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Full text of "Ethics in service [electronic resource]"

EX LIBRIS 

THE UNIVERSITY 

OF CALIFORNIA 



FROM THE FUND 

ESTABLISHED AT YALE 

IN 1927 BY 

WILLIAM H. CROCKER 

OF THE CLASS OF 1882 

SHEFFIELD SCIENTIFIC SCHOOL 

YALE UNIVERSITY 



ETHICS IN SEEVICE 



PAGE LECTURES 

PUBLISHED BY YALE UNIVEESITY PRESS 



MOEALS IN MODERN BUSINESS. Addresses by Edwaed 

D. Page, George W. Alger, Henry Holt, A. Barton Hepburn, 
Edward W. Bemis and James McKeen. 

(Second printing) ISmo, cloth binding, leather label, 162 pages, 
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EVERYDAY ETHICS. Addresses by Norman Hapgood, Joseph 

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TRADE MORALS: THEIR ORIGIN, GROWTH AND 
PROVINCE. By Edward D. Page. 

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ETHICS IN SERVICE. By William Howard Taft. 

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ered. 



ETHICS IN SERVICE 



BY 



William Howard Taft 



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




NEW HAVEN : YALE UNIVERSITY PRESS 

LONDON: HUMPHREY MILFORD 

OXFORD UNIVERSITY PRESS 

MDCCCCXV 






^yf^ ^Mj^j^ 



Copyright, 1915 
By Yale University Press 



First printed October, 1915, 1000 copies 



PREFACE 

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



6465*J2 



CONTENTS 



I. History of the Profession of Law 

II. Legal Ethics .... 

III. The Executive Power 

IV. The Signs of the Times . 
V. More Signs of the Times 



PAGE 
1 

19 
37 
65 

83 



ETHICS IN SERVICE 



CHAPTER I 
HISTORY OF THE PROFES.SION/OFLAW;' 

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

We have all noted on the stage and in the cur- 
rent literature the flippant and sarcastic refer- 
ences to the failures of the administration of 
justice, and we are familiar with the sometimes 
insidious and too often open impeachments of the 



2 ETHICS IN SERVICE 

courts, whicli appear in tlie press and upon the 
hustings. They are charged with failure to do 
justice, with bad faith, with lack of intelligent 
sympathy fo'* socially progressive movements, 
with a rigid and reactionary obstruction to the 
movement tov/ard greater equality of condition, 
and with a hidebound and unnecessarily sensitive 
attitude of mind in respect to the rights of prop- 
erty. One count that looms large in the wide 
range of the indictment against our judicial 
system is the immoral part that lawyers are said 
necessarily to play in the perversion of justice 
by making the worse appear the better reason. 
Such a public agitation and such an issue in 
politics lead to a consideration of the fundamental 
reasons for the existence of our profession in the 
past, and a further inquiry as to the need for it 
in the future, as preliminary to a discussion of 
the rules of conduct that should govern its 
practice. 

There are those who intimate that we can learn 
nothing from the past. They don't say so in so 
many words, but they proceed on the theory that 
man, under the elevating influences with which 
they propose to surround him, is suddenly to 
become a different creature, prompted by different 
motives. But those of us who have been fortunate 
in having an education permeated with an atmos- 
phere of common sense, and an idea of how to 



HISTORY OF THE PROFESSION OF LAW 3 

deal with human nature as it is, realize that the 
world is not to be reformed tomorrow or in a 
month or a year or in a century, but that progress 
is to be made slowly and that the problems before 
us are not so widely different from those which 
were presented to our ancestors as far back as 
the Christian era. Nor can we fail to derive some 
benefit from a consideration of such troubles, 
tribulations and triumphs of our profession in 
the past as suggest rules of conduct for lawyers 
in the future. I do not mean that we are not to 
aspire for better things. Nor do I wish to deny 
us the happiness of hope for reasonable and real 
progress toward higher ideals. I simply insist 
that we ought not to ignore the lessons of expe- 
rience when we deal with conditions as they are 
and as everybody who is familiar with them 
knows them to be. 

. The three civilizations in which we may most 
profitably study the growth and development of 
the legal profession are the Jewish, the Eoman 
and the English. Among the Jews, the Mosaic 
law, which went into the smallest details of per- 
sonal life, was the guide to their rule of action. 
As it had religious sanction, the high priests 
became the actual ministers of justice and the 
preservation of religion and law was united in 
them. Acting as their assistants, and as assessors 
in the tribunals of which the high priests were 



4 ETHICS IN SERVICE 

the head, were the Scribes. They were learned in 
the law; had a religious and priestly character 
themselves; interpreted the Mosaic law with a 
view to its application to the various facts and 
issues which arose; and were in addition the 
teachers of law. It was to them that the rabbinical 
injunction w^as made ^^to make the knowledge of 
the law neither a crown wheremth to make a 
show, nor a spade wherewith to dig.^/ And again 
it was said, ^^He who uses the crown of the law 
for external aims fades away.'' 

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

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

Verse 52. ^^Woe unto you, lawyers! for ye 
have taken away the key of knowledge : ye entered 



HISTORY OF THE PROFESSION OF LAW 5 

not in yourselves, and them that were entering 
in ye hindered. ^ ^ 

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



6 ETHICS IN SERVICE 

of those days in an indefensible position and led 
to the attacks upon them that we find in the New 
Testament. 

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

In the year 200 before Christ, the Cincian law 
was enacted, requiring that service of the patronus 
and the advocate should be gratuitous, but it was 
soon evaded even as the Jewish laws had been. 



HISTORY OF THE PROFESSION OF LAW 7 

Again presents were made to secure the skilled 
advocacy of men learned in the law and acute in 
debate. These gifts like the Hebrew ones were 
paid in advance and were called '4ionorariums,'' 
another term which suggests the modern retainer. 
Neither an advocatus nor a patronus could sue for 
such honorarium at law because it was a violation 
of law, but once paid, the honorarium could not be 
recovered. Cicero boasted that he never violated 
the Cincian law, but historians of his period inti- 
mate that by secret loans and testamentary gifts 
his practice proved to be very profitable. And it 
is certain, at least, that many of his contempo- 
raries were made very rich by professional 
remuneration. Augustus directed the passage of 
another law forbidding compensation to orators 
and advocates, but it was disregarded and subse- 
quent emperors contented themselves with fixing 
limits for the fees to be charged. In the golden 
age of the Roman law, therefore, the payment of 
the profession became recognized as legitimate 
and the profession itself became a definite body 
with clearly understood functions. 

In England, for two hundred years after the 
Conquest, the priests were the only learned men, 
and they, too, like the Scribes, acted as judges 
and advisers of litigants. Even as late as the time 
of Henry VIII, as we know, the Keeper of the 
Eang's Conscience and the head of the Court of 



8 ETHICS IN SERVICE 

Equity, was an Ecclesiastic in the formidable 
person of Cardinal Woolsey. About the reign 
of King John, laymen became lawyers, and 
in Henry III^s time the Pope forbade priests to 
fit themselves in civil law or to act as advisers 
in respect to it. We may properly say that the 
profession of the Bar, as a recognized English 
institution, had its beginnings in the struggle for 
individual rights by which the English race 
forced the great charter from King John. We 
find that in the history of the early English 
administration of justice, bailiffs, undersheriffs, 
clerical attaches and the underlings of the courts 
had gone into the business of acting as attorneys, 
of cheating their clients, and of stirring up 
litigation. While statutes were directed against 
their abuses, I cannot find that there was any 
English statute forbidding lawyers to receive 
compensation for their services, although the 
action of the Pope in forbidding his priests to 
study and practice law in England may indicate 
some such abuses. It is certain that legal services 
were not regarded as creating a debt due from 
the client to the lawyer who had served him. By 
statute, now, attorneys and solicitors in England 
are entitled to fixed fees for professional services. 
But in the case of barristers, down to the present 
time, while they may demand a retainer for their 
services in advance, they still cannot recover by 



HISTORY OP THE PROFESSION OF LAW 9 

suit if the services are rendered without receiving 
it. This may possibly be derived from the early 
Roman and Jewish view of the professional 
relation and suggests the probability that early 
in English history professional services were 
deemed to be gratuitous. 

The grant of Magna Charta by King Jolm, in 
response to the demand of the Barons at liunny- 
mede, gave birth to the Bar in its modern char- 
acter. Articles 17 and 18 of that instrument 
provided that Common Pleas should not follow 
the court of the Eang, but should be held in a 
certain place, and that trials upon certain writs 
should not be taken outside of their proper 
counties. It provided further that the King or 
the Chief Justice should send two justiciaries 
into each county, four times in the year, to hold 
certain assizes mthin the county, with four 
knights of the county, chosen by it, on the day, 
and at the place appointed. The 45th article 
promised that the King would not make Justi- 
ciaries, Constables, or Bailiffs excepting of such 
as knew the laws of the land and were w^ell 
disposed to observe them. The result of this 
provision by which Common pleas courts came 
to be held at Westminster, while regular assizes 
were held in the counties, w^as the establishment 
of the four Inns of Court, so-called, Lincoln's Inn, 
the Inner and the Middle Temple, and Gray's Inn, 



10 ETHICS IN SERVICE 

together with a number of others knoT\Ti as 
Chancery Inns, which have of late years dis- 
appeared. Henry III took these Inns under his 
especial protection and prohibited the study of 
law anywhere in London save in the Inns of Court. 
They were the homes of the Bar, for within their 
walls lawyers had their offices, and there students 
of the law received their education. In fact, they 
may be said to constitute the foundation of the 
modern profession of the law in the English- 
speaking race. 

The Inns of Court were at first an aristocratic 
institution, and only men of good blood were per- 
mitted to practice in them. Indeed, that was the 
case in the early days in Rome. Pliny reports 
that no one could become a jurist consult, an 
advocatus or a patronus except he be of the Patri- 
cian class. But soon after the Empire began, 
this rule broke down and the Roman Bar became 
open to all. So, too, in the English Bar at first 
admission was controlled by the Benchers or 
governing bodies of the Inns of Court and the 
students were chosen only from good families. 
It was probably this that led to their unpopularity 
and to the denunciation which they received in 
Wat Tyler's day, in the fourteenth century, and 
from Jack Cade's followers whom Shakespeare 
makes wish to kill all the lawyers in the next 
century. Their exclusive spirit passed away, 



HISTORY OF THE PROFESSION OF LAW 11 

however, and while aristocratic class distinctions 
were rigidly maintained in English society, the 
Bar became most democratic through the avenue 
to positions of highest influence on the Bench and 
in politics which it freely offered to able men from 
the people. And, indeed, there is no part of Eng- 
lish history that is so full of interest as the stories 
of her great lawyers, who, beginning in the 
humblest conditions of life, fought their w^ay by 
real merit into positions of control in the govern- 
ment and thus gave ability and strength to the 
aristocracy of which they became a part. 

In the three centuries or more after the estab- 
lishment of the Inns of Court, no division ap- 
peared in the profession of the law, and it was 
not until about 1556 that the profession became 
separated into attorneys at law and solicitors in 
chancery, on the one hand, and barristers on the 
other. The former dealt directly with clients and 
performed the preliminary work of drafting 
documents and preparing briefs, while the latter, 
the barristers, drafted the pleadings and pre- 
sented the causes in court. A similar division of 
functions prevailed in the Roman Bar. I shall 
have occasion later to comment on the advantages 
and disadvantages of this division, but this sum- 
mary reference is sufficient for my present 
purpose in tracing the history of the Bar in 
England. 



12 ETHICS IN SERVICE 

During this period, after the establishment of 
the Inns of Court, the unpopularity of the Bar 
manifested itself in the enactment of statutes 
forbidding the election of lawyers to Parliament. 
This gave rise to the noted Parliament known as 
the *^ Dunces Parliament,^' because everybody 
who knew anything about the law, and therefore 
about the framing or the operation of statutes, 
was excluded from membership. 

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

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

Milton wrote : 

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

As examples of a lawyer 's reputation in London 
in the seventeenth century, Mr. Warren cites the 
titles of the following tracts printed at that time : 
* ^ The Downfall of Unjust Lawyers " ; * ^ Doomsday 



HISTORY OF THE PROFESSION OF LAW 13 

Drawing Near with Thunder and Lightning 
for LaAvyers'^; ^*A Rod for Lawyers who are 
Hereby declared Robbers and Deceivers of the 
Nation^'; ^' Essay where is Described the Law- 
yers, Smugglers and Ofllicers Frauds.'* 

I note these facts as I progress to indicate and 
reinforce my original statement that the present 
time is not the only time in the history of civiliza- 
tion when la\^^ers have received the condemnation 
of their fellow subjects or fellow citizens. Yet 
not only has the profession survived such move- 
ments but its usefulness has been recognized in 
succeeding crises. 

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



14 ETHICS IN SERVICE 

for such reforms in the maintenance of free 
institutions. 

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

In this country, however, the Puritans and the 
Pilgrims approved of neither the common law nor 
the English judicial system, and as lawyers were 



HISTORY OF THE PROFESSION OF LAW 15 

only part of that system, they considered the 
abolition of the profession from their society as 
an end devoutly to be ^\dshed for and promptly 
sought. Among the Pilgrim fathers there was 
not a single lawyer, while among the Puritans 
there were only four or five who had been edu- 
cated as lawyers and even they had never prac- 
ticed. The consequence was that during the 
seventeenth century and far into the eighteenth, 
lawyers had little place in the social or political 
institutions of the colonies. In New England 
there was a theocracy. The judges — none of them 
la^\yers — were all either ministers or directly 
under the influence of the clergy. A colonial 
common law grew up among them, based on a 
theological reasoning and was really adminis- 
tered without lawyers. In the Massachusetts 
body of liberties, it was provided that a man unfit 
to plead might employ a person not objectionable 
to the Court to plead for him, on condition that 
he give him no fee or reward. In 1663 a usual or 
common attorney was prohibited from sitting in 
the general court. 

As society progressed, however, as commerce 
and trade increased, as wealth grew, as business 
transactions became more extended and as learn- 
ing spread from the clergy to other persons, 
opportunity and inducement were furnished for 
the study of the law, and professional training 



16 ETHICS IN SERVICE 

became more general. The crying need for a 
learned and honorable profession of the law was 
made manifest by the growth of a class of advo- 
cates and advisers whose influence was most 
pernicious. Litigants needed guidance in the pres- 
entation of their cases and no learned profession 
being available, the underbailiffs, undersheritfs, 
clerks and other underlings of the administration 
of justice began to practice, without real knowl- 
edge. Greedy and lacking in principle, they 
developed trickery and stirred up litigation for 
their own profit, just as their predecessors had 
done three hundred years before in England. 
Colonial statutes were then passed, forbidding 
such underlings of the court to practice law at all. 
But lawyers were not popular in colonial days 
even after the Bar became able and respectable. 
In fact a bitter spirit was manifested against 
lawyers even as late as Shays 's Rebellion after 
the Revolutionary War. 

Between the years 1750 and 1775, more than a 
hundred and fifty young men from the colonies 
were admitted to one of the four Inns of Court 
and became educated lawyers with the purpose 
of entering the profession in their native colonies. 
How far the presence of such a class of educated 
lawyers through the colonies contributed to the 
resentment against the stupidity and injustice of 
the English colonial policy which brought about 



HISTORY OF THE PROFESSION OF LAW 17 

the Revolution, cannot be estimated exactly; but 
certain it is that the preparation of the lawyers 
who were then in their prime appears to have 
been Providential interference in behalf of the 
people of the United States. Never in history 
has the profession of the law received so great a 
harvest of profound students of the constitutional 
principles of government as did our country at 
this time. Our lawyers signed the Declaration 
of Independence, served in the Continental Con- 
gress, acted as delegates to the Constitutional 
Convention, and met in the various conventions 
called by the states to consider the ratification 
of that great instrument. They not only knew 
that common law, but they had studied closely 
the political history of Greece and Rome, and 
were familiar with the principles of government 
as set forth by Montesquieu and Adam Smith. 

It was the American Bar that gave to the 
people of the United States such lawyers as 
Alexander Hamilton, John Jay, James Madison, 
George Mason, Thomas Jefferson, Patrick Henry, 
John Adams, James Otis, Samuel Chase, Samuel 
Adams, Roger Sherman, Oliver Ellsworth, James 
Wilson, Edmund Randolph and many others not 
less learned and brilliant, to establish their liber- 
ties, frame the limitations of their government 
and care for the protection of individual rights. 
The same Bar furnished a little later that la^vyer 



18 ETHICS IN SERVICE 

and judge, John Marshall, whose interpretation 
of the Constitution was as important in its 
beneficent effect as its original framing. That 
Bar not only helped largely in constructing the 
ship of state but it was also most instrumental in 
launching it on a triumphant and useful course 
through a century and a quarter. The profound 
gratitude of succeeding generations owing to such 
a Bar ought never to be dimmed by partisan or 
misguided diatribes upon lawyers and judges. 



CHAPTER II 
LEGAL ETHICS 

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

In the course of my consideration of this 
subject, I looked into a text-book on moral phi- 
losophy and the general system of ethics with the 
hope that I might find something there that would 



20 ETHICS IN SERVICE 

suggest, by analogy, a proper treatment of the 
subject in hand. I consulted Paulsen's **A 
System of Ethics. '^ The analogy between moral 
philosophy and legal ethics is not very close, but 
I found a passage or two bearing on this very 
issue, which it seems to me might not be inappro- 
priately quoted here. In the conclusion of his 
introduction, Paulsen says : 

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

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

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



LEGAL ETHICS 21 

To this view Paulsen replies : 

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

What is here said concerning the usefulness of 
an investigation of fixed ethical principles has 
application to a consideration of what rules of 
conduct should prevail in the legal profession. 
The high social purpose of the profession, its 
beneficial function, and the limitations upon its 
action that should be self-enforced in order to 
make the calling an advantage and not a detriment 
to the public weal, should be understood. Indeed, 



22 ETHICS IN SERVICE 

the profession of the law, if it serves its high 
purpose, and vindicates its existence, requires a 
double allegiance from those who have assumed 
its obligations, first, a duty toward their clients, 
and second, a duty toward the court. And though 
"the two sometimes seem to conflict, they must be 
reconciled in the way which will best promote 
the effective administration of justice and the 
peace of society. The path to be followed in 
achieving this golden mean in the intricacies of 
professional relations is not as manifest as the 
rule of honesty and morality in ordinary life. 
The great problem of government that is never 
completely solved and that is changing with 
changing conditions is how to reconcile the pro- 
tection of individual rights, helpful to the pursuit 
of happiness and the welfare of society, with the 
necessary curtailment of those rights and free- 
dom, by governmental restriction, to achieve the 
same object. So the adjustment of the duties of 
the lawyer toward his client and toward the court 
in the interest of society, are not always easily 
distinguishable and an attempt to make them 
clear, therefore, is justified. 

An understanding between the client and his 
representative that remuneration is a proper 
incident to their relation insures a greater confi- 
dence in the activity and devotion of his lawyer 
to his interest on the part of the client and 



LEGAL ETHICS 23 

stimulates industry and sincere effort on the part 
of the lawyer. It is far better that the employ- 
ment on a pecuniary basis should be understood 
by all men, by the courts and by the parties, than 
that some secret arrangements should exist un- 
known to the court and the opposing party. But 
it is said that to give to counsel, skilled, learned 
and familiar with the arts of advocacy and the 
preparation of cases, a pecuniary motive to make 
the worse appear the better reason, necessarily 
leads him to an attempt to influence the court 
against a just result. For since one or the other 
conclusion must be unjust, one of the paid attor- 
neys arguing the cause before the court must be 
arguing for the unjust side and in favor of wrong. 
Hence, it is claimed, the system of paid advocacy 
must in every case tend to an effort on one side 
or the other to pervert justice and mislead the 
judges into inequity and wrong. 

It may be agreed that if there were not certain 
limitations upon the means which counsel may 
take to maintain the justice of their clients' cause, 
if they were justified in suborning witnesses, and 
coaching them to testify to an unfounded state of 
facts, if they were permitted to misstate the 
e\ddence after it has been adduced, if it were 
regarded as proper for them to accept employ- 
ment in the prosecution of a cause which they 
knew to be brought only for a wrong purpose and 



24 ETHICS IN SERVICE 

without any just foundation, or if in a civil cause 
they were retained to make a defence which they 
were advised was false and wrong, then it might 
be that advocacy under such freedom from limi- 
tation would not aid the judges in avoiding wrong 
conclusions and unjust judgments. But there are 
limitations upon the duty of counsel to their 
clients. There are also limitations upon a law- 
yer's action which he cannot violate without a 
breach of his duty to the court of which he is an 
officer and to the public interest in the mainte- 
nance of the proper administration of justice. 
We find, therefore, that the goal to be reached in 
reference to the ethical duty of an attorney in the 
discharge of the functions assigned to him by 
the law, is the reconciliation of his duty to his 
client, with his duty to the court. To mark out 
this line in advance is easier than to determine 
each special duty in a concrete way, yet neither 
is free from difficulty and each requires a calm 
and clear understanding of the function of counsel 
as an instrument in the machinery of justice. 
This is the main object of legal ethics. It covers 
other fields and is important in those fields, but no 
other is of such primary importance. 

Courts sit to hear controversies between parties 
over facts and law. Rules of procedure are for 
the purpose of reducing the issues of fact and law 
in such controversies to a form as narrow and 



LEGAL ETHICS 25 

concrete as possible. Men wlio are able to present 
a clear statement of the evidence and who are 
learned in the principles of the law and their 
application to the facts as they are developed are 
in a position to assist the judge to a quick and 
thorough understanding of the exact question 
which he is to decide. The real entliusiasni of 
advocacy which is necessarily developed ))y the 
relation of attorney and client would dou])tless 
have a tendency to mislead the court if exerted 
in behalf of one side only, but where both sides 
are represented, where the same earnestness in 
the proceeding of each side is present, it is the 
best method within human ken to reach a sound 
conclusion both as to the facts and as to the law. 
No one who has had experience on the Bench in 
reaching judicial conclusions and w4io has there- 
after been obliged in an executive position to reach 
important, and it may be final, conclusions upon 
questions involving both fact and law, can fail to 
recognize and acknowledge the pow^erful influence 
for justice that honorable and learned members 
of the law exert in the causes which they present 
to a court. The counsel w^ho argues the losing 
side of a case contributes quite as much to the 
assistance of the court as the successful advocate. 
The friction of counsePs argument against coun- 
sel's argument develops every phase of possible 
error in a conclusion and thereby enables a just, 



26 ETHICS IN SERVICE 

intelligent, acute and experienced court to see 
clearly what is the right which should be embodied 
in its judgment. 

The practical value of argument by paid 
counsel on both sides is shown in many ways. 
In the first place, it is well understood in weighing 
legal precedents that there is little authority in 
the decision of a court which has been reached 
mthout the benefit of the argument of counsel. 
In some states, courts are required to answer ques- 
tions from the legislature as to the constitution- 
ality of proposed laws. The best authorities hold 
that opinions given under such circumstances are 
merely advisory, since they lack opposing argu- 
ments made by counsel whom the spirit of 
professional advocacy arouses to industry in the 
search for precedent. They go so far as to say 
that answers so given should not conclude the 
same court in a litigated case arising subse- 
quently. An earnest and commendable desire to 
win leads the counsel to search not only libraries 
but his own brain for the strongest reasons that 
he can summon upon which to base a judgment 
in behalf of his client. Why is it that a great Bar 
makes a great court! Though it may seem a 
truism, I repeat, it is because the great Bar fur- 
nishes to the court all the reasons that can 
possibly be urged in each case and enables it to 
select from among all the reasons developed by 



LEGAL ETHICS 27 

the ingenuity and intense interest of men skilled 
in the law. 

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



28 ETHICS IN SERVICE 

knowingly to misquote the contents of a paper, 
the testimony of a witness, the argument of 
opposing counsel, the language of a decision, or 
the wording of a text-book. He may fairly rely 
on a lawyer not to cite a decision that he knows 
has been overruled, or a statute that he knows 
has been repealed. He may properly rely on the 
counsel's not asserting a fact that has not been 
proven. 

Yet he knows that lawyers owe entire devotion 
to the interest of the client, and warm zeal in the 
maintenance of his rights and that they will exert 
their utmost ability lest anything be taken or be 
withheld from him, save by the rules of law, 
legally applied. He knows that counsel has the 
right to proceed in the view that his client is 
entitled to the benefit of every remedy and 
defence authorized by the law of the land and 
that the la^vyer is expected to assert every such 
remedy or defence. But it is steadfastly to be 
borne in mind that the great trust to the lawyer 
is to be formed within and not mthout the bounds 
of the law. The office of a lawyer does not permit, 
much less does it demand of him, violation of 
law or any manner of fraud for any client. He 
must obey his own conscience and not that of his 
client. These limitations are binding upon the 
lawyer as a sworn officer of the court, and com- 
pliance with them is the true reconciliation of the 



LEGAL ETHICS 29 

primary duty of fidelity to the client, with the 
constant and ever present duty owing to the 
minister of justice in the person of the judge. 
These statements of the duty of the lawyer to the 
court in the advocacy of causes and in the pres- 
entation of his client's case, are taken from the 
Code of Legal Ethics, which was approved by the 
American Bar Association. I think that all 
lawyers and judges will agree that when lawyers 
live up to them, the danger of injustice from the 
enthusiasm, skill or eloquence of their advocacy 
is quite remote. 

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



30 ETHICS IN SERVICE 

experienced in the elimination of the irrelevant, 
the emotional and the illogical. 

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



LEGAL ETHICS 31 

of witnesses or their opportunity or lack of it for 
observation, thereby eliminating those phases of 
the controversy that the earnestness of counsel 
may have seized upon to divert the attention of 
the jury from the real issue. 

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

I set out this view as a possible basis for a 
discussion of the grounds for popular criticism 
of the courts. To require the counsel to disclose 



32 ETHICS IN SERVICE 

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

The objection to the exclusion of hearsay 
evidence is equally unfounded. Its uses are said 
to be threefold, to convince in affairs of the world, 
to serve as the basis of action for business men, 
and to prevent opportunity for false witness. 
Yet it is not admissible in a court of justice to 
prove or disprove either a cause or a defence. 



LEGAL ETHICS 33 

The rules of evidence have been worked out by 
centuries of experience of courts in jury trials, 
and are admirably adapted to avoid the danger 
of error as to fact. I fully agree that in American 
courts the trial judges have not been entrusted 
with as wide discretion in the matter of admitting 
or rejecting evidence as they should have, and 
judgments have been reversed on technical errors 
in admitting testimony which should have been 
affirmed. As time goes on, however, the rule 
against hearsay evidence, instead of losing its 
force, is demonstrating its usefulness. The error 
and injustice that are committed in the public 
press by inaccurate, garbled and sometimes false 
statements of facts are increased in their injurious 
effect by the wider publication that newspapers 
have today, and the requirement that when a fact 
is to be proven in court it should be proven by 
those who have a personal knowledge of it, is one 
of the most wholesome and searching tests of 
truth that the whole range of adjective law fur- 
nishes. The opportunity for cross-examination, 
for finding out the bias of the witness, the advan- 
tage or disadvantage of his point of observation, 
the accuracy or inaccuracy in his recollection of 
the details of what he saw, are all means of reach- 
ing the real truth that the introduction of hearsay 
evidence would entirely exclude. 

It is now more than fifteen years since this 



34 ETHICS IN SERVICE 

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

Yet I am far from saying that we may not have 
improvement in our laws concerning testimony 
in court. The protection of those accused of 
crime contained in some of our constitutional 
restrictions may be too great. The charge against 
the administration of justice in the present 
system is that it is nothing but a game of wits, 
of cunning, and of concealment, promoted by the 
rules of procedure. I think this characterization 
is most unjust and most unwise because it aids 
the attack on a valuable and indispensable insti- 
tution without suggesting any real security for 
such evils and defects as there are. An experience 
of many years in the trial of all sorts of causes 



LEGAL ETHICS 35 

as lawyer and judge and in framing a judicial 
system convinces me that the present method of 
hearing causes is correct. The enthusiastic 
advocacy of counsel when they are properly 
restrained as above suggested, and the rules of 
evidence adapted to winnowing out the false from 
the true, are admirably adapted to bringing about 
right results. 

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

More than this, the tendency of legislatures, too 
often controlled by lawyers engaged in active 



36 ETHICS IN SERVICE 

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



CHAPTER III 
THE EXECUTIVE POWER 

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



38 ETHICS IN SERVICE 

of his position as head of the controlling party 
in Parliament. When the legislative majority- 
fails him, he goes out of office. It is a govern- 
ment responsible both for legislation and for 
executive work. 

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

I think, however, that we might advantageously 
give greater power to the President in the matter 



THE EXECUTIVE POWER 39 

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

President Wilson has inaugurated the policy 
of delivering his message to Congress personally. 
I think that is a good innovation. A Democrat 
could have made it, not a Republican. Washing- 
ton had to go to Congress, so had Adams, but 
when Jefferson came in he said, ^^No, that is 
monarchical, and I will just write a letter to 
Congress,'' and so he did. Washington went once 
to the Senate and attempted to have the Senate 
concur with him in a treaty with the Indians. He 
took ^dth him General Knox, w^io had frequently 
dealt with Indians. John Quincy Adams, in his 
diary, describes what happened as he learned it 
from a member of the Senate at that time. He 



40 ETHICS IN SERVICE 

says that in the conference, Washington found 
that every member of the Senate thought he knew 
more about the Indian treaty than General Kiiox. 
Whereupon, he, the father of our country, who 
has been represented as a model in every way, 
proved that he was no such ^* sissy*' as some of 
his historians would like to make him out. His 
character was one which develops into grand 
proportions when you study it, but he was no 
mere steel engraving of copy-book perfection. 
When he got through with that particular session, 
he turned to Knox as he went out, and said he 
would be damned if he would come to the Senate 
again. Now I do not approve of profanity gen- 
erally, but somehow or other I rather like that 
story because it lets in a little light on Washington 
and shows he was a man with good red blood. 

The first power of the President that I wish 
to consider is the veto power. The English King 
has it, but never exercises it, i.e., he has not 
exercised it for two hundred years. If he 
attempted to exercise it under the present 
British Constitution, he would shake the throne 
and should he try it a second time he might not 
have a throne under him. The President, how- 
ever, has the veto power under a provision of the 
Constitution. When he decides to differ with both 
Houses, certain members of demagogic tendency 
rise to say that the President is exercising a royal 



THE EXECUTIVE POWER 41 

prerogative power, or that he is going back to the 
time of Imperial Rome. This might frighten an 
inexperienced man, but in reality it is mere 
bluster. As a matter of fact, the President 
represents the people in a much wider sense than 
any particular Congressional orator, for he was 
elected by all the people, while the Congressman 
was chosen by only one district. The Constitution 
says that if he disapproves of an act, he shall send 
it back with his objections and it enjoins upon him 
the duty of examining every act and every bill 
that comes to him, to see whether it ought to pass. 
He vetoes, therefore, in his representative capa- 
city, with legislative and suspensive, but not 
absolute, power. A vetoed act is returned to the 
House, and if its supporters can succeed in getting 
a two-thirds majority in each House, the bill can 
still pass over his veto. This rarely happens, 
however, for the President can usually give 
reasons good enough to command the vote of at 
least the one-third of one House that is necessary 
to sustain his veto. 

The second great control exercised by the 
President is that of Commander-in-Chief. This 
includes, first of all, his command over the army, 
which is complete. He can send the army where 
he chooses and he can call out the state militia to 
repel invasion, to suppress insurrection and to 
execute the laws, if the army or militia be neces- 



42 ETHICS IN SERVICE 

sary. Of that lie alone is the judge. Early in 
our history certain state judges thought that the 
commander of the militia in each state should 
pass on the question as to whether an emergency 
had arisen which would justify the President in 
calling out the militia, but that was one hundred 
years ago. 

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

At this Governor Altgeld protested. ''I can 



THE EXECUTIVE POWER 43 

take care of this ; I have not asked you to bring 
these men in here. Under the Constitution it is 
necessary for the governor or legislature to re- 
quest the President to send troops in to suppress 
domestic insurrection which the governor of the 
state cannot control. '^ 

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

Another indirect power of the President as 
Commander-in-Chief was exhibited in a most 
remarkable way during the Spanish War. We 
took over successively Cuba, Porto Rico and 
the Philippines, but for three years after we had 
annexed the Philippines, Congress took no action 
in regard to any of them. They formed territory 
ceded to us by virtue of the Treaty of Paris and 
Congress thought the Philippines were a poker 
that was a little bit hot for it to handle. The 
responsibility for them, therefore, fell upon the 
President, and as Commander-in-Chief he intro- 



44 ETHICS IN SERVICE 

duced a quasi-civil government, appointing a civil 
governor and commission, whom he authorized to 
pass laws — subject to veto of the Secretary of 
War — and to enforce them. He thus carried on 
a complete government in Porto Rico, Cuba and 
the Philippines under his power as Commander- 
in-Chief until Congress became sufficiently ad- 
vised to enact needed legislation for their govern- 
ment. Cuba was turned over to her people, a 
Republic was set going. Then after several years, 
circumstances made it necessary for us to step in 
and take Cuba again. They had gotten into a row, 
as they frequently do in those Latin-American 
countries, and they were having a revolution. 

When we first let Cuba go, we made what was 
called the Piatt Amendment to the Cuban Treaty, 
suggested by Senator Piatt of this state. That 
amendment provided for the restoration of order 
by the United States whenever law and order 
were disturbed and whenever life, liberty and 
property were not secure. Mr. Roosevelt, there- 
fore, sent me down to Cuba with Mr. Bacon to see 
if we could not adjust the matter. When we 
arrived, we found twenty thousand revolutionist 
troops outside the city of Havana. President 
Palma had been so certain of peace that he had 
made no provision to suppress insurrections, and 
these troops were just about ready to march into 
Havana when I got there. I went out to stay at 



THE EXECUTIVE POWER 45 

the house of the American Minister in a suburb 
just between the lines, and we did what we could 
to compose the situation. In those countries when 
they have a revolution, the first thing they do is 
to elect generals. The next thing they do is to 
determine what the uniform of the generals shall 
be, and then they get the guns and last of all they 
organize. President Palma became discouraged 
and resigned so that I had to proclaim myself 
Provisional Governor of Cuba. The Piatt Amend- 
ment said that the United States could go into 
Cuba to preserve order; but the question was 
whether the President had the authority to go in 
without authorization by a resolution of Congress. 
I always thought that he had and Congress 
seemed to agree to it. So we went in, established 
a provisional government, passed a good election 
law, held an election and, at the end of a year, 
turned back the government to the Cubans, where 
it now is. 

The President has not the power to declare 
war. Congress has that power ; but if a foreign 
nation invades our country, the President must, 
without awaiting such declaration, resist and use 
the army and navy for that purpose. It is, there- 
fore, possible for us to actually get into war before 
Congress makes a formal declaration. That is 
what happened in the Civil War. The Southern 
states seceded and Mr. Lincoln had war on his 



46 ETHICS IN SERVICE 

hands before Congress could declare it. The 
President thereupon declared a blockade of the 
Southern ports and the question then came up as 
to whether it was a legal blockade so that prizes 
might be taken as in a naval war. Our war vessels 
had captured merchant vessels trying to run the 
blockade, had taken them into prize courts, and 
had sold them there, distributing the proceeds 
among themselves. The owners fought the 
proceedings and these suits, called ^^The Prize 
Cases,'' were carried to the Supreme Court of 
the United States. The court held that while 
Congress under the Constitution had sole power 
to declare war, nevertheless, actual war might 
follow mth all its legal consequences if a nation 
invaded our country or if such an insurrection 
arose as that which had just taken place in the 
Civil War. 

Let me give you an example of presidential 
authority exercised Th pursuance of his constitu- 
tional duty to execute the laws^^^en when Con- 
gress passes no law on th^^^tibject-matter. The 
Canal Zone was acquired by a treaty with 
Panama that followed its recognition — a recog- 
nition made with such promptness that it has 
since attracted some criticism. Congress passed 
a law that the President should have power to 
govern that country for a year, but failed to 
renew the grant of power. The question arose 



THE EXECUTIVE POWER 47 

then as to what was to be done in the Canal Zone. 
A prior act covering the building of the Panama 
Canal required the President to build it through 
a commission, but that was all. He might build it 
anywhere, either in Nicaragua or Panama, but he 
had no express governmental power over the 
Canal territory. He had, however, to see that the 
laws were executed, which meant that he must 
look after every piece of territory belonging to 
the United States and safeguard it in the interest 
of the people. It seemed to us, therefore, to be 
within the executive authority, until Congress 
should act, to continue the government of the 
Zone, maintain courts, execute men who committed 
murder, and discharge all the political functions 
required to constitute a law-abiding community. 
Let me give you another instance of the Presi- 
dent's exercising a law that Congress did not 
pass. Sarah Althea Hill thought she was married 
to Senator Sharon, at least she said she thought 
so. Senator Sharon was a rich man. She wished 
to share it. So she brought in the State courts of 
California a suit for divorce and alimony against 
the senator and exhibited a letter purporting 
to have been written by the senator admitting 
the marriage. She got into a great deal of 
litigation and employed as her lawyer Judge 
Terry. Senator Sharon then brought suit in the 
United States Court in California to have this 



48 ETHICS IN SERVICE 

letter declared a forgery and delivered up to 
him. Justice Field of the United States Supreme 
Court heard the case on the circuit. Judge Terry, 
who had been on the Supreme Court of California 
in its early days and had served on the same 
court with Judge Stephen J. Field, was a noted 
duelist and was known to have killed one man 
in a duel. Mr. Justice Field had been appointed 
from the California court to be a Supreme Justice 
of the United States by Mr. Lincoln during the 
war. Pending the litigation, Senator Sharon died 
and soon thereafter the association of Miss Hill 
and Judge Terry as client and counsel developed 
into a warmer relation and they became man and 
wife. She was a very violent woman, as Judge 
Terry was a violent man, and made threatening 
demonstrations in court when Justice Field gave 
the judgment against her. Justice Field sentenced 
Mrs. Terry to thirty days' imprisonment for con- 
tempt because in her fury she insulted the Court 
and attempted to commit violence upon the Judge. 
The bitterness of feeling between the Terrys and 
Justice Field was really heightened by the old 
association between Judge Terry and Justice 
Field as judicial colleagues. The Terrys fre- 
quently declared their intention, when occasion 
offered, to kill Judge Field. Word of this came 
to the Attorney-General, then W. H. H. Miller, 
in Mr. Harrison's administration. He notified 



THE EXECUTIVE POWER 49 

the United States Marshal to direct a deputy to 
follow Justice Field in his Circuit work and 
protect him against any threatened attack. 

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

Neagle was at once indicted by a state jury for 
murder. He went into the Federal Court and 
got a writ of habeas corpus, asking to be released 
on the ground that he was discharging a duty 
under the government of the United States. 
Judge Sawyer granted the writ and released 
Neagle. The state of California took the case to 
the Supreme Court of the United States. The 



50 ETHICS IN SERVICE 

court divided, with the Chief Justice and Justice 
Lamar dissenting. The majority of the court held, 
Mr. Justice Miller pronouncing the judgment, 
that the President was justified by the duty im- 
posed upon him by the Constitution to see that 
the laws were faithfully executed. Although 
there was no specific law on the statute book con- 
ferring upon the President authority to direct 
Neagle to take the action he did, there was an 
implied obligation on the part of the government 
to protect its judges in discharging their duty 
from the violence of disappointed litigants, and 
this obligation was a law which it was the duty 
of the President to see executed. The President, 
therefore, has the right through his Attorney- 
General, who is the finger of his hand, to direct 
an officer of the United States to protect to the 
uttermost a justice while on judicial duty, even 
if it necessitates killing an assailant. 

I cannot tell you all the officers of the United 
States — internal revenue men, customs men, post- 
office men, immigrant inspectors, public land men, 
reclamation men, marine hospital men — certainly 
150,000 in number, who are subject to the direc- 
tion of the President. In the executive work 
under this head, he wields a most far-reaching 
power in the interpretation of Congressional 
acts. A great many statutes never come before 
the court. The President or his officers for him 



THE EXECUTIVE POWER 51 

have finally to decide what a statute means when 
it directs them to do something. Many statutes 
contain a provision that under that statute, regu- 
lations must be made by executive officers in order 
to facilitate their enforcement. This is quasi- 
legislative work. The situation in regard to the 
present income tax illustrates the necessity for 
regulations. You will recognize that regulations 
adopted by the President and his subordinates are 
sometimes necessary to straighten out law. If 
you desire to study a maze or look into a laby- 
rinth, I commend you to the present income tax 
law. 

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

Yet it seems to me that a curtailment of the 
small duties now^ imposed on the President might 
well be made. The number of his appointments, 
for instance, might well be lessened. The Presi- 
dent ought, of course, to appoint his Cabinet, the 
Supreme Court, ambassadors, ministers, generals 



52 ETHICS IN SERVICE 

and admirals, but beyond that I think appoint- 
ments ought to be made without bothering the 
President about them. We have introduced a 
Civil Service reform system with a Civil Service 
Commission, and I trust that the matter of taking 
these subordinate officers out of politics will be 
pressed generally as a much-needed reform. 

Is the position occupied by a postmaster of 
sufficient importance to justify the President in 
bothering with his appointment when he has such 
a problem as the Mexican situation on his hands 1 
We are coming to the time when there are great 
complicated duties to perform under the govern- 
ment. We have departed from the Jefferson 
view, and we now think that the government can 
do a great many things helpfully, provided it has 
experts to do them. Is it not entitled to the best 
men to do these things! Yet how are experts 
obtainable unless they are selected to permanent 
positions by those who are looking for experts and 
not looking for men who exercise influence at the 
polls? 

I recommended to Congress four times, that is, 
in each annual message, that it enable me to 
put these men under the Civil Service law and 
in the classified service; but it did not do it, 
and why? Because all local officers now have to 
be confirmed by the Senate. That power of con- 
firmation gives a hold on the Executive and each 



THE EXECUTIVE POWER 53 

Senator and each Congressman wants to name 
the postmaster and the other local officers in his 
district or state. The consequence is that Con- 
gressmen do not wish the Senate to lose the power 
of confirmation. They believe this personal 
patronage to be a means of perpetuating their 
own tenure. As a matter of fact, this is not the 
case. Few men help themselves politically in the 
long run through the use of patronage. It is a 
boomerang. Some few manage to make it useful, 
but generally when a man secures an appointment 
for a henchman, as the saying is in Washington — 
and it is a very true one — he makes one ingrate 
and twenty enemies. The result is that after he 
has served a term or two, he begins to find those 
aspiring constituents, w^hom he did not appoint, 
rising like snakeheads to strike him down. 

Therefore, if Congressmen really had wisdom 
and looked ahead, they would rid themselves of 
responsibility for these appointments, would 
abolish the necessity for confirmation by the 
Senate, and would thus enable the President to 
classify them under the Civil Service law and 
merit system. But we have made progress and 
I am not discouraged about it. Ultimately we 
shall get the Senate to consent to give up that 
power, though at present the Democratic majority 
in the two Houses is fierce against such a sugges- 
tion, and quite naturally so, for, while the 



54 ETHICS IN SERVICE 

Republican party has been in control for sixteen 
years, the trend into office has been Republican 
and the Democrats wish to change it. That is 
human nature, and I am merely regretting, not 
condemning it. Perhaps if the Republicans come 
back into power after four years, they will not 
be quite so hungry as the Democrats were after 
sixteen years of famine, and we may have a little 
less wolfish desire to get at the offices. 

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

Of course they lead to some amusing expe- 
riences, for there is nothing which gives such a 
chance for the play of human impulse as office- 
seeking. I remember having a lady come into my 
office when I was Secretary of War. Her boy had 
passed the examination for West Point, but a 
medical board had examined him and found that 
his chest did not measure enough for his height. 
She came in to urge me to waive that defect. I 
explained to her the necessity for great care in 
the appointment of army officers, because if, after 
being commissioned, they had any organic trouble, 
they were disqualified for further discharge of 
their duty, and would be retired on three-fourths 



THE EXECUTIVE POWER 55 

pay without rendering any real service to the 
government. She listened with gloom to my 
explanation, and asked me to look at the papers. 
I took them in her presence and went through 
them. I found that the young man had, on the 
basis of 100, made 93 per cent in all his mental 
examinations. That isn't done by every candi- 
date for West Point, and there is no reason why 
we should not have brains as well as brawn in 
army officers. So I looked again at the measure- 
ments and concluded he was a man we ought not 
to lose. I told her : ^ ^ Madam, I did not have so 
much difficulty in filling out my chest measure- 
ment. Your boy shows such general intelligence 
that I have no doubt he will have sense enough to 
pursue a regimen that will make him sufficiently 
enlarge his chest measurement, so I am going to 
waive the objection and let him in.'' She had not 
expected so quick a decision in her favor, and was 
taken back a little. She hesitated a minute, and 
then, with an angelic smile, she said to me, ^^Mr. 
Secretary, you are not nearly so fat as they say 
you are." 

Then I had another experience. A lady in 
Washington, whose husband had some political 
influence, came and labored with me for six weeks 
or more to appoint her son to a position. She 
secured the aid of Senators and Congressmen in 
formidable number and came with them to see 



56 ETHICS IN SERVICE 

that they spoke with emphasis. The place was 
one requiring technical qualification, and follow- 
ing the recommendation of the head of the Bureau, 
I appointed somebody else. I then received a 
letter from the mother, saying that I was most 
ungrateful, since I declined to make her a happy 
woman as I could have done by a turn of my hand. 
She complained further that she had labored with 
her state delegation and got all the votes for 
an administration bill in which I was especially 
interested and this was the way I had rewarded 
her. 

When you get a letter like that, the first thing 
you do is to think how you can be severe with a 
person who has committed an impropriety, or 
even been a little impertinent. Then you may 
compose an answer. Then if you are wise, you 
will put the letter in a drawer and lock the drawer. 
Take it out in the course of two days — such com- 
munications will always bear two days' delay in 
answering — and when you take it out after that 
interval, you will not send it. That is just the 
course I took. After that, I sat do^vn and wrote 
her just as polite a letter as I could, telling her 
I realized a mother's disappointment under such 
circumstances, but that really the appointment 
was not left to my mere personal preference, that 
I had to select a man with technical qualifications, 
and had, therefore, to follow the recommendation 



THE EXECUTIVE POWER 57 

of the head of tlie Bureau. I expressed the hope 
that her son would go on to accomplish what she 
had hoped for him in the position which he then 
had. That mollified her and she wrote me a note 
saying she was sorry she had written as she had. 

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

Another great power of the President is his 
control of our foreign relations. In domestic 



58 ETHICS IN SERVICE 

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

Through the State Department he conducts all 
negotiation and correspondence with other gov- 
ernments and according to the Constitution he 
receives ambassadors and foreign ministers. 
Now you might possibly think that that meant 
only that he must have a flunky at the White 
House to take their cards — but it means a good 
deal more. He appoints ambassadors and minis- 
ters to other countries and instructs them. He 
receives the diplomatic representatives from other 
countries and does business with them. He 
construes treaties and asserts the rights of our 
government and our citizens under them. He 
considers and decides the rights of other govern- 
ments and their subjects in a way which practi- 



THE EXECUTIVE POWER 59 

cally binds our government and people. And in 
order to receive ambassadors and ministers, be 
must determine whetber tbey bave been properly 
accredited, so tbat tbey bave tbe proper autbority 
to act for tbe country tbey claim to represent. 

Wben tbere is a dispute as to wbat person is 
tbe cbief executive of a foreign country and tbere- 
fore entitled to send an ambassador or minister, 
tbe President must decide it. In otber words, be 
alone can exercise tbe power of recognition. How 
important a power tbis is, w^e may know from 
our recent experiences witb Mexico, for President 
Wilson, by witbbolding recognition from General 
Huerta, was able to render bis longer tenure as 
cbief executive impossible. 

In our foreign relations it is often tbe Presi- 
dent's duty to formulate tbe national claim of 
sovereignty over territory wbose ownersbip is in 
dispute. Tbis is a political question and bis 
decision or claim in regard to it is taken as final 
by tbe Supreme Court. 

In tbe Fur-Seal Controversy, Mr. Blaine took 
tbe position tbat our jurisdiction reacbed out over 
tbe Bering Sea. Tbe question was contested in 
tbe Supreme Court by tbe Britisb and tbe Cana- 
dian governments. Tbe Supreme Court said: 
*^We cannot determine tbis. It is a political 
question and must, tberefore, be decided by tbe 
President tbrougb bis Secretary of State.'' We 



60 ETHICS IN SERVICE 

then submitted the issue to an international 
tribunal, and the decision was against us. 

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

The President is also the titular head of a party 
and ought to have a large influence in legislation. 
He is made responsible to the country for his 
party's majority in Congress, and does thereby 
have some voice in legislation. Some Presidents 
have more control than others, but all Presidents 
find as the patronage is distributed, and as the 
term goes on, that the influence and power that 
they have over legislation rapidly diminishes. In 
fact, when there are no more offices to distribute 
and somebody else comes into view as the next 



THE EXECUTIVE POWER 61 

President, the authority of the incumbent becomes 
strictly limited to his constitutional functions. 
All of this tends to show that a President who 
seeks legislative changes and reforms should 
begin early. 

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

The social influence of the President in Wash- 
ington is not much. I think perhaps it might be 
useful if it were a little more, for the question of 
precedence, which makes everybody outside of 
Washington laugh, sometimes becomes a very 
serious matter. As the French ambassador once 
said, when there are three hundred people, they 
cannot all go through the door at one time. 
Somebody has to go first, therefore it is most 
important to ^ who that somebody shall be. But 



62 ETHICS IN SERVICE 

nobody in Washington has the authority to say. 
If only the army and navy were concerned, the 
matter would be easy enough, because they are 
controlled by the President and he can issue 
orders that they must respect, but with civil 
officers he has no such authority. Congress could, 
of course, provide rules of social and official 
precedence, either by legislation or executive 
order, as is done in all European countries. 
But here such a proposal would be laughed out 
of Congressional halls, though it would be a 
wise measure to prevent confusion, unnecessary 
friction and heartburning. 

The very men who make most fun of such 
matters and profess to despise their consideration 
are in actual practice the most unreasonable as 
to their own places at functions. The House of 
Representatives is supposed to be the embodiment 
of democracy and contempt for social distinctions, 
yet of all the people in the world who have made 
a fuss over the matter of precedence, speakers of 
the House of Representatives have been the most 
insistent on their proper place at official dinners. 
The speaker says: ^^I represent the body of the 
people who come from the soil and the people 
who make this country. Therefore, I decline to 
sit after the presiding officer of the Senate. ' ' An 
ambassador says: **I am the personal repre- 
sentative of my sovereign. If he were here in 



THE EXECUTIVE POWER 63 

Washington, he would sit next to the President.** 
The Cabinet officer says: ^^The President is the 
head. I am connected with him as Secretary of 
War, the Cabinet is a small body and the Senate 
is a large body. Therefore, we are bigger men 
than the Senate and we ought to have prece- 
dence.** In fact, the head of a scientific bureau 
came in to see me one day and said, ^ ' I think you 
ought to put me after the Supreme Court.** He 
even filed a brief with me on the subject, to the 
effect that **I run an independent department. 
The judges represent the judicial branch, and the 
President the executive branch, and the heads of 
the two Houses, the legislative branch, while I 
represent the scientific branch.** Indeed, the 
matter of procedure is not such a joke as it seems 
outside. It is not so important as to who comes 
first as that their order of precedence should be 
once determined. 

The President is made responsible for every- 
thing, especially for hard times. Of course his 
supporters claim credit for good crops, so that 
perhaps it is not so unfair to charge him with 
responsibility for bad crops and for everything 
else that happens wrong during his term. Every 
President strives to do the best he can for the 
country. It is a great task, one of the heaviest 
in the world. A man does not really know, until 
he gets out of the office, what the strain is. And, 



64 ETHICS IN SERVICE 

therefore, knowing that he is struggling to do the 
best he can, while he may differ with you, while 
he may do things that seem to you absurd, con- 
sider that he is there, elected by the American 
people, as your representative, and remember 
that while he is in office he is entitled to your 
respect. Now, don't be flippant in regard to him. 
Don't think it shows you to be a big man to 
criticise him or speak contemptuously of him. 
You may differ with his policy, but always main- 
tain a profound respect for a man who represents 
the majesty and the sovereignty of the American 
people. 



CHAPTER IV 
THE SIGNS OF THE TIMES 

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

Our American Revolution, which we are accus- 
tomed to regard as quite important — and it was 
for us — did not really represent a great world 
change such as was represented in the French 
Revolution. It grew out of a very unwise, selfish 
colonial policy on the part of Great Britain. We 
were right and wise in putting it through, and our 
ancestors demonstrated great courage and great 
tenacity in fighting it. It certainly gave us inde- 
pendence and an opportunity for expansion that 
we should not otherwise have had. But the pap 
that we have been brought up on with respect to 



66 ETHICS IN SERVICE 

the tremendous outrages which Great Britain in- 
flicted on us was sweetened a little bit. If you 
would see the other side, read Trevelyan's 
^^ American Kevolution/' In this you will see 
that while the right was certainly with us, we were 
not quite so much outraged as it seemed in our 
earlier childhood studies. The American Revo- 
lution did as much good for England as it did for 
us, because it taught her proper colonial policy, 
and today the colonial policy of Great Britain is 
one of the greatest instances of statesmanship in 
history. In her dealing with Canada, with Aus- 
tralia and with the South African Republic, she 
has given them such self-government that, far 
from wishing to sever the bond with the mother 
country, they cherish it. 

The French Revolution indicated a very much 
more important movement among peoples. It 
developed awful excesses. The wild declarations 
and extremes practiced by the Committee of 
Safety in the French Revolution were revolting 
to any man affected by ordinary humane consid- 
erations and had in fact a remarkable effect in 
strengthening conservatism in England. Indeed, 
they caused the issue and the bitter personal 
quarrel between the one-time warm associates, 
Burke and Fox. The natural result of those 
excesses was to be expected. It took the shape of 
the man on horseback. The imperial control of 



THE SIGNS OF THE TIMES 67 

Napoleon led the French people into a military 
waste of strength which has affected the French 
race even down to the present time. Yet Napoleon, 
by building up his Code Napoleon, and by spread- 
ing over Europe the idea that the people were 
the basis of government, profoundly affected 
political conceptions and conditions. There fol- 
lowed a reaction in the Holy Alliance, which was 
a combination to maintain the Divine Right of 
Elings, and then the spirit of the French Revolu- 
tion reasserted itself in 1830. In fact from then 
on until now the movement toward more and 
more popular government has gone on contin- 
uously in France, Germany, Austria and else- 
where. It is spreading today even more widely 
than it ever did before, and every country, even 
Russia, has to count the cost with respect to the 
will of the people. 

When I went through Russia after the Russian- 
Japanese War, I met one of the leading diplomats 
of that country who greeted me with, ^^Well, how 
do you like it r ' '' How do I like what V I asked. 
^^How do you like helping Japan to lick Russia V 
Those were the homely expressions that he used. 
To which I replied, ^'We did not help Japan to 
lick Russia. " ' ' But, ' ^ he said, ^ ^ you did in effect. 
Your people and your press sympathized and 
they expressed the kindly sympathy that counts 
for so much at such a time.'' ^'The government 



68 ETHICS IN SERVICE 

cannot control our people, '^ I responded. ^^They 
think for themselves and express themselves as 
they see fit. We cannot control the press in our 
country, but we have observed all the laws of 
neutrality with respect to the war, and if some 
of the people expressed themselves in favor of 
Japan, it was only because they were in favor of 
the under dog in the fight.*' ^^Why did you give 
upT* I inquired further; ^^You were getting 
stronger and stronger.*' ^^Yes,'* he said, '^we 
had to fight at the end of a 5,000-mile, single- 
track railway, but handicapped as we were, we 
got our forces out there ready to fight and we 
could have gone in and beaten the Japanese.*' 
*'Why didn't you!" I asked. *'Why did you 
make peace!" *'The trouble is," he explained, 
^ ' we were living on a volcano at home. Our people 
were opposed to the war, and we did not go on, 
lest the throne would be a forfeit." This is only 
an indication that even in the country that is 
supposed to represent the most absolute of 
empires, the people are manifesting a control. 
The Douma was given too much power at first, so 
that universal suffrage was necessarily a failure 
in the condition of the people at that time. But 
the Douma now is gradually acquiring useful 
power and in the course of the next twenty-five 
or fifty years Russia will probably have a popular 
constitutional government. 



THE SIGNS OF THE TIMES 69 

We have had democracy in this country for 
one hundred and twenty-five years, or indeed for 
two hundred and twenty-five years. It is now 
proposed to have more democracy to supply the 
present defects of our existing democracy. This 
is one phase of the present situation that I wish 
to discuss. Another is the spread of the fraternal 
spirit, the desire of one to help another, the actual 
improvement and increase in the brotherhood of 
man which we are seeing in society, and a third is 
trades-unionism, its essence and what is to be 
hoped for or feared from it. 

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

The effect is much the same upon your personal 
hope of accomplishing some good in the world as 
when a professor of astronomy takes you over to 
the observatory, lets you look through the tele- 



70 ETHICS IN SERVICE 

scope, tells you that light takes something like 
eight minutes to come the 95,000,000 miles from 
the sun to the earth, and then says that the sun 
after all is a pretty poor thing considered in 
connection with what other suns there are. When 
you find furthermore that some stars are so far 
distant that the light you are now receiving on 
your retina started from them centuries ago, you 
say to yourself: ^^Well, what's the use? If we 
are such atoms and so unimportant in the general 
result, what's the usef 

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

What then of conditions of civilization in our 
country in the last half -century ? The Civil War 
grew out of a great moral and social issue. It 
was a moral issue on the part of the North and 



THE SIGNS OF THE TIMES 71 

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

In the West, the pioneer spirit was so strong 
that they were glad to have anything in the way 
of development at any cost. Counties would issue 
railroad bonds to build railroads and would give 
the bonds to the railroads. They would give 
franchises of all sorts and do everything that 
they thought would help open the country. There 
was a most substantial increase in the average 
income, and the average comfort, especially in 
the bodily comfort, of everyone. Have you ever 
thought that today the humblest workman has 



72 ETHICS IN SERVICE 

more bodily comfort in many ways than Queen 
Elizabeth or even George III? We had learned 
the advantage of combination in machinery and 
we adopted it in business. 

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



THE SIGNS OF THE TIMES 73 

in politics. Great statutes have been passed — the 
anti-trust law, the interstate commerce law, the 
statutes against the use of contributions from 
corporations in politics, the statutes requiring 
the showing of the electoral expenses, have all 
been brought about in response to a popular 
demand. 

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

But the leviathan of the people cannot be 
aroused in this way and his movement stopped 
at the median line. We must expect unwise 
excess. Sincere reformers have reasoned that 
because we had the representative form of gov- 
ernment during this corrupt period, it is the 



74 ETHICS IN SERVICE 

representative form of government which is 
responsible. Because we had courts during the 
corrupt period, the courts are responsible for the 
corruption. Therefore we must change the repre- 
sentative system by injecting more democracy 
into it and we must change the courts by injecting 
more democracy into them and require the people 
at an election to decide cases instead of judges on 
the Bench. These are the excesses to which we 
trend. 

We are a pretty great people. We admit it. 
We have great confidence in what we can do, and 
when we are set, neither an economic law drawn 
from political science nor experience seems a very 
formidable objection. We are a successful people 
in machinery, and so we take our analogy for 
political reforms from machinery. We found that 
by uniting various mechanical elements we could 
make machines which would do as much as one 
hundred or one thousand men in the same time. 
So we think that if we are only acute enough to 
devise a governmental machine which will work 
without effort on the part of the people, we can 
sit at home while elections run themselves so well 
that only what the good people desire in political 
action will necessarily result. We want the 
equivalent of what, in the slang of practical 
mechanics, w^e call a fool-proof machine, because 
anybody can run it and no fool can interfere with 



THE SIGNS OF THE TIMES 75 

its normal operation^ So these political reformers 
are hunting a corrupt-politician-proof machine 
for government. It does not and cannot exist. 
No government can exist which does not depend 
upon the activity, the honesty and the intelligence 
of those who form it. The initiative, the refer- 
endum and the recall have been urged and in many 
states adopted, as a machine which no boss or 
corrupt politician can prevent from producing 
honest, effective political results. They are ex- 
pected to reform everything and those who doubt 
their wisdom are, for the time being, in the minds 
of many enthusiasts, public enemies. 

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



76 ETHICS IN SERVICE 

is even more deceptive than if it were wholly 
untrue. 

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

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



THE SIGNS OP THE TIMES 77 

into and compare the results of selection of 
judicial candidates by popular general primary 
and by convention, so that I know what I am 
talking about when I say that the primary system 
has greatly injured the average capacity of our 
elective judiciary. 

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

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



78 ETHICS IN SERVICE 

endum is the submission of every issue to the 
people. 

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

Now what is the initiative? In practice, it 
means that if 5 per cent of the electorate can get 
together and agree on a measure, they shall 
compel all the rest of the electorate to vote as to 
whether it shall become law or not. There is no 
opportunity for amendment, or for discussion. 
The whole legislative program is put into one act 
to be voted on by the people. Speakers will get 
up and claim that the millennium will be brought 



THE SIGNS OF THE TIMES 79 

about by some measure that they advocate. Sup- 
pose it is voted in? It never has had the test of 
discussion and amendment that every law ought 
to have. I am not complaining of the movement 
that brings about this initiative and referendum, 
for that is prompted by a desire to clinch the 
movement against corruption, on the theory that 
you cannot corrupt the whole people and that the 
initiative and referendum mean detailed and 
direct government by the whole people. But the 
theory is erroneous. The whole people mil not 
vote at an election, much less at a primary. When 
the people are thus represented at the polls by a 
small minority there is nothing that the politicians 
will not be able to do with that minority when 
they get their hands in. 

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

Now what is the referendum! It is a reference 
of the thing proposed by the initiative to the 
people who are to vote on it. These reformers- 
for-politics-only are never content to acquire a 
majority of the electorate vote for the adoption 



80 ETHICS IN SERVICE 

of the measure referred. They seem to love the 
promotion of the power of the minority. 

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

They have tried it in Switzerland. We get a 
good many of these new nostrums from that 
country. They said in Switzerland, *^ These men 
vote for candidates, they shall vote on referen- 
dums. ' ' What was the result 1 The electors went 
up to the polls and solemnly put in tickets. When 
they opened the ballots, they were blanks. What 
does that mean? It means that the people them- 
selves believe that they do not know how to vote 



THE SIGNS OF THE TIMES 81 

on those issues, and that such issues ought to be 
left to the agents whom they select as competent 
persons to discuss and pass upon them in accord- 
ance with the general principles that they have 
laid down in party platforms. In Oregon, at the 
last Presidential election, the people were invited 
to vote on thirty-one statutes, long, complicated 
statutes, and in order to inform them, a book of 
two hundred and fifty closely printed pages was 
published to tell them what the statutes meant. 

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

There was once a Senator from Oregon named 
Jonathan Bourne, who advocated all this system 
of more democracy. He served one term in the 
Senate and then sent word back to his con- 
stituents that he was not coming home at the time 



82 ETHICS IN SERVICE 

of the primary. He said that he was not on trial, 
for a man who had worked as hard as he had for 
the people could not be on trial. Instead, he said, 
it was the people of Oregon who were on trial, to 
say whether they appreciated a service like his. 
They did not stand the test, and he was defeated 
at the primary. Then he concluded that after all 
he would have to forgive them and take pity on 
their blindness. So he went out to Oregon and 
ran on another ticket to give them the benefit of 
his service. But still they resisted the acid test. 
He himself went to the polls to vote at this elec- 
tion where there were thirty-one statutes to be 
approved or rejected. How many of the thirty- 
one submitted to him do you suppose he voted 
for? The newspapers reported him as admitting 
that he voted on just three, and the other twenty- 
eight he left to fate. Now, gentlemen, is not that 
a demonstration? Is not that a reductio ad ahsur- 
dum for this system of pure and direct democracy? 



CHAPTER V 
MORE SIGNS OF THE TIMES 

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

In the small number of people who constituted 
the town meeting in New England, or in a Greek 
city, it was possible to discharge the compara- 
tively simple functions fulfilled by government 
because of the high average intelligence of the 
freemen who took part. But even the Greeks ran 
into difficulties, and if you will read Lord Acton, 
possibly the greatest historical authority on the 



84 ETHICS IN SERVICE 

subject, you will find that pure democracy, as it 
is called, resulted in disaster. We now have a 
much more complicated government and more 
democracy will not supply its needs. 

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

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



MORE SIGNS OF THE TIMES 85 

leading officers who should in turn select the 
subordinate officers and appoint the judges. 

To the objection that voters will not vote on 
referendums, it is urged that they ought to be 
compelled to do so. This is a futile remedy. 
Burke said you cannot bring an indictment 
against the people, and it is equally true that you 
cannot indict a great majority of the electorate 
for not complying with their electoral duties. 
Suppose you attempt to forfeit their right to 
vote, you may injure them, but you injure the 
whole people a great deal more. The 80 per cent 
of the population whose welfare is directly 
affected by the action of the electorate, but who 
are not by law permitted to vote, are entitled to 
have the more intelligent voters retained in the 
electorate. For, I am sorry to say, it is generally 
among the intelligent part of the community that 
we find neglect of electoral duties. The wisest 
course, therefore, is to give to the people as much 
electoral duty as they are ordinarily able and 
willing to perform, and no more. The funda- 
mental fallacies in the initiative, referendum and 
recall are, first, that they impose on the voters 
three times the electoral work they had to do 
under the representative system, and second, that 
the additional work involved is of a kind that 
could be done much better through agents than 
by the people directly. 



86 ETHICS IN SERVICE 

As to the recall of officers, I have only to say 
that if you elect a man for three years to try to 
help your city, or state, you must not make him 
subject to recall at any moment by those candi- 
dates or people whom he has had to disappoint in 
order to do his work effectively. Under the sys- 
tem of recall you are not going to secure the men 
who Avill work well by looking ahead to preserve 
the real public interest, but men who are trimmers, 
devoting their time to politics and doing as little 
as possible to avoid criticism. Your executive 
officers should be men of independence, courage 
and ability, who are interested in the public and 
willing to encounter criticism for the time being 
in order that they may carry out those policies 
that are going to inure to public benefit in the end. 
By making them subject to recall, you eliminate 
all independence and courage in your officers. 

Another sign of recent times which will repay 
consideration has been aptly termed ^* muck- 
raking.^' Mr. Roosevelt took the word from 
Bunyan's ''Pilgrim's Progress" to describe the 
irresponsible and slanderous attacks upon public 
officials, which were made merely for the purpose 
of selling the wares of penny-a-liners. To elimi- 
nate corporations from politics and to bring them 
under government control, as I have described, 
it was doubtless necessary to formulate charges 
against individuals and political leaders and it 



MORE SIGNS OF THE TIMES 87 

was not to be expected that misstatements would 
not creep into such personal attacks. While 
many people were doubtless injured unjustly, it 
was essential that general corrupt conditions 
should be revealed to the public. But there were 
a great many who were induced to go into out- 
rageous muckraking solely for profit, and maga- 
zines filled with such stuff and spreading real 
poison among the people were sent in the mails 
at a much less rate than it cost the government 
to carry them. I am glad to say muckraking is 
not so profitable now and it has been greatly 
reduced in volume. 

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



88 ETHICS IN SERVICE 

of progress and the fountain of Christian 
civilization. 

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

We cannot, of course, yield to such a force. 



MORE SIGNS OF THE TIMES 89 

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

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

This state of affairs is likely to continue for 
some years. I am not complaining about it 



90 ETHICS IN SERVICE 

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

The next sign of the times is pleasanter to 
dwell upon, that is, the spread of the fraternal 
spirit that has grown out of this great material 



MORE SIGNS OF THE TIMES 91 

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

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

It is quite probable that we shall find out by 
hard knocks that the government cannot perform 
everything now expected of it. Nevertheless, 



92 ETHICS IN SERVICE 

under the influence of a greater fraternal spirit, 
we have done a great deal. The housing statutes, 
the safety appliances both for passengers and 
employees, the restrictions on the hours of labor, 
the rules against child labor, the pure food law, 
the white slave law, the thorough health regula- 
tions, the control of public utilities, the growth 
in the public charitable institutions of the state, 
the parcels post and the rural delivery, all are 
instances of what the government has done to 
help the individual by applying the results of 
public taxation and restrictive laws. Moreover, 
we find among rich men a greater feeling of 
responsibility for their fortunes, which is proven 
by their large donations. Among those less 
wealthy we find an acti\dty in philanthropic 
organizations and in work of a charitable char- 
acter that has vastly increased during the last 
decade. In education, too, we have widened out, 
especially in vocational study, by preparing the 
pupils directly for wage earning by skilled labor. 
Unfortunately, however, many good people in 
social settlements and in philanthropic work 
devote their attention so exclusively to the sore 
and rotten spots of society that they lose their 
sense of proportion, and bring hysteria even into 
this movement. Persons so affected come to think 
that if suffering, wickedness or squalor is per- 
mitted to exist anyrv^here, society must all be bad. 



MORE SIGNS OF THE TIMES 93 

There must always be sin, and there must always 
be neglect and waste until we get to the millen- 
nium, which is not yet so near that we can see and 
feel it. In making our estimate of human prog- 
ress, we must size up the whole situation and 
take the average condition. Similarly in attempt- 
ing to remedy a local or special evil, we must 
avoid the injustice of unduly sacrificing the 
general welfare. By extreme measures planned 
to accomplish what may be good in the abstract 
but is still not practical, we can make the cause 
ridiculous. 

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

There is another feature of this present 



94 ETHICS IN SERVICE 

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

I am strongly in favor of having young men 
and young women know certain things about sex 
matters, the young men through lectures in school 
or college, and the young women through instruc- 
tion by women who can tell them in a short time 
all they need to know; but this idea of empha- 
sizing and expanding the subject and of culti- 
vating a free interchange of thoughts between 



MORE SIGNS OF THE TIMES 95 

the sexes is most dangerous. For one hundred 
years these subjects have been suppressed in 
America to the great benefit of society and it is 
well that they should remain so. So-called 
reforms in this direction are made the excuse for 
pruriency in drama, in novels, in moving pictures 
and in other ways that are distinctly vicious in 
their effect. They promote lubricity and although 
such literature and exhibitions may have the 
support of good people who think they are 
advocating great principles, they should be 
condemned. 

Take another instance. Of course we all wish 
penitentiaries to be free from disease, and we are 
interested in prison reform to the extent of 
making them as healthful as possible for the 
prisoners. But this idea of making society a 
scapegoat and ridding everybody from respon- 
sibility for his sins, on the theory that his grand- 
father or grandmother was wicked and he is only 
doing it because of his heredity, makes the preser- 
vation of law and order impossible, and destroys 
the peace and comfort of those who are law- 
abiding. The penitentiary is a place for punish- 
ment and reformation. It is not a rest cure or a 
summer hotel. I have no doubt that prison dis- 
cipline can be improved ; but changes based on the 
theory that convicted criminals are disguised 
heroes who only need an appeal to their honor 



96 ETHICS IN SERVICE 

and freedom from restraint to make them good 
citizens will have humiliating but perhaps instruc- 
tive results. 

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

With many, this growing sense of brotherhood 
stimulates the movement toward state socialism. 
Our excessive paternalism leads on to this. The 
view that the government can do anything, remedy 
every evil, level every inequality and make every- 
body happy, would have a most disastrous effect 
on production and individual effort and enter- 
prise. The next step will be to curtail the right 
of property. It is difficult to define Socialism as 
a practical plan of government. The plan as set 
forth in a little book published in Austria called 
*'The Quintessence of Socialism'* is as definite as 



MORE SIGNS OF THE TIMES 97 

any that I know. It involves such governmental 
restriction of individual freedom of action and 
such real tyranny that the American people could 
not stand it. In fact, the regulation of the details 
of life by a system of awards for particular work, 
made by committees instead of by the operation 
of the law of supply and demand, would bring 
about a condition that would burst itself in a very 
little time. As ^' Billy'' Sumner used to say, *^If 
you have that kind of a system, I choose to be on 
the committee." 

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



98 ETHICS IN SERVICE 

great deal to raise wages and bring about equi- 
table terms of service. 

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

On the other hand, a sense of their power has 
sometimes given leaders of labor unions a lack of 
discretion, a truculence and an unreasonable and 
unjust attitude. Like the employers, they have 
been dependent upon public opinion and after a 
time public opinion has controlled them. Prob- 
ably the greatest evil that stands out from all the 
good work unions have done, is the dead level to 
which they seek to bring the wages of skilled 
manual labor. Organized labor insists on making 
a class and then having that class receive the 
same wages, and it does nothing to encourage 
individual effort by consenting to the payment of 
higher wages to the man of experience, industry 
and skill than to the mediocre and lazy. It will 
in some way have to obviate that difficulty which 



MORE SIGNS OF THE TIMES 99 

works against the cause of labor and the interest 
of society. Moreover, its leaders do not discour- 
age, as they should, lawlessness as a means of 
achieving their industrial ends. The history of 
the dynamiters in California and of the civil war 
in Colorado shows this. 

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



100 ETHICS IN SERVICE 

trades-unionism needs is leaders to teach its 
members common sense. 

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

We must pray that the injurious excesses which 
I have been describing as the cost we have to pay 
for a great reform, may not unsettle the founda- 
tion of our government and destroy the self- 



MORE SIGNS OF THE TIMES 101 

imposed restraint arranged in the Constitution 
to make that government just to the individual, 
to the minority and to those who do not vote. If 
we do not disturb those foundations, we can 
count on the common sense of the American 
people to bring them back to sane views, and we 
can rejoice and continue to rejoice -in, the .preser- 
vation of a popular government thiai .'for. on<&. 
hundred and twenty-five years ha;^ vindicat;ed its 
conservatism and justice before the" World 'and 
will continue to do so forever. 



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