Com- 
 pany case, the legislation "has had in view the dedica- 
 tion of the water powers incidentally created by the 
 dams and canal to raising a fund to aid in the erection, 
 completion and maintenance of the public works." 
 
 Since the Court of Appeals based its conclusions in 
 the Long Sault case upon principles established in Ill- 
 inois Central Railroad v. Illinois, 22 some reference to 
 that case should be made. A grant had been made by 
 the Illinois legislature to the railroad company for rail- 
 road purposes, which included certain lands under the 
 waters of Lake Michigan, and in addition thereto land 
 under water constituting "nearly the whole of the sub- 
 merged lands of the harbor, subject only to the limita- 
 tions that it should not authorize obstructions to the 
 harbor or impair the public right of navigation, or 
 
 21 (1898) 172 U. S. 58. 
 
 22 (1892) 146 U. S. 387.
 
 CONTROL OF NAVIGABLE WATERS 269 
 
 exclude the legislature from regulating the rates of 
 wharfage or dockage to be charged." The effect of 
 the act, as the court said, was to vest in the railroad 
 company the power "to manage and practically con- 
 trol the harbor of Chicago, not simply for its own 
 purpose as a railroad corporation, but for its own 
 profit generally." There was practically an "abdi- 
 cation of the general control of the state over lands 
 under the navigable waters of an entire harbor or bay, 
 or of a sea or lake." Only a small portion of the 
 thousand acres attempted to be conveyed was needed 
 for the enjoyment by the railroad company of its fran- 
 chises. Under such circumstances the court said that 
 "it would not be listened to that the control and man- 
 agement of the harbor of that great city — a subject 
 of concern to the whole people of the state — should 
 thus be placed elsewhere than in the state itself." A 
 similar question arose in Coxe v. State, 23 where, under 
 the guise of an act to authorize the drainage of marsh 
 lands, there was authorized a conveyance by the state 
 to a private corporation of all of the land which the 
 corporation chose to designate under the waters of 
 the ocean or of the sound within the limits of the coun- 
 ties of Kings, Queens, Richmond and Suffolk, excepting 
 such land as was within the limits of the city of Brook- 
 lyn. This description would cover a water-front line 
 of probably several hundred miles along the shore of 
 Long Island. There was no definite public purpose 
 expressed in or to be inferred from the act as a basis 
 for the grant, and the court justly characterized the 
 proposed grant as being of "extravagant magnitude," 
 and said that there was nothing in the act "to indi- 
 cate that the grant was for any public purpose." It 
 added, however, that "for every purpose which may 
 
 23 (1895) 144 N. Y. 396.
 
 270 PAPERS AND ADDRESSES 
 
 be useful, convenient or necessary to the public, the 
 state has the unquestionable right to make grants in 
 fee or conditionally for the beneficial use of the gran- 
 tee, or to promote commerce according to their terms." 
 Grants of public lands have heretofore been held to 
 be beyond the power of the legislature only in extreme 
 cases like the two just referred to. In the Long Sault 
 case, however, the Court of Appeals has taken the view 
 that, although the proposed improvement would con- 
 stitute an improvement to the navigation of the St. 
 Lawrence River, yet the permanency of the improve- 
 ment and the character of the right of the Long Sault 
 Company to enjoy in perpetuity the incidental advan- 
 tage accruing from the use for power purposes of the 
 surplus water flowing over the dams, were of such a 
 character and extent that there was vested in a private 
 corporation such a control of the navigation of the 
 river that the state itself was precluded from resuming 
 such control when, for the benefit of the public, it might 
 deem it necessary to do so for the improvement of 
 navigation. The charter of the Long Sault Company 
 makes no express grant of such control, and the con- 
 clusion of the court was based upon what it regarded as 
 a necessary implication from the character and extent 
 of what was granted. But upon this point, it is not to 
 be overlooked that upon the completion of the dams ac- 
 cording to the plans prescribed by the federal gov- 
 ernment, the company is obliged to operate the locks 
 for the purpose of accommodating all shipping making 
 use of the river and without compensation. In view of 
 the obligation thus imposed it is difficult to see how 
 the state can reasonably be said to be deprived of any 
 control which it would still be entitled to exercise after 
 the federal government had approved of the improve- 
 ment and had thus exercised its right to control naviga-
 
 CONTROL OF NAVIGABLE WATERS 271 
 
 tion under the commerce clause of the Constitution. 
 For the company would not then have the right to in- 
 terpose objections or impose burdens upon navigation, 
 nor would either the federal or the state government, 
 in any respect, lose control of such navigation, except 
 so far as the control of the state would disappear 
 when the federal government acted. Judge Collin has 
 very fully considered this point in his dissenting 
 opinion, viz. : 24 
 
 "It [the company] could not enter upon or interfere with 
 the river, under the act, until Congress had sanctioned its 
 proposed works by authorizing the construction of the dams, 
 locks and canals. This, of necessity, implies accurate and 
 complete Congressional knowledge of the character, location, 
 extent and effects of those authorized structures. Until Con- 
 gress had acted in the matter, the state had the unbounded 
 and unrestricted right to exercise and effectuate its judgments 
 in improving the navigability. . . . The act did not to any 
 extent impede or shackle the state. It did not give to the 
 corporation or take from the state any control whatsoever 
 of the navigation. The state remained in so far as the act 
 was concerned, as free and powerful to work its will, in 
 the public interest, in regard to the river and its navigation 
 as it was before the act was passed or would have been in its 
 absence. There was no provision in the act which stayed 
 the hand of the state pending the action of Congress in the 
 matter or which directly or through reasonable implication 
 fettered or withdrew, or turned over to the corporation, to 
 any extent or in any particular the control held by the state, 
 at the passage of the act, of navigation or the waters de- 
 sired therefor. There was no language in it which would 
 have branded as illegal or unfair whatever action concern- 
 ing navigation the state might have taken. The control 
 of navigable waters, if alienable at all, should only be so by 
 an instrument showing a clear and undoubted intention on 
 
 24 At. p. 25.
 
 272 PAPERS AND ADDRESSES 
 
 the part of the legislature to that end. The act in this re- 
 gard was, in effect, the grant of such land under the water 
 as the structures approved and authorized by Congress should 
 cover, and of the right to use for a water power such surplus 
 water as navigation regulated and controlled by Congress 
 should not require, the grant, however, to have and take no 
 effect until Congress had acted in the matter. Whenever 
 Congress acted in the matter, it drew and retained unto itself 
 exclusive and paramount control over the navigation and 
 waters of the river for that purpose. Thereafter and there- 
 upon such control was vested exclusively in Congress, by 
 virtue, not of the act, but of the authority delegated by the 
 state through the Federal Constitution." 
 
 Precisely how the decision in the Long Sault case 
 will affect the development of the waterways of the 
 state for power and navigation purposes it is difficult 
 to predict. Future legislation may, perhaps, contain 
 express provisions that the state shall retain control 
 of navigation, operating the locks and other artificial 
 devices for the accommodation of shipping, and col- 
 lecting any tolls charged for the use of such facilities. 
 It might even be provided that the state authorities 
 should have the right, whenever they were of the 
 opinion that the public interest required it, to take 
 possession of the dams and power plants connected 
 therewith and that this could be done without compen- 
 sating the corporation which had constructed them. 
 By such restrictive provisions the dangers referred to 
 by the Court of Appeals in the Long Sault decision 
 would be avoided. From the standpoint of the public 
 interest, however, the important question is how far 
 such provisions would interfere with the development 
 of rivers for power and navigation purposes. Cer- 
 tain it is that they would mark a change in the policy 
 of this state during the last thirty years; for power
 
 CONTROL OF NAVIGABLE WATERS 273 
 
 companies have, during that period, been induced to 
 improve at large cost navigable streams because of the 
 anticipated profit from the sale of water or electrical 
 power. Such companies can hardly be expected to 
 continue to make such improvements if their right to 
 have the beneficial enjoyment of them can be taken 
 away without compensation; and under such circum- 
 stances the improvement of the waterways, whether 
 for the development of power or the improvement of 
 navigation, would have to be undertaken at the public 
 expense. Legislation to accomplish that result is now 
 receiving considerable attention from the people of 
 this state. Whether under the power given by such 
 legislation the improvement of our waterways, if made 
 at the expense of the public, would proceed fast enough 
 to keep pace with the modern demands of commerce, 
 and whether power plants could be profitably or ef- 
 ficiently operated by the state, are questions of state 
 policy as to which opinions will differ and which are 
 beyond the scope of this article. In the case of the 
 Long Sault project, however, it is inconceivable that 
 the people of the state would tolerate the expenditure 
 of any considerable sum merely to improve the naviga- 
 tion of the St. Lawrence, and it is scarcely more prob- 
 able that they would approve an increase of the debt 
 of the state by the enormous sum of $35,000,000 in 
 order to go into the business of producing water power 
 to be sold to the industries of the state. It seems a 
 safe prediction that if the Long Sault project is not 
 undertaken as a private enterprise, it will never be 
 undertaken at all. 
 
 How far power projects which have been heretofore 
 carried out under authority of legislative acts (partic- 
 ularly those passed since 1882), and have involved the 
 use of navigable or potentially navigable streams, may
 
 274 PAPERS AND ADDRESSES 
 
 be affected by the Long Sault decision because the 
 grants have expressly or by implication thrown the 
 control of navigation into the hands of private cor- 
 porations, need not be particularly inquired into. 
 Suffice it to say that the decision creates doubt as to 
 whether some of the grants recently made which are 
 similar in character to that made to the Long Sault 
 Company, may not, under the principle announced in 
 the decision of the Court of Appeals, be made the sub- 
 ject of attack, since many of these grants, by implica- 
 tion no less strong than that made by the court from 
 the Long Sault charter, seem to have conferred upon 
 the grantees control of navigation.
 
 THE TOBACCO TRUST DECISIONS
 
 XII 
 THE TOBACCO TRUST DECISIONS 1 
 
 The decisions of the Supreme Court of the United 
 States in the Tobacco Trust cases 2 mark the opening 
 of a new phase in the enforcement of the Interstate 
 Commerce and the Sherman Anti-Trust Law. They 
 also set at rest three highly interesting and important 
 constitutional questions never before presented to the 
 court. 
 
 The first of these questions relates to the extent and 
 character of the inquisitorial power of a grand jury 
 under the Fifth Amendment of the Constitution. That 
 amendment provides that no person shall be held to 
 answer for an infamous crime "unless on a present- 
 ment or indictment of a grand jury. ' ' It was claimed 
 that by this provision the powers of a grand jury were 
 limited to those possessed by that body under the 
 common law, and that it could only act after a bill of 
 indictment had been submitted to it. That it had 
 power, in the absence of a specific charge, to inquire 
 whether a crime had been committed and, if so, who 
 committed it, was vigorously denied. The Supreme 
 Court, however, unanimously held that, under the prac- 
 tice almost universal in this country since the adoption 
 of the Constitution, a grand jury has broad inquisito- 
 rial powers, and that upon knowledge acquired either 
 by the observations of its members or by the evidence 
 of witnesses, it may indict, even though a specific 
 charge against a particular person has not previously 
 been before it. Authority is thus given for a general 
 
 i Reprinted from the Columbia Law Review of June, 100G. 
 2 Hale v. Henkel and McAlister v. Henkel, decided by the United 
 States Supreme Court, March 12, 1906. 
 
 277
 
 278 PAPERS AND ADDRESSES 
 
 investigation by a grand jury when it receives infor- 
 mation from any source which points to the probability 
 that some crime has been committed, even though the 
 criminal and the exact circumstances of the criminal 
 act are not known either to the prosecuting officer or to 
 the grand jury itself. 
 
 The second point decided by the court is that an offi- 
 cer of a corporation may not, in its behalf, plead a 
 privilege under the Fifth Amendment upon the ground 
 that his answers may tend to incriminate the corpora- 
 tion. This conclusion is based upon the view that the 
 constitutional privilege against self-incrimination is 
 personal to the witness and may not be asserted in be- 
 half of another. It was also decided that the Immu- 
 nity Act of 1903 applied to a proceeding before a grand 
 jury, and prevented a witness from asserting the privi- 
 lege of the amendment in his own behalf, the act afford- 
 ing him full protection from prosecution on account of 
 anything that he should testify to. 
 
 The remaining point settled by the decisions is that 
 the production by an officer of a corporation, under a 
 subpcena duces tecum, of documentary evidence belong- 
 ing to the corporation may not be objected to, except in 
 case of an abuse of the writ, either on the ground that 
 under the Fifth Amendment such evidence would tend 
 to incriminate the corporation, or that under the 
 Fourth Amendment such compulsory production would 
 constitute an unreasonable search and seizure of the 
 effects of the corporation. It was said in support of 
 this conclusion that there is a reserved right in the 
 government to require a corporation to disclose 
 whether it has abused its privileges and franchises en- 
 joyed in connection with commerce among the several 
 states. 
 
 That questions like these have not been decided be-
 
 THE TOBACCO TRUST DECISIONS 279 
 
 fore may seem strange ; but a glance at the history of 
 anti-trust and interstate commerce litigation affords 
 an explanation. 
 
 The Interstate Commerce Law 1 was passed in 1887 
 and the Sherman Law 2 in 1890, and since they went 
 into effect there have been comparatively few efforts 
 to enforce the criminal remedies which they prescribe. 
 Both Republican and Democratic administrations have 
 generally considered it sufficient to resort only to 
 the civil remedy of injunction. The Sugar Trust 
 (Knight), 3 the Kansas City Stock Yards, 4 the Addy- 
 ston Pipe, 5 the Trans-Missouri Freight Association, 6 
 the Joint Traffic Association, 7 and the Northern Secu- 
 rities cases 8 were suits for injunctions in which the 
 court had to consider specific and easily proven agree- 
 ments. In none of those cases was the policy of sup- 
 pressing the facts resorted to by the defendants, for 
 the reason, probably, that the corporations relied upon 
 the contention that, even conceding that they had made 
 the agreements, they were not in violation of the law. 
 It has been mainly since the law has come to be better 
 understood that notable instances have occurred where 
 great corporations have resorted to obstructive meas- 
 ures which would, if successful, make it difficult or 
 impossible to procure evidence by which the legality of 
 their acts may be tested. Questions like those in- 
 volved in the Tobacco Trust cases were not at first se- 
 riously pressed. 
 
 i 24 U. S. Stat, at Large 370. 
 2 26 Ibid. 209. 
 
 s United States v. Knight (1895) 156 U. S. 1. 
 
 * Catting v. Kansas City Stock Yards Company (1901) 183 U. S. 79. 
 sAddyston Pipe and Steel Company v. United States (1899) 175 U. 
 S. 211. ' 
 
 6 United States v. Trans-Missouri Freight Association, (1897) 166 
 U. S. 290. 
 
 7 United States v. Joint Traffic Association (1898) 171 U. S. 505. 
 
 s Northern Securities Company v. United States (1904) 193 U. S. 197.
 
 280 PAPEBS AND ADDEESSES 
 
 The scope and effect of the decisions will be better 
 understood from a fuller statement of the facts upon 
 which they were rendered, and of the views expressed 
 in the opinions of the court. 
 
 Licorice is an indispensable ingredient in the manu- 
 facture of tobacco. Its importation from Syria and 
 the Orient, where it is grown, and its sale in this coun- 
 try are under the control of the MacAndrews & Forbes 
 Company, one of the affiliated companies of the Ameri- 
 can Tobacco Company. Independent tobacco manu- 
 facturers assert that the latter company fixes for them 
 a burdensome price and limits the amount which they 
 may buy, while discriminating in favor of the trust 
 companies. Under these conditions the price of 
 licorice to the independent manufacturers has about 
 doubled. The government sought to ascertain from 
 Mr. Hale, the secretary of the MacAndrews & Forbes 
 Company, whether these results were brought about by 
 any agreement, combination or arrangement in viola- 
 tion of the law. He refused either to answer ques- 
 tions or to produce the books and documents of his 
 company, and Circuit Judge Lacombe, upon a pre- 
 sentment by the grand jury, committed him for con- 
 tempt. Hale obtained a writ of habeas corpus, and 
 from the order of Judge Wallace discharging the writ, 
 he appealed to the Supreme Court. 
 
 The McAlister case presented practically the same 
 question of law as the Hale case. McAlister was the 
 secretary of the American Tobacco Company. The 
 grand jury was proceeding against that company and 
 the Imperial Tobacco Company, which is a company 
 occupying in England a position in the trade similar 
 to that of the American Tobacco Company here. The 
 subpoena required the production of certain agreements 
 made in 1902, which allotted to the British Company
 
 THE TOBACCO TRUST DECISIONS 281 
 
 all of the English business and to the American Com- 
 pany all of the American business, a reservation being 
 made that the British Company could enter the Amer- 
 ican field, but only for the purpose of purchasing 
 tobacco leaf. The agreements further provided that 
 the Imperial Company should act as sole agent in 
 England of the American Company for the sale of 
 Havana and Porto Rico cigars and cigarettes (subject 
 to the significant exception "that if at any time the 
 prices of cigars or cigarettes sold to any country not 
 affecting British trade shall be temporarily reduced 
 for the purposes of competition, such local and tempor- 
 ary reduction is not to be taken into account for the pur- 
 pose of fixing the price of cigars and cigarettes sold to 
 the Imperial Company"), and that the services of the 
 Imperial Company as agent would be satisfactory if it 
 should sell seventy-two per cent, of the total annual 
 importations into the United Kingdom, this provision 
 being based upon the " belief and assumption that the 
 American Company and its affiliated companies control, 
 or will shortly control, not less than eighty per cent, 
 of the aforesaid annual importations." 
 
 Counsel for Hale and McAlister contended, as al- 
 ready stated, that an officer of a corporation could as- 
 sert, in behalf of the corporation, the privilege under 
 the Fifth Amendment. On the other hand, the govern- 
 ment claimed that the historical origin of that amend- 
 ment shows that it was only designed to save a witness 
 from being placed at a disadvantage on the witness 
 stand through confusion or ignorance or anxiety, and 
 from being thus led to make ambiguous or suspicious 
 statements ; that the rule was adopted to avoid the de- 
 moralizing effect on the administration of justice of a 
 resort to browbeating and abuse, and, perhaps, to some 
 form of torture; that the immunity was designed to
 
 282 PAPERS AND ADDRESSES 
 
 encourage persons to come forward and volunteer their 
 testimony; and, finally, that none of these considera- 
 tions made it appropriate to apply the rule for the 
 benefit of a corporation. Adopting this view the 
 Supreme Court held that ' ' the right of a person under 
 the Fifth Amendment to refuse to incriminate himself 
 is purely a personal privilege of the witness. . . . The 
 question whether a corporation is a 'person' within the 
 meaning of this amendment really does not arise, ex- 
 cept, perhaps, where a corporation is called upon to 
 answer a bill of discovery, since it can only be heard by 
 oral evidence in the person of some of its agents or 
 employees. The amendment is limited to a person 
 who shall be compelled in any criminal case to be a 
 witness against himself, and if he cannot set up the 
 privilege of a third person, he certainly cannot set up 
 the privilege of a corporation. ' ' 
 
 This view of the court is in accord with the tendency 
 of modern judicial opinion. Chief Justice Appleton, 
 speaking of the privilege, said that "the interests of 
 justice would be little promoted by its enlargement." 
 Judge Thompson said still more emphatically "But 
 such a maxim has no place in an enlightened and 
 humane system of jurisprudence. We have outgrown 
 it." And Professor Wigmore, in his admirable treat- 
 ise upon the law of evidence, speaking of the privilege, 
 said: 
 
 "We are to respect it rationally for its merits, not wor- 
 ship it blindly as a fetish. . . . Indirectly and ultimately it 
 works for good — for the good of the innocent accused and of 
 the community at large. But directly and concretely it works 
 for ill — for the protection of the guilty and the consequent 
 derangement of civic order. ' ' x 
 
 13 Wigmore on Evidence 3101.
 
 THE TOBACCO TRUST DECISIONS 283 
 
 And again the same author says : 
 
 "To invoke the sentiments of lofty indignation and of 
 courageous self-respect against the arbitrary methods of royal 
 tyrants and religious bigots, holding an inquisition to enforce 
 cruel decrees of the prerogative, and torturing their victims 
 with rack and stake, is fitting and laudable, and moves men 
 with a just sympathy. But to apply the same terms to the 
 orderly, everyday processes of the witness stand, in a com- 
 munity governing itself in freedom by the will of the majority 
 and having on its statute book no law which was not put there 
 by itself and cannot be repealed to-morrow — a community, 
 moreover, cursed above others, by constant evasion of the 
 law and by overlaxity of criminal procedure — this is to mal- 
 treat language, to enervate virile ideas, to abuse true senti- 
 ment, to degrade the Constitution, and to make hopeless the 
 correct adjustment of the best motives of human nature to the 
 facts of life." 1 
 
 The remaining question decided by the court, viz., 
 whether the Fourth Amendment, prohibiting "unrea- 
 sonable searches and seizures," could be availed of by 
 a corporation through one of its officers commanded 
 by a subpoena duces tecum to produce its papers and 
 documents, recalls two of the most interesting crises 
 in the events leading to the establishment of the prin- 
 ciples of Anglo-Saxon liberty. The famous Wilkes 
 agitation was aimed at the practice whereby the Secre- 
 tary of State, an officer of the English crown, assumed 
 to issue general warrants to search the premises of 
 persons suspected of criminal libel for the purpose of 
 discovering evidence. The decision of Lord Camden, 
 in Entinck v. Carrington, 2 denounced such warrants 
 as in violation of the principles of English constitu- 
 tional law. At about the same time a similar agitation 
 
 i Ibid. 3107. 
 
 2 (1705) 19 State Trials 1030.
 
 284 PAPERS AND ADDRESSES 
 
 arose in Massachusetts in opposition to the issuance by 
 the courts of writs of assistance to custom-house officers 
 enabling them to search suspected places for smuggled 
 goods. It was in Paxton's Case 1 that Otis delivered 
 his famous speech in opposition to such writs, and the 
 insistence of the crown upon their validity was one 
 of the principal grounds of complaint by the colonists 
 against the rule of Great Britain in this country. The 
 Fourth Amendment is an embodiment of the principles 
 established in England in Entinck v. Carrington, and 
 in this country by the Revolution. 
 
 It was contended by the government in the tobacco 
 cases that the principle underlying the Fourth Amend- 
 ment did not limit the power of the judiciary, proceed- 
 ing in the ordinary way through a writ of subpoena 
 duces tecum, to compel the production in court of 
 documentary evidence, that writ having existed from 
 time immemorial in England and long before the gen- 
 eral warrants denounced in the Wilkes case had come 
 into use. Without such writs, as was said in a leading 
 case, it would be "utterly impossible to carry on the 
 administration of justice." The Supreme Court 
 adopted that view. But it went still further and held 
 that in respect of the production of books and papers 
 in court there was a clear distinction "between an in- 
 dividual and a corporation and that the latter has no 
 right to refuse to submit its books and papers for an 
 examination at the suit of the state. The individual 
 may stand upon his constitutional rights as a citizen. 
 He is entitled to carry on his private business in his 
 own way. His power to contract is unlimited. He 
 owes no duty to the state or to his neighbors to 
 divulge his business, or to open his doors to an in- 
 vestigation, so far as it may tend to criminate him. 
 
 i (1761) Quincy's Mass. Reports 51 and Appendix 395.
 
 THE TOBACCO TRUST DECISIONS 285 
 
 He owes no such duty to the state, since he receives 
 nothing therefrom, beyond the protection of his life and 
 property. . . . 
 
 1 ' Upon the other hand, the corporation is a creature 
 of the state. It is to be presumed to be incorporated 
 for the benefit of the public. It receives certain spe- 
 cial privileges and franchises, and holds them subject 
 to the laws of the state and the limitations of its 
 charter. Its powers are limited by law. It can make 
 no contract not authorized by its charter. Its rights 
 to act as a corporation are only preserved to it so long 
 as it obeys the laws of its creation. There is a re- 
 served right in the legislature to investigate its con- 
 tracts and find out whether it has exceeded its powers. 
 It would be a strange anomaly to hold that a state, 
 having chartered a corporation to make use of certain 
 franchises, could not in the exercise of its sovereignty 
 inquire how these franchises had been employed, and 
 whether they had been abused, and demand the produc- 
 tion of the corporate books and papers for that pur- 
 pose. . . . While an individual may lawfully refuse to 
 answer incriminating questions unless protected by an 
 immunity statute, it does not follow that a corporation, 
 vested with special privileges and franchises, may re- 
 fuse to show its hand when charged with an abuse of 
 such privileges." The court further held that while 
 the franchises of a corporation might be derived under 
 the laws of one of the states, yet such franchises were 
 to be exercised in subordination to the power of Con- 
 gress to regulate commerce, and added: 
 
 "In respect to this, the general government may also assert 
 a sovereign authority to ascertain whether such franchises 
 have been exercised in a lawful manner, with due regard to 
 its own laws. Being subject to this dual sovereignty, the 
 general government possesses the same right to see that its own
 
 286 PAPERS AND ADDRESSES 
 
 laws are respected as the state would have with respect to the 
 special franchises vested in it by the laws of the state." 
 
 The court said that it did not intend to intimate that 
 the general government "has a general visitatorial 
 power over state corporations," but added that it did 
 not wish to be understood "as holding that an examina- 
 tion of the books of a corporation, if duly authorized 
 by act of Congress, would constitute an unreasonable 
 search and seizure within the Fourth Amendment." 
 
 Mr. Justice Harlan and Mr. Justice McKenna con- 
 curred in the opinion of the majority of the court, but 
 held that the protection of the Fourth Amendment did 
 not extend to corporations in any case and also ex- 
 pressed somewhat different views of the question 
 whether the subpoena duces tecum in the Hale case w r as 
 too broad and indefinite. 
 
 Mr. Justice Brew r er wrote a dissenting opinion in 
 which the Chief Justice concurred. These justices held 
 that the immunities and protection of Articles Fourth, 
 Fifth and Fourteenth of the Amendments to the Fed- 
 eral Constitution are available to a corporation "so 
 far as in the nature of things they are applicable," al- 
 though they agreed with the majority of the court that 
 the protection accorded by the Fifth Amendment is 
 personal to the individual and does not extend "to an 
 agent of an individual or justify such agent in refusing 
 to give testimony incriminating his principal." But 
 Justice Brewer referred to the cases holding that the 
 word "person" used in the Fourteenth Amendment in- 
 cluded corporations and concluded that it must also 
 include "corporations when used in the Fourth and 
 Fifth Amendments." The dissenting justices also 
 held that while a power of supervision of a corporation 
 did exist, yet it belonged solely to the state by which
 
 THE TOBACCO TRUST DECISIONS 287 
 
 it was chartered and that in such case the national gov- 
 ernment had no power of supervision or investigation. 
 
 The court has never before had occasion to express 
 its opinion upon the question thus decided. It has 
 always been supposed that Congress could, under the 
 commerce clause of the Constitution, require corpora- 
 tions to comply with statutory regulations as condi- 
 tions precedent to their engaging in interstate trade, 
 as, for instance, that they should subject their books 
 and papers relative to interstate trade to examination 
 by an administrative officer of the government. But 
 it has never before been decided that the fact that a 
 corporation has, without an express franchise from the 
 national government, engaged in trade among the 
 states, imposes upon it an obligation in a judicial pro- 
 ceeding different from that resting upon an individual 
 in similar circumstances to disclose its affairs. The 
 importance and far-reaching effect of the decision can- 
 not be overestimated and it must inevitably result in 
 making the subjection of state corporations engaged in 
 interstate trade to the authority of the national gov- 
 ernment much more complete than it has hitherto been. 
 
 A matter of great interest from the legal and histor- 
 ical standpoint is revived by the reference of the court 
 to the famous opinion of Mr. Justice Bradley in the 
 Boyd x case. In that case the federal government 
 sought to obtain certain documentary evidence in a 
 suit to recover a penalty under the revenue law, which 
 provided that the court on motion of the government's 
 attorney should have power to require the defendant 
 to produce in court his private books, invoices and 
 papers, and that on failure so to do the allegations of 
 the government's attorney should be taken as con- 
 fessed. Justice Bradley held that this constituted an 
 
 i Boyd v. The United States (1885) 11G U. S. 616.
 
 288 PAPERS AND ADDRESSES 
 
 unreasonable search and seizure in violation of the 
 Fourth Amendment and was also in violation of the 
 Fifth Amendment in that it compelled a person to be 
 a witness against himself in a criminal case. It was 
 not necessary for the decision of the case to hold more 
 than that there had been a violation of the privilege of 
 the Fifth Amendment ; and upon this ground alone Mr. 
 Justice Miller and Chief Justice Waite concurred in 
 the judgment of the court. Justice Bradley, however, 
 said that the two amendments "run almost into each 
 other" and that they ''throw great light on each other. 
 For the 'unreasonable searches and seizures' con- 
 demned in the Fourth Amendment are almost always 
 made for the purpose of compelling a man to give evi- 
 dence against himself, which in criminal cases is con- 
 demned in the Fifth Amendment. . . . And we have 
 been unable to perceive that the seizure of a man's 
 private books and papers to be used in evidence against 
 him is substantially different from compelling him to 
 be a witness against himself." 
 
 But as has been pointed out before, the Fourth and 
 the Fifth Amendments had entirely different historical 
 origins. The protection of the Fifth Amendment is 
 complete without any resort to the Fourth Amendment. 
 It had been recognized at least a century before the 
 occasion arose for the principle of the Fourth Amend- 
 ment. Wilkes was obliged to resort to the law against 
 unlawful searches and seizures only because, as the in- 
 criminating documents had been taken from his posses- 
 sion, he was given no opportunity as a witness to ob- 
 ject to their use as being in violation of his privilege 
 against incrimination. Furthermore, the seizure of 
 the papers in the Wilkes case was not under an order 
 of the court, but under executive authority. In the
 
 THE TOBACCO TRUST DECISIONS 289 
 
 Boyd case, however, the statute without compelling the 
 production of the papers declared that the failure to 
 produce them should create a conclusive presumption 
 of guilt. This was clearly in violation of the Fifth 
 Amendment. But there was no reason for resorting to 
 the Fourth Amendment, or, in the words of Professor 
 Wigmore, attempting "to wrest the Fourth Amend- 
 ment to the aid of the Fifth." Justice Bradley in 
 effect rested his conclusion upon the proposition that 
 objection to the admission of evidence could be based 
 upon the illegal method by which it was obtained. But 
 the Supreme Court has since decided the contrary. 1 
 Nor is the motive with which illegal evidence is ob- 
 tained a ground of objection. In the Wilkes case the 
 motive was no doubt to obtain incriminating evidence, 
 but the illegal act was committed before the evidence 
 was offered in court. As is said in May's "Constitu- 
 tional History of England," the objection was that the 
 ministers of the crown did not wait "to inquire after 
 the accustomed forms of law. ' ' Often, if not generally, 
 a warrant of search or seizure is for the very purpose 
 of obtaining incriminating evidence. The Fourth 
 Amendment recognizes that such a search and seizure 
 may be reasonable and lawful. 
 
 The two amendments, then, do not "run almost into 
 each other," nor does the one amendment throw light 
 upon the other. The Fourth Amendment does not help 
 out the Fifth Amendment merely because a search or 
 seizure which is unreasonable is declared to be un- 
 lawful, nor does the Fifth Amendment help out the 
 Fourth Amendment by permitting the search or seizure 
 to be declared unreasonable upon the grounds of in- 
 crimination. The contrary expressions in the Boyd 
 
 i Adams v. New York (1903) 192 U. S. 585.
 
 290 PAPERS AND ADDRESSES 
 
 case were not necessary to the decision of that case. 
 
 Furthermore, in the Baird case, 1 which was not very 
 different in its facts from the Hale case and where the 
 objection was urged that an officer of a corporation 
 should not be required to produce the books of the 
 corporation, the court said that "the testimony given 
 under such circumstances presents scarcely a sugges- 
 tion of an unreasonable search or seizure.'' 
 
 The decisions in the Adams case and the Baird case 
 thus seem to make the decision in the Boyd case rest 
 alone upon the Fifth Amendment and prevent the ex- 
 tension of the Fourth Amendment beyond the limits 
 justified by its historical and political origin. 
 
 These views were urged upon the Supreme Court in 
 the Hale and McAlister cases in the expectation that 
 some definite limits might be placed upon the Boyd de- 
 cision. But while the court quotes Judge Bradley's 
 language, in which he says that the two amendments 
 are interdependent, it does not distinctly say whether 
 his view is still adhered to. It does, however, use this 
 significant language: "Subsequent cases (Adams and 
 Baird) treat the Fourth and Fifth Amendments as 
 quite distinct, having different histories, and perform- 
 ing separate functions." It would have done much to 
 clear the atmosphere if the court had distinctly said 
 that the language of the Boyd case as to the relation 
 between the Fourth and the Fifth Amendment should 
 be regarded as obiter. So long as the court continues 
 to render such decisions as those in the Adams, Baird 
 and Hale cases, and the broad language of the Boyd 
 case is allowed to stand only as a piece of judicial 
 rhetoric, no serious harm will be done. But to permit 
 the words of a learned and eminent jurist like Mr. 
 Justice Bradley to remain without express limitation 
 
 i Interstate Commerce Commission v. Baird (1904) 194 U. S. 25.
 
 THE TOBACCO TRUST DECISIONS 291 
 
 is a source of embarrassment to the lower courts and 
 their litigants, which is unfortunate and which might be 
 easily removed. 
 
 The decisions in the Hale and McAlister cases have 
 placed in the hands of the government a potent weapon 
 to compel obedience to the law. How it shall be used 
 will largely depend upon the attitude of the trusts 
 themselves. A just and wise enforcement of the com- 
 merce laws did not require an immediate resort to crim- 
 inal remedies, and circumstances may still exist where 
 the policy of the law may be effectively carried out by 
 means of injunctive relief. The commerce laws deal 
 with a regulation of interstate trade entirely new a 
 generation ago. Business dealings which had before 
 been regarded as justifiable both in morals and law, 
 became in a day mala proliibita. Multitudes of trans- 
 actions, which had not been in their general effect in- 
 jurious to trade, were declared to be illegal, not because 
 they were intrinsically immoral, or even under ordinary 
 conditions in violation of wise economic principles, but 
 because they enabled powerful corporations, by the 
 aggregation of an immense amount of capital, to op- 
 press, and ultimately to exterminate, the less powerful. 
 It was a serious matter to prohibit by law methods of 
 business which had prevailed for many years ; and the 
 immediate and drastic enforcement of such a law, a 
 reasonable public opinion would neither have demand- 
 ed nor tolerated. It has taken years to establish the 
 principles upon which it must be determined what con- 
 stitutes a combination in restraint of interstate trade 
 which is prohibited by the commerce acts. But they 
 are now so far settled that little excuse will hereafter be 
 afforded to a person or corporation for pleading ignor- 
 ance of them; and there can be no complaint of hard- 
 ship if, for violations of the law in clear cases, criminal
 
 292 PAPERS AND ADDRESSES 
 
 penalties should be rigorously imposed. It is undoubt- 
 edly the fact that a large number of great corporations 
 have in good faith obeyed the law as its scope and 
 meaning have come to be understood, and it is to be 
 hoped that those which still stubbornly resist its en- 
 forcement will finally submit to a legislative policy 
 which is undoubtedly sanctioned by an almost universal 
 public opinion. But if they do not, and if they continue 
 to withhold information as to their transactions, they 
 must expect that such conduct will be accepted as proof 
 that they propose still to defy the law. The import- 
 ance of the tobacco trust decisions to defeat any such 
 disloyal policy can hardly be over-estimated. 
 
 It cannot be assumed that the decisions will remove 
 all difficulties in enforcing the law. It is not probable 
 that corporations will any longer incur the risk of 
 making formal written agreements which are unlawful ; 
 but if they are determined to defy the law they will 
 probably resort to more obscure and ingenious exped- 
 ients. Evidence of such devices may not be easy to 
 secure ; yet the difficulty has now been greatly lessened. 
 If the trusts are still able to avoid a disclosure of their 
 affairs, it may be that some appropriate legislation may 
 be necessary by which they shall not be permitted to 
 engage in interstate trade except upon the condition 
 that their affairs shall be subjected to such visitatorial 
 power on the part of the administrative branch of the 
 government as may be necessary to discover from time 
 to time whether they are obeying the law. Whether 
 public opinion will demand the enactment of such a 
 law largely depends upon the future conduct of corpor- 
 ations in withholding information and in resisting the 
 efforts of the Department of Justice to compel obedi- 
 ence to the law.
 
 ADDRESS AT THE ANNUAL DINNER OF THE 
 NEW YORK STATE BAR ASSOCIATION, 1919
 
 XIII 
 
 ADDRESS AT THE ANNUAL DINNER OF THE 
 NEW YORK STATE BAR ASSOCIATION, 1919 
 
 REMARKS OF HENRY W. TAFT X 
 
 Mr. President and Ladies and Gentlemen : I have 
 a deep sense of my unworthiness to preside over this 
 great organization. Your own distinction, Judge 
 Hughes, at the bar, in executive office, on the bench and 
 in the public life of our country, has been so notable 
 that the Association enhanced its own importance in 
 selecting you as its president. I have no such basis 
 for the distinguished honor conferred upon me, and I 
 can only hope, by devotion to the interests of the asso- 
 ciation, to compensate in some small measure for the 
 advantage of having as its presiding officer a great 
 public figure like yourself. 
 
 As Chairman of the Committee on Law Reform it has 
 been my duty to examine numerous projects for the re- 
 form of the law, and when I contemplate the oppor- 
 tunities thus presented for alluring experimentation, I 
 am amazed at the moderation of my recommendations. 
 The vexed subject of procedure has also fallen to my 
 lot, and I have made some effort to clear away the 
 underbrush obstructing the pathway to legal rights. 
 So I have had the opportunity for making trouble, and 
 I am not sure that the nominating committee did not 
 conclude that the best way to avoid complications was 
 by a diplomatic promotion. 
 
 The achievements of the bar during the war have 
 been noteworthy. The fact that thirty per cent, of the 
 lawyers of the country between twenty-one and thirty- 
 
 i Delivered at the Forty-second annual meeting held in New York City 
 January 18, 1919. 
 
 295
 
 296 PAPERS AND ADDRESSES 
 
 one years of age were actually inducted into the army 
 — a proportion far greater than that in any other occu- 
 pation — gives testimony of their patriotism ; while the 
 most heroic individual episode of the war is that of the 
 Lost Battalion in the Argonne Forest, led by a modest 
 young lawyer of this city — Colonel Whittlesey. Such 
 things show that the pursuit of our learned profession 
 does not subdue the promptings of a high patriotism 
 or the will to make even the supreme sacrifice. 
 
 A British publicist has recently said that one of the 
 miracles of the war was the raising of an army of over 
 three millions of men in America. The raising of this 
 army by enforced draft was due entirely to American 
 initiative. One of the fundamental duties of citizen- 
 ship in a democracy is by serving as a soldier to aid in 
 preserving the principles on which such a government 
 is founded. This principle was embodied with the 
 broadest vision in the Selective Service Law and it was 
 carried out with no internal disturbance and with the 
 least possible impairment of the industrial forces of 
 the country. This truly wonderful achievement re- 
 quired the intuition and training of the soldier, the 
 broad vision of a constructive statesman, and the pro- 
 fessional skill of a trained lawyer, and the man was 
 found in the great lawyer-soldier, Major General Enoch 
 Ii. Crowder, the Provost Marshal General. His serv- 
 ices in making the United States a potent factor in the 
 winning of the war may fairly be ranked with the 
 achievements of General Pershing himself. 
 
 It was General Crowder 's foresight that brought the 
 legal profession to the aid of the government. In the 
 complicated machinery of the Selective Service plan he 
 assigned to each member of the bar what he called "a 
 definite place and duty in the winning of the war." 
 Out of 131,909 lawyers in this country, 125,100 re-
 
 STATE BAR ASSOCIATION, 1919 297 
 
 sponded to his call. Never before was such an oppor- 
 tunity offered to lawyers to render service for which, 
 by education and training, they were especially fitted ; 
 and they rendered it patriotically and without reward 
 other than the satisfaction of a duty well performed. 
 As in the days of the Roman Republic, members of 
 the noblest families trained to the law gave free advice 
 to the people in the Forum, so twenty centuries later 
 the American bar has placed its services at the disposal 
 of the people of this country in the task of building up 
 an army to preserve modern civilization. 
 
 What public service remains for the American law- 
 yer? In a crisis like that of to-day the highest concep- 
 tion of professional duty requires the lawyer to con- 
 tribute to the thought of the country upon questions of 
 public policy, for they are indissolubly linked with the 
 subjects of his study and of his practice. President 
 Wilson once very truly said that : 
 
 "The notable, I had almost said fundamental, circum- 
 stance of our political life is that our courts are, under our 
 constitutional system, the means of our political development. 
 Every change in our law, every modification of political prac- 
 tice, must sooner or later pass under their scrutiny. We can 
 go only as fast as the legal habit of mind of our lawyers will 
 permit. Our politics are bound up in the mental character 
 and attitude and in the intellectual vigor and vision of our 
 lawyers. Ours is so intensely and characteristically a legal 
 polity that our politics depend upon our lawyers. They are 
 the ultimate instruments of our life." 
 
 But James Bryce has noted, and we all know how 
 truly, the decline of the bar as a social influence, on ac- 
 count of its ''diminished political authority." This 
 condition bodes no good for our country. Never has 
 there been a greater need for the exercise of the highest 
 function of the American lawyer. Never before has it
 
 298 PAPERS AND ADDRESSES 
 
 been so necessary that he should think in terms of 
 statesmanship and should stimulate the thought of 
 others upon the great questions of the day. Never 
 before that he should be in the highest places in the 
 legislative and executive branches of our government. 
 In the process of adjusting itself to peace conditions, 
 the country must, as never before, concern itself with 
 its international relations, and it must guard at home 
 against any impairment of the liberty of the citizen. 
 It must adjust the relations between the government 
 and the transportation companies. It must reconsider 
 the whole subject of combinations in restraint of trade. 
 It must adopt a fiscal policy adapted to the enormous 
 financial burden cast upon us by the war. It must 
 bring the rights of labor and those of capital into 
 equilibrium. It must guard our institutions against 
 the menace of Bolshevism. And it must preserve the 
 authority of our courts against the invasion of novel 
 and destructive theories. 
 
 To the extent that lawyers aid unselfishly and effect- 
 ively in the solution of such great problems as these, 
 to that extent, and to that extent only, will they place 
 themselves in the position of influence which the bar 
 occupied in the first half of the history of the nation. 
 But they must move out of the atmosphere of private 
 interests and not let their opinions on public questions 
 be fettered by the pecuniary interests of their clients, 
 or confine their thoughts as citizens upon great consti- 
 tutional questions of the day within the narrow channel 
 of personal interest. Above all things they must have 
 courage and initiative. They must not only contribute 
 to the discussion, but they must lead in a constructive 
 way. If they do this, they may again find themselves 
 the most influential element for good in our body 
 politic.
 
 PRESIDENT'S ADDRESS AT THE ANNUAL 
 
 DINNER OF THE NEW YORK STATE 
 
 BAR ASSOCIATION, JANUARY 17, 1920
 
 XIV 
 
 PRESIDENT'S ADDRESS AT THE ANNUAL 
 
 DINNER OF THE NEW YORK STATE 
 
 BAR ASSOCIATION, JANUARY 17, 1920 
 
 Gentlemen of the Bar Association and Our Guests : 
 I first wish to express my high appreciation of the 
 honor of being your president. I have valued the 
 distinction and the opportunities of the office. I lay it 
 down with a higher idea of the usefulness and the possi- 
 bilities of the Association. 
 
 To our guests we extend a warm welcome. I espec- 
 ially greet the ladies. The solace of having them at 
 our side we know. We men are now concerned lest we 
 may not get them on our side. 
 
 The times are full of matters of interest to lawyers. 
 Some we mention with hesitation. 
 
 Last year we debated the League of Nations, and, as 
 Judge Hughes said at our last dinner, "no fatality re- 
 sulted." I am not sure that a debate now would be 
 equally free from casualties. 
 
 Another condition I forbear to enlarge upon. Our 
 friend Mr. Wadhams, usually optimistic, feared that it 
 might have a withering effect upon the joy of this oc- 
 casion. Your numbers, however, belie his forebodings. 
 Perhaps it is because lawyers believe as Wordsworth 
 would have put it : 
 
 "The good die first, 
 And they whose throats are dry as summer dust 
 Burn to the socket." 
 
 The war has brought the political, social and indus- 
 trial affairs of the world into an abnormal state of un- 
 
 301
 
 302 PAPERS AND ADDRESSES 
 
 rest. In Russia the revolt against the old order can- 
 not be dismissed with the formula that her people 
 should work out their own salvation, because its psy- 
 chological effect has permeated far beyond Russia it- 
 self. 
 
 The Bolshevists proclaim to the world that ordered 
 liberty, as the rest of the world understands it, is a 
 mere gesture or metaphor ; that freedom of speech and 
 of the press, the equal protection of the laws, the right 
 to assemble and to petition the government, the prohi- 
 bition of unreasonable searches, seizures, and cruel and 
 unusual punishments, and the safeguarding of life, lib- 
 erty or property by due process of law, merely facili- 
 tate the infliction of injustice. 
 
 They would substitute the despotism of the prole- 
 tariat over every other class, the subversion of all 
 freedom, morality and religion, and they would con- 
 temptuously reject patriotism and love of country as 
 a moral force. But the most amazing thing is that 
 they seek to perpetuate their rule, not by the consent 
 of the governed, but by the will of a small minority sus- 
 tained by force. 
 
 Lenin himself has boasted that control of 180,000,000 
 of people is in the hands of not more than 200,000 in- 
 dustrial workers in the cities. This is made possible 
 by giving the Red Army extraordinary privileges in 
 the material things of life, and by vesting in them eight 
 times the political power of the industrial workers in 
 the city and eighty times that of the peasants who 
 constitute 90 per cent, of the population. 
 
 This rule of the minority was accomplished not so 
 much by military force as by industrial strikes. The 
 new possibilities in the use of that weapon have no 
 doubt had a psychological relation to certain phases of 
 recent strikes in other parts of the world.
 
 STATE BAR ASSOCIATION, 1920 303 
 
 In England the coal strike and the railroad strike 
 struck at the very life of the British people, who had 
 to unite in self -protection to avoid the terrible effects 
 of a fuel famine and of the paralysis of the transporta- 
 tion system. The police strike in London threatened 
 to overthrow law and order. The Boston police strike 
 was a similar movement, of which Governor Coolidge 
 truly said: " There is no right to strike against the 
 public safety by anybody anywhere at any time. " The 
 coal strike here became a matter of national concern, 
 not because the employers were illegally threatened by 
 loss, but because the vital necessities of the public com- 
 pelled them to become a party to a controversy in 
 which they had no other concern. 
 
 Our great business combinations, the interlocking of 
 our essential industries, their interdependence and the 
 far-reaching effect of an interference with the func- 
 tioning of any of their parts, make a great strike to-day 
 of far greater moment than at any time in our history. 
 Whether a check in our industrial life result from the 
 unreasonable, selfish or arbitrary policy of employers, 
 or from the ill-considered or tyrannous action of the 
 employees, in either case it tends to deprive the people 
 of the right to pursue happiness in their own way, and 
 our government ceases to derive its "powers from the 
 consent of the governed,' * but from the dictation of a 
 group. 
 
 No one now denies the right of industrial workers 
 to unite to better their condition. But if in increasing 
 their participation in the profits and management of 
 industries they do not avoid excessive and unreason- 
 able resort to strikes, we shall come perilously near a 
 condition where minorities and not majorities rule. 
 
 Another subject engages the attention of the public. 
 
 We are in a maelstrom of constitutional agitation.
 
 304 PAPERS AND ADDRESSES 
 
 If we could personify our fundamental charter our 
 emotions would be repeatedly aroused by its merciless 
 pulling and hauling. No question of vital national im- 
 portance arises that does not evoke divergent views. 
 One school of publicists insists upon the most extreme 
 remedies that can be invoked for the cure of our ills. 
 Another stands aghast at the remedies proposed by 
 alarmists as an assault upon the most cherished prin- 
 ciples of civil liberty. 
 
 Thus, perhaps, the police are a little indiscreet and 
 arrest a few fanatical but harmless paraders. A sensi- 
 ble police magistrate discharges the prisoners with an 
 apology, and with good humor admonishes the police. 
 But straightway persons charged by Divine Providence 
 with the custody of the charter of our liberties spring 
 forth and announce that the curtain has fallen on the 
 last act of the tragedy of the Constitution. And even 
 one of our great journals gives up the game in these 
 despairing words : 
 
 "There is no freedom of speech or of the press left, ex- 
 cept by consent of government. Police authority everywhere 
 is denying to small minorities whose doctrines are unpopular 
 the right of free speech. . . . 
 
 "Plainly, the American people are getting away from first 
 principles ; they are forgetting their traditions and losing sight 
 of their ancient landmarks." 
 
 Without the conviction of a single person, without 
 the menace of a doubtful statute, without a decision of 
 the tribunal whose decisions have ever kept the prin- 
 ciples of civil liberty undefiled, the right of ' 'freedom 
 of speech or of the press' y suddenly becomes, to all in- 
 tents and purposes, deleted from the scroll of the Con- 
 stitution. And yet, in the journals which our busy life
 
 STATE BAR ASSOCIATION, 1920 305 
 
 permits us to read, we daily wade through columns of 
 print going to the very verge not of freedom, but of 
 license. And this free discussion will go on unchecked, 
 except as the Supreme Court recently said, that the 
 law will "not protect a man in falsely shouting fire in 
 a theatre and causing a panic." 
 
 Now look at the other side of the picture. 
 
 Seventy bills are introduced in Congress, inspired by 
 a determination to suppress by the most violent per- 
 missible means the menace of Bolshevism. Acts class- 
 ified as sedition are by some of these bills even declared 
 to be treason and punishable by death. Socialist as- 
 semblymen are put to the proof of their patriotism 
 before being permitted to represent their constituents. 
 And radicals all over the country are herded in one 
 grand spectacular roundup. 
 
 But no accused person can suffer unless he not only 
 intends, but attempts by violence, to overthrow our 
 institutions. None of the seventy bills has been 
 passed, nor will any one find himself in jail until the 
 Supreme Court says they are constitutional. The 
 herded Bolshevists are entitled to writs of habeas 
 corpus, whether they are citizens or aliens. And the 
 Assemblymen may acquire such fame as martyrs as 
 they never before dared to aspire to. 
 
 Such agitations are not a menace to our institutions. 
 They test their value. Only by discussion of some 
 concrete question can the interest of the American 
 people as to the meaning and application of the Consti- 
 tution be aroused. By that process, however, they can 
 always be depended upon to understand the nature of 
 our institutions. We must not, therefore, despair if in 
 open discussion there is exaggeration and if desperate 
 remedies are suggested. That is inevitable. But by
 
 306 PAPERS AND ADDRESSES 
 
 the ultimate settlement of the ever-recurring problems 
 of government by constitutional methods, our institu- 
 tions constantly gain in stability. 
 
 We hear much in these post-war days of American- 
 ism. But mere emotional response to noble sentiments 
 of patriotism will not avail to protect the body politic 
 against assaults upon our institutions, unless they be 
 followed by enlightened constructive effort. Insidious 
 influence sometimes emanates even from pulpits, col- 
 leges and public prints. The parlor Bolshevists add 
 a gloss of respectability, of culture, of religion, and 
 even of a spurious patriotism, to the efforts of both the 
 ignorant alarmist and the disloyal agitator. Too often 
 they confuse the Soviet Ark with the Mayflower. 
 
 With such influences at work the most useful kind 
 of Americanism that I know is that which, inspired by 
 adherence to our national traditions, insists upon san- 
 ity in counsel and steadiness in act. And there is no 
 class in the community so well fitted by education, ex- 
 perience and temperament as lawyers for the discharge 
 of that lofty function.
 
 ADDRESS AT THE DINNER 
 TO JUDGE O'BRIEN
 
 XV 
 
 ADDRESS AT THE DINNER 
 TO JUDGE 'BRIEN * 
 
 The committee which arranged this dinner has had 
 some troubles, and its chairman has asked me to an- 
 nounce that several disquieting things have happened 
 without its fault. The purpose in giving this dinner 
 was to tender a tribute to the Honorable Morgan J. 
 O'Brien, and yet the committee feels much aggrieved 
 to find that Hamlet doesn't figure on the first page of 
 the program, and the chairman has asked me to an- 
 nounce that this is entirely through a printer's error. 
 However, I think that is a matter which the honorable 
 gentleman can outlive. 
 
 There is another subject which causes us all keen 
 regret, and that is the enforced absence of the honored 
 president of this association, Judge Cullen. He cer- 
 tainly is the " grand old man" of this organization 
 and, barring the question of age, may be deemed to 
 be one of the grand old men of our profession. At 
 the last moment however, he was obliged to give up 
 being here because a sickness which has detained 
 him at home for some days finally led the doctor to 
 advise him that he must seek another climate. The 
 sudden call upon me as vice president of the associa- 
 tion to take Judge Cullen 's place raised with me the 
 question which has excited so much attention lately; 
 that is, the question of preparedness, and I have really 
 never had so much apprehension about it as I have 
 
 i Remarks of Mr. Taft, toast-master, at the Annual Bar Dinner 
 of the New York County Lawyers' Association, given in honor of Hon. 
 Morgan J. O'Brien, February 26, 191(i. 
 
 309
 
 310 PAPERS AND ADDRESSES 
 
 to-night. However, I must do the best I can. Mr. 
 Strauss, my fellow vice president, and myself have 
 had something of a stage play as to which of us would 
 preside, but his modesty has prevailed. 
 
 I have a diffidence about addressing you gentlemen. 
 And yet you don't seem so very formidable. I have no 
 such hesitation about addressing the courts, so numer- 
 ously represented here to-night, but that is a matter of 
 habit. When it comes to addressing the keen intel- 
 lects of the bar, however — well, I hesitate. I am re- 
 minded of a story that Lord Campbell relates of Lord 
 Eldon. He was obliged to address a goldsmiths' din- 
 ner, and was in a high state of trepidation. He said : 
 "I had just as lief address the members of Parliament 
 or the law lords in Parliament as I would so many 
 cabbage plants, but I find a great diffidence about ad- 
 dressing the goldsmiths." I have the same feeling 
 to-night. 
 
 I understand that Judge Cullen, who, in his way, 
 is a little bit of a martinet on such occasions as this, 
 has taken pains to write to each of the speakers and 
 place a limit of time upon them. I don't know what 
 the limit is ; I haven 't asked any questions ; but, what- 
 ever it is, I am going to remove it. I think a fair spirit 
 of reciprocity to the judges of the Appellate Division, 
 which has now so generously extended the time for 
 arguments of counsel, demands that all limits on the 
 length of the speeches to-night, at least of those of 
 the judges, should be removed. So, as Shakespeare 
 says, gentlemen, you will for the time being have to 
 take your place on the " windy side of the law." But 
 I will venture a story in that connection. 
 
 There come to New Haven from time to time on 
 Sundays representatives of rural churches to address 
 the students in the chapel of Yale College. The tend-
 
 DINNER TO JUDGE O'BRIEN 311 
 
 ency of the rural preachers to extend their sermons is 
 not a thing which is congenial to the students. On one 
 occasion one of these preachers came to New Haven 
 who had a little bit more consideration than is usually 
 characteristic of that class of pulpit orators, and he 
 said: "Mr. Hadley, is there any limit of time that is 
 imposed upon the ministers when they address the 
 students ? ' ' " Oh, no, not any limit at all, ' ' Mr. Hadley 
 said, "but I think I ought to say to you, sir, that there 
 is a tradition that no souls are ever saved after fifteen 
 minutes. ' ' 
 
 Now, I hope that the gentlemen who are to come 
 after me don't take these remarks as personal. Per- 
 haps they would say that I am talking too long myself 
 and that I had better sit down. However, I want to 
 say a word about what this and other associations have 
 been doing this year. A good many of us in this Asso- 
 ciation have been drawing reform constitutions for the 
 state and reform projects of procedure, and, like the 
 three tailors of Tooley Street, we have presented them 
 to the world with some circumstance; and nothing 
 more has happened. But it has all been beneficial. 
 Subjectively it has done those of us who have done the 
 work some good. It has cultivated our power of legal 
 analysis. It has given us an opportunity of exercising 
 our originality. And originality and the power of an- 
 alysis are great things in the law — of a great deal more 
 significance oftentimes than deadly precision. Of the 
 reasons that are given to support the opposing conten- 
 tions of counsel, one or the other must of necessity be 
 wrong, and we half the time give reasons that prove to 
 be bad. I always believed in that form of instruction 
 in the law which gave credit for reasons whether right 
 or wrong. I remember there was an old lawyer who 
 used to be a professor in the Cincinnati Law School
 
 312 PAPERS AND ADDRESSES 
 
 when I attended there. His name was Judge Yaple, 
 and he especially believed in the value of originality of 
 thought. He always gave credit to his students for 
 it. I remember on one occasion he asked a student 
 what was the difference between a conditional limita- 
 tion and a contingent remainder, and the student an- 
 swered, " Damned little," and he gave him fifty per 
 cent. 
 
 Mr. Choate has characterized this Association as the 
 great democratic association of the state. I choose to 
 think that there is no democracy or aristocracy in our 
 profession except the aristocracy of character and fidel- 
 ity and public service. But what Mr. Choate meant 
 was that this Association was more compre- 
 hensive in its membership than any other asso- 
 ciation, certainly than any other active day-to-day 
 association in this country, and I want to say just 
 a word in favor of such associations. They do great 
 good. No individual among us can attempt to ex- 
 tend the sphere of his influence very widely in a popu- 
 lation like the city of New York of six millions of in- 
 habitants. The bar here now approaches twenty thou- 
 sand members. It becomes absolutely essential for the 
 preservation of the moral health of our profession 
 that we should associate ourselves together in order to 
 defend the standards of correct conduct by which we 
 should all be guided. Indifference to matters of 
 ethical conduct and professional conduct is sure to 
 grow up in a profession of the size of that in this city 
 unless its individual members have some consciousness 
 that there are those in the profession watching over 
 them and vigilant to restrain them from lapsing into 
 practices which would do the profession no credit. In 
 a bar of two or three hundred I conceive that such asso- 
 ciations are little needed ; but in a bar so numerous as
 
 DINNER TO JUDGE O'BRIEN 313 
 
 ours we need associations of the members of the bar to 
 organize against the invasion of our profession by im- 
 proper practices. I, for one, would like to join other 
 similar associations that would include the entire bar 
 of the city in order that by concerted efforts we might 
 have a substitute for that kind of public opinion which 
 prevails at a smaller bar and which restrains members 
 within the correct lines and holds them up to the highest 
 standards of professional ethics. Such associations if 
 properly conducted are an effective means to prevent 
 the bar from falling into disrepute on account of that 
 small minority who do not hold its traditions pure. 
 Now, this Association has been at the forefront in de- 
 veloping a system of professional ethics. It is a pretty 
 elaborate system. The Committee on Professional 
 Ethics has been doing grand work in keeping out of the 
 profession those who are attempting to commercialize 
 it and those who are attempting to bring the prac- 
 tice of the law into the hands of the corporations. I 
 wish to speak also of the work of the City Bar Associa- 
 tion — I think the two associations have supplemented 
 each other and have done splendid work, and I am glad 
 to have the opportunity of paying this tribute to them 
 both.
 
 SPEECH OF MR. HENRY W. TAFT
 
 XVI 
 SPEECH OF MR. HENRY W. TAFT 1 
 
 Mr. President, Mr. Ambassador, Mr. Minister, Ladies 
 and Gentlemen : When your president asked me to 
 say a few words to-night, I had no idea that I was to 
 have the pleasure of attending a function of such 
 splendor as this, nor did I at all appreciate the strength 
 and dignity and importance of this organization. I 
 told the president that I would take pleasure in saying 
 a word of greeting as I had arrived fresh from your 
 native land. I wish I could address you in French, 
 but the only French that I know I learned in French 
 Canada, and while the Canadians say that theirs is the 
 French of Moliere and that it is the Parisian French 
 that has become corrupted in these hundreds of years, 
 yet I am afraid that if I attempted to speak the Cana- 
 dian French I might incur the hostility of these formid- 
 able military guards that I have seen standing here, 
 whose duty it is, no doubt, to protect among other 
 things, the purity of the French language. 
 
 As the Ambassador has said, I have come direct from 
 the Chicago convention and so I might have said some- 
 thing about politics ; but the president of your associa- 
 tion was good enough to send me a copy of your year 
 book, and I there observed, at a page which he had 
 considerately turned down, a by-law which was worded : 
 "All political discussions are excluded." Further- 
 more, perhaps you are not interested in politics. 
 We become sometimes preoccupied with our own 
 environment and mistakenly think everybody is in- 
 
 i Delivered before the American Chamber of Commerce in Paris, July 
 4, 1912. 
 
 317
 
 318 PAPERS AND ADDRESSES 
 
 terested in those things that we ourselves are en- 
 grossed with. In that connection I might mention the 
 experience that my wife had on the steamer coming 
 across the ocean, when she sat beside a lady with whom 
 she entered into casual conversation. She was an 
 American lady who was on her way to her twentieth 
 cure at Carlsbad, and my wife said to her among other 
 things that we had been to the Chicago convention. 
 The lady quite opened her eyes and asked: "That was 
 a convention of doctors, was it not?" 
 
 I had the pleasure of meeting in New York the dele- 
 gates who were sent to the Champlain Tricentenary, 
 and amongst others my very distinguished friend 
 upon my left. I attended the function in their honor, 
 and I think our hospitalities were pretty persistent and 
 they displayed unusual endurance. As I stand here I 
 am reminded of a speech — I think it was Baron d'Es- 
 tournelles de Constant who made the speech, or perhaps 
 it was one of the other distinguished gentlemen. He 
 quite seriously discussed the question of the high cost 
 of living, which subject has very much interested our 
 country, as well, I think, as all other countries of the 
 world. He said: "If you would send your American 
 women to learn the economy of the French women you 
 would take a step in advance." My experience with 
 the French women has not yet convinced me of the 
 truth of his remark, but I must say to you that so far 
 as I myself am concerned, my experience has been with 
 the French women who keep the shops in the Rue de 
 la Paix, and I have not found them especially good 
 teachers of economy. 
 
 Mr. President, I am a member of the committee 
 which has been appointed to secure for the United 
 States the celebration of a saner Fourth of July. We 
 seek less noise and more sentiment, more expression of
 
 SPEECH OF MR. HENRY W. TAFT 319 
 
 patriotism which will recall to our memory those great 
 men who have given us the priceless boon of liberty 
 regulated by law. Such an occasion as this I count as 
 most useful in that direction, and I hope that we in 
 America may emulate the example of the American 
 Chamber of Commerce in Paris in celebrating this 
 great anniversary by recalling to mind, as the eminent 
 gentlemen here present have already so eloquently 
 done, the principles that those wise men of one hundred 
 and thirty years ago embodied in that great instrument 
 of free government, the Constitution of the United 
 States, and the sentiments which they expressed in 
 that eloquent dissertation upon the rights of man, the 
 Declaration of Independence. 
 
 This Chamber of Commerce can perform a most use- 
 ful function in continuing the present friendly rela- 
 tions between France and America. I cannot, at this 
 late hour, go over the various possible fields of its use- 
 fulness ; but, to mention one, in the important question 
 of the tariff, your body can do much to eliminate the 
 misunderstandings that constantly arise in relation to 
 the trade between the two countries. We are surely 
 approaching an era in our country where the schedules 
 of our tariff will be based upon the strictest investiga- 
 tion of the facts, and that is a most difficult thing under 
 present conditions. We have, however, established a 
 Tariff Commission, whose duty it is to investigate cost 
 of production and cost of manufacture. A body like 
 yours can be most useful in aiding such a commission 
 in ascertaining facts, and if the facts be ascertained 
 beyond dispute, our Congress cannot resist the force 
 of public opinion in considering them in framing the 
 schedules of the tariff law. If that be done, and if 
 the principle of our protection be preserved upon such 
 a basis, nobody can complain. Then another aid to
 
 320 PAPERS AND ADDRESSES 
 
 international commerce or trade is the representation 
 to the French public of the facts in relation to Amer- 
 ican securities. I am glad to observe that in recent 
 years there has been an effort to introduce on the 
 French market our American corporate securities, and 
 this body can be most useful in eliminating misunder- 
 standings that may easily arise in relation to them. 
 
 I cannot close without one word on another subject 
 of the highest importance, and in relation to which no 
 man in the world has rendered such valuable services 
 as my distinguished neighbor, Baron d'Estournelles de 
 Constant. That is the subject of arbitration. At this 
 moment, perhaps, in the stress of political campaign, 
 the subject will be lost sight of. It has suffered some 
 vicissitudes in the Senate of the United States, but I 
 feel confident that its trials are but temporary, and 
 that with the aid and the cooperation of France and 
 other nations we can, for peace 's sake, ultimately have, 
 with all of the great nations, arbitration treaties 
 which will reduce the risks of war to a minimum. 
 In that connection I think we are to be congratu- 
 lated that our countrymen have now in charge of the 
 diplomatic negotiations such able representatives as 
 Governor Herrick and Mr. Jusserand. Governor Her- 
 rick I have known for many years. I am sure you 
 will come to like him as much as we all have come to 
 like him in our country. France ought to feel compli- 
 mented that she has succeeded in getting Governor 
 Herrick. I betray no state secret, because it is known 
 in our country, that the suggestion has been made 
 that he should represent our government at the court 
 of some of the other great nations of the Conti- 
 nent, but that he has always withstood the temptation, 
 and until now America has not been able to avail of his 
 services. I know he feels in sympathy with the spirit
 
 SPEECH OF MR. HENRY W. TAFT 321 
 
 of the French people, and I feel confident that he will 
 soon acquire their language and will no longer modestly 
 attribute the success of his public addresses to the ad- 
 mirable eloquence, as an interpreter, of Baron 
 d'Estournelles de Constant. Mr. Jusserand I know 
 very intimately. We are all very devoted to him 
 in America. He knows our foibles and he does not 
 hesitate in his most good-natured way and without 
 bitterness to call our attention to them. He is per- 
 sona grata of the most pronounced type to our gov- 
 ernment and to our people. He has done much to pro- 
 mote arbitration treaties, and I feel sure will do more. 
 Among other things, and I say this after I have lis- 
 tened to the eloquent words of my friend the Baron, 
 few American orators can compare with Mr. Jusserand 
 in beauty of diction and in eloquence when he speaks in 
 English. With two such representatives as these, it 
 would seem a fair promise that the relations between 
 these two countries should become warmer and warmer. 
 I thank you, ladies and gentlemen, for your attention.
 
 JOHN LAMBERT CADWALADEB 
 
 An Appreciation
 
 XVII 
 JOHN LAMBERT CADWALADER 
 
 An Appreciation * 
 
 John Lambert Cadwalader had none of that kind of 
 reputation which sometimes vaguely emerges from the 
 glamour of public life ; for he had held but one office 
 and that for only a brief period many years ago. But 
 his services to institutions for the dissemination among 
 the people of knowledge and culture, his leadership in 
 his profession, the influence of his interesting person- 
 ality and high character, and the friendship and respect 
 which he commanded among the foremost men of his 
 time, justly entitle him to be regarded as an American 
 citizen of high distinction. 
 
 Mr. Cadwalader was born at Trenton on November 
 17, 1836, and died in the city of New York on March 11, 
 1914, in the seventy-eighth year of his age. His an- 
 cestors had from Colonial days been persons of conse- 
 quence in Pennsylvania and New Jersey. He grad- 
 uated at Princeton College in 1856; and he was for 
 many years one of its most active trustees. He at- 
 tended the Harvard Law School ; and after graduating 
 there he practiced law in New York City until he be- 
 came, in 1874, Assistant Secretary of State of the 
 United States, in the administration of General Grant, 
 After leaving the State Department in 1876 he made 
 a journey of observation around the world, during 
 which he visited many interesting places in the Orient 
 not then readily accessible. Upon his return to New 
 
 i Paper read at the opening of the Trenton Public Library, April 6, 
 1915. 
 
 325
 
 326 PAPERS AND ADDRESSES 
 
 York he resumed the practice of law. In 1869 he had 
 been one of the small number of lawyers who united 
 in founding the Association of the Bar of the City of 
 New York, which grew out of a movement to elevate 
 the judiciary of the state which had fallen into dis- 
 repute during the Tweed regime. Many years after- 
 ward he became the President of the Association — an 
 honor generally regarded as denoting leadership at 
 the Bar of New York. 
 
 That Mr. Cadwalader gained high repute as a lawyer 
 was not due to exceptional erudition nor yet to un- 
 common powers of advocacy. It was still less due to 
 his willingness to yield to the tendency of modern con- 
 ditions which too often obscure high professional ideals 
 by expecting from a lawyer that he shall also be a man 
 of business or even have some share in his client's en- 
 terprises. But Mr. Cadwalader was one of the old type 
 of lawyers who assisted their clients to a wise solu- 
 tion of their difficulties or, if a contest was inevitable, 
 delighted to "strive mightily" for the protection of 
 their rights. His ability to summarize and state to a 
 court in terse and incisive phrase the substance of a 
 controversy was surpassed by few, if any, lawyers of 
 his time, while his instinctive sense of justice gave him 
 a grasp of principle which made him less prone than 
 most men to a reliance upon a "codeless myriad of 
 precedents." No lawyer could more readily (I had 
 almost said gayly) divest himself of the encumbrance 
 of technicalities and penetrate to the heart of a situa- 
 tion. While he was practical, sympathetic and always 
 helpful, he never resorted to indirection or other tor- 
 tuous expedients. He was especially effective where 
 seemingly irreconcilable differences were to be com- 
 posed. In such matters he long occupied a unique posi- 
 tion as an adviser; and with years and experience he
 
 JOHN LAMBERT CADWALADER 327 
 
 grew to be one of those rare individuals whom a com- 
 munity invests with the character of a sage. 
 
 But it is his unselfish and fruitful services to the 
 public that compel us to pay signal honor to his mem- 
 ory. His reputation was closely linked with the New 
 York Public Library, and at the time of his death he 
 was President of its Board of Trustees. More, per- 
 haps, than to any other man was it due to him that that 
 institution was established on a foundation broad and 
 permanent. This was the culmination of many years 
 of useful service to the public libraries of the city. 
 And those who seek in heredity the springs of human 
 action will find peculiar interest in the fact that Mr. 
 Cadwalader's great-grandfather, Dr. Thomas Cadwal- 
 ader, for many years a Colonial Councillor of Pennsyl- 
 vania, was one of the first board of directors of The 
 Library Company of Philadelphia, founded in 1731 
 largely through the efforts of Benjamin Franklin, who 
 describes it in his autobiography as the "mother of all 
 North American subscription libraries," and in the 
 further fact — of especial interest on this occasion — 
 that this same Doctor Cadwalader, having been in 1746 
 the first Burgess of Trenton, himself established in 
 that place, prior to 1750, a public library, some of the 
 volumes of which are still extant. While these early 
 essays in librarv work were for many years necessarilv 
 on a limited scale, they contained the germ of an idea, 
 long since generally accepted, that it is necessary to 
 afford to a self-governing people opportunities for en- 
 lightenment, if their institutions are long to endure. 
 And it is of the greatest interest to contrast the pioneer 
 efforts of Franklin and his coadjutors in 1731, with 
 the foundation, nearly two centuries later, of the mag- 
 nificent institution in New York which, in the oppor- 
 tunities extended to the public for learning and re-
 
 328 PAPERS AND ADDRESSES 
 
 search, and in the convenient access to good literature 
 afforded by the circulating department, promises soon 
 to surpass any similar institution in the world. 
 
 Mr. Cadwalader had been a trustee of the Astor 
 Library, and early saw the importance of finding some 
 means of availing of a large bequest of Samuel J. Til- 
 den, so that it could be used in bringing together 
 the Lenox Library, the Astor Library and a large 
 number of smaller libraries in one vast institution. 
 Many legal difficulties had to be removed by legisla- 
 tion, which was largely devised by him. When that 
 was obtained it still remained to weld together the 
 existing libraries, many of which were loath to surren- 
 der their autonomy and independence. Due largely, 
 however, to the constructive genius of Mr. Cadwalader 
 and to his indomitable persistence, tactful wisdom and 
 practical experience, a plan was carried through by 
 which there was established upon an enduring founda- 
 tion one of the greatest consultation and circulating 
 libraries of modern times. The difficulties in reaching 
 this result seemed at the outset insurmountable; and 
 the solution of the problem, as the then President of 
 the United States said at the public opening of the 
 library building, " required genius and statesman- 
 ship. ' ' 
 
 The rare aptitude of Mr. Cadwalader for work of this 
 character led to his services being much sought for in 
 connection with other institutions of a public, though 
 not of a political or governmental, character. At the 
 time of his death he was a trustee of the Metropolitan 
 Museum of Art, the American Museum of Natural His- 
 tory and the New York Zoological Society, all in the 
 city of New York; while he was closely connected as 
 trustee with the organization and management of the 
 Carnegie Institution of Washington, and the Carnegie
 
 JOHN LAMBERT CADWALADER 329 
 
 Endowment for International Peace. The duties of 
 these trusteeships were never performed in a perfunc- 
 tory manner ; for he devoted much of his time to them, 
 being always one of that minority upon whom the 
 burden of such work usually falls and on whose en- 
 thusiasm successful results always depend. Of frail 
 physique, the burden was heavy, but his was a spirit 
 which would not suffer, to the day of his death, even a 
 partial retirement from such activities as these. 
 
 Three universities, Pennsylvania, Princeton and 
 Harvard, conferred upon Mr. Cadwalader the degree 
 of LL.D. He was justly proud of this distinction ; for 
 while his achievements were of undoubted merit they 
 were not of the kind which usually evoke academic 
 honors from so many of our great universities. 
 
 Mr. Cadwalader was the intimate friend and con- 
 stant companion of many of the most eminent men in 
 the councils of the nation and in the world of science 
 and art. Such Americans as his brother-in-law Dr. 
 Weir Mitchell, Colonel Higginson, Frank Millet, Dr. 
 Billings, J. Pierpont Morgan, Senator Root, James C. 
 Carter, Dr. McBurney, Whitelaw Reid and Joseph H. 
 Choate were some of those numbered among his com- 
 panions; while at his hospitable home in the Scotch 
 Highlands he gathered Englishmen distinguished in 
 statesmanship, art and learning. Among these he was 
 esteemed for his high character, his brilliant wit, the 
 constancy of his friendship, his refined but cordial hos- 
 pitality and his wise counsels. He had a genius for 
 friendship, and was a believer in the saying that "life 
 is to be fortified by many friendships." He had great 
 vivacity in conversation ; and his pointed comment and 
 witty repartee constantly enlivened the circle of his 
 friends. This is an aspect of his personality which 
 only those who enjoyed his intimacy can well appre-
 
 330 PAPERS AND ADDRESSES 
 
 ciate; for the play of his wit was so spontaneous and 
 its point so dependent on its pertinency to a quickly 
 passing situation, that an attempt to reproduce in- 
 stances would do him scant justice ; and yet this quality 
 played a large part in making him a charming compan- 
 ion. His devotion to the rod and the gun must receive 
 a word, since salmon fishing, grouse shooting and other 
 such diversions he truly loved ; and he had difficulty in 
 seeing how there was any salvation for a man whose 
 soul was dead to the fascination of such sports. 
 
 The way in which Mr. Cadwalader expressed his 
 intention to make a gift to this library cannot but 
 evoke a smile from those who knew him well, for it 
 recalls the amusingly ingenious ways in which he con- 
 cealed his benefactions or disparaged his acts of per- 
 sonal kindness. He desired, as he wrote to your presi- 
 dent, that the library should be made "as efficient as 
 any in the state," that he should have "no recognition 
 in any way," because he had "no motive other than 
 to benefit the subject." And he would have depre- 
 cated, probably forbidden, such a demonstration as 
 this ; for in such things he was diffident to the point of 
 shyness, and more than content with a sense of duty 
 well performed. 
 
 It was his devotion to the place of his birth, mingled 
 with a just pride in his New Jersey ancestors, that 
 turned his mind to the historical city of Trenton and 
 led to the benefaction which made possible the com- 
 pletion of this beautiful and commodious library build- 
 ing. In the Revolutionary War, in the establishment 
 of our national government and in the public affairs of 
 our national government and in the public affairs of 
 New Jersey and Pennsylvania, the Cadwalader family 
 had borne a conspicuous part. He was accustomed to 
 say of his forbears that they had done "something of
 
 JOHN LAMBERT CADWALADER 331 
 
 account, ' ' usually adding, as if to disavow an intention 
 to boast, a humorous comment on some foible which 
 family tradition had preserved. But in truth his an- 
 cestors had enjoyed distinction in the affairs of state 
 and nation and were of those entitled to stand high in 
 the ranks of that kind of aristocracy which exacts high 
 ideals, self-abnegation and patriotic, faithful and effi- 
 cient service. To such ancestors as these a lofty monu- 
 ment might have fitly been erected, but it would have 
 been alien to his nature for him to preserve their mem- 
 ory in that way ; for his whole life showed his belief that 
 "monuments themselves memorials need." And no 
 memorial could be more true to the character of John 
 L. Cadwalader than that which associates him and his 
 family name with the idea of service to the people of 
 this city by affording to them an adequate opportunity 
 for the pursuit of knowledge. 
 
 PRINTED IN THE UNITED STATES OF AMERICA
 
 H 
 
 THE LIBRARY 
 
 UNIVERSITY OF CALIFORNIA 
 
 Santa Barbara 
 
 STACK COLLECTION 
 
 THIS BOOK IS DUE ON THE LAST DATE 
 STAMPED BELOW. 
 
 
 
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