Its Prototypes. SPEECH OF HON. JOHN S. WILLIAMS, OF MISSISSIPPI, IN THE HOUSE OF REPRESENTATIVES, tomed to neatness in their attire the loss of a collar button is Federal Usurpations of Power by the Republican Party and proverbially provoking. For this, perhaps, the laundryman is not to blame; but what may be said of that harrowing circumstance which finds the man possessed of a collar button bereft of the buttonhole in his shirt? If men, called upon to perform their daily avocations, and desiring to possess themselves of the smile of optimism, are to put forth the best there is in them, either in business or debate, pray how may it be done with the collar band of a newly laundered shirt sawing remorselessly upon a blistered neck or with the consciousness that the yoke of a collar has slipped the button and is making a disgraceful exhibition of its owner? The humorous side of the situation presents a rich and varied field of inquiry and of recollection. But the purpose of the bill has no other significance than that it is desired to compel those who take the property of the public into their laundries to treat it decently and return it in good order. Why should not this be done? Laying aside the aggravation which comes to men and women alike as the result of their nerve-racking laundry experiences, why should not the proprietors of these establishments give the same careful attention to their work as is required in other lines? Why should they be permitted to wantonly destroy property that is placed in their keeping? We protect the customer of the grocer against the sale of adulterated food products; we require restaurants, employment agencies, and other establishments where public service is extended to comply with certain standards and abide by certain rules of decency; we hold in check a hundred businesses and occupations that might run riot and that doubtless would permit the unscrupulous to take advantage of the unwary if regulations were not in force. If, therefore, a housewife who has difficulty enough in keeping expenses within the income of the husband finds it necessary to send table linen, bedding, or wearing apparel to a public launddry, why should it be put instantly, as it were, into the "jaws of death" and so macerated as to be unfit for further use? We talk of the increased cost of living. We have been raising the salaries of Government employees-not sufficiently, to be sure, to satisfy the demand, but we have been raising them, nevertheless because it is a known fact that men can not live and support families to-day upon the wage of a quarter of a century ago. We expect our Government officials to present a proper appearance in the matter of their wearing apparel; we require certain things of them; we would not permit them to remain at their desks unkempt and greasy; and by the same token we have obliged them to follow the general trend toward the laundry. They must patronize the laundry. They must send their shirts, collars, cuffs, and other wearing apparel. For all these things they pay good prices. These enter into the necessities which have involved an increase in the cost of living. The average Government clerk can not afford to buy a new outfit to-day and have it destroyed by acids or by reckless laundry machinery to-morrow. The laundryman does not have to use acids and destructive machinery. It is said some of them use lime for bleaching. Here, at once, is a process of disintegration. Is this a fair method of treating the customer, who is ignorant of the treatment to which his property is subjected, and who accepts it back from the laundryman believing it has been washed in the regular way? Tell the launderer-and I am referring only to those who indulge in unfair practices-tell the unfair launderer that he can not use certain methods, that he must comply with the regulations which require good service or he can not be licensed to do business. Is there anything in this proposition which an honest laundryman need fear? Is there any reason why all laundrymen should not give the service for which they are paid? Is there any reason why those who are greedy for business should besmirch the fair laundryman and yet charge the public for a destructive service? I am aware that we make many laws that confuse the people, and I fear sometimes we make too many laws for the smooth and ready conduct of business. We ought not to discourage enterprise, nor put unnecessary obstacles in the way of men who are willing to invest capital and give employment to labor. On the other hand, we should encourage all such men and protect them from the shirk and the grafter. But in justice to the responsible business man who is doing a correct business, we should not hesitate to hold in check those who are doing an irregular business. I present this brief statement at this time in order that the situation may be fairly understood when the bill which I have presented to regulate the laundries of the District comes before the next session of Congress. The great mass of people in the District, I am thoroughly convinced, most heartily approve the suggestions contained in the bill; and when Congress comes to fairly consider it, I hope it will give full credence to the underlying basis of good faith which inspires it. Tuesday, May 26, 1908. Mr. WILLIAMS said: Mr. SPEAKER: Under the general leave to print granted by the House, I desire to insert the following, being in the main an address recently delivered by me to the American Academy of Social and Political Science at Philadelphia on the subject of "Federal usurpations of power: " whether free or not, which have existed and fallen have fallen by "As far as I can read, or have ever read, all governments, time in their histories when government and its machinery the growth of the weight of political machinery. There has come a was the first consideration and man and his individuality the second. It is well always to keep in mind the fact that while government is necessary and ought to be made good, it is yet after all a necessary evil, growing out of the vices of human nature. It is a means to an end, which end is an equal opportunity for the happiness and freedom and development of the individual man and woman, and is never an end in itself. "This idea was carried further in the formation of our Federal Government than in that of any other government, according to my mind. In a certain sense, indeed, the Federal Government is not the government of "these United States" at all, but is a piece of central political machinery organized to hold together in union the several governments of the several United States and to protect them by union from mutual aggression and from aggression by foreign powers. It "Federal usurpation of power is not of recent growth. was a necessary concomitant of the rule of the old Federalists, the prototypes of the present Republican party. Hamilton and the men of his way of thinking, delegates to the Constitutional Convention, strained every nerve to procure a stronger, or, as they would have said, a more stable government than that which was, as a matter of fact, reported to the people for adoption in the original Constitution. Though defeated in the Convention in many of their essential purposes it was but natural that when the Constitution was submitted to the peoples of the respective States they should have become strenuous advocates for its ratification, because, though giving birth to a government not as strong nor as centralized as they desired, it still inaugurated one very much more to their liking than the old confederation. They soon found that the objections to its adoption were not based on its being too weak a bond of union, but were precisely the contrary. They therefore necessarily based their advocacy upon a plea to the people that it did not interfere with the real rights and sovereignty within their spheres of the States; that the States still would have such rights as were not delegated expressly or by proper implication, and in their advocacy they emphasized how little authority and power, comparatively, the new Federal Government would have. Notwithstanding this plea, the discontent with the Constitution as it came from the hands of its framers was so great, upon the ground that it did not sufficiently safeguard the inalienable and natural rights of the individual and the reserved rights of the States, that it was adopted only upon the understanding that the first ten amendments, further safeguarding these individual and State rights, would be added to it. They were immediately added after the adoption of the original instrument. "If you will dispassionately take up our fundamental law and study it, without the first ten amendments, you will see that it would have launched into existence the least democratic of all governments now existing amongst English-speaking peoples. As originally framed there was no express guaranty of freedom of the press, freedom of speech, freedom of assembly, trial by jury, or habeas corpus. In fact, most of the muniments that had been secured by war and legislation to the race before it crossed the Atlantic were unprotected, whether these muniments had been embodied in the habeas corpus act, in the bill of rights, or in some other instrument. "George Washington was not really a member of any political party. He had the unfounded idea that government with free institutions could be carried on without parties, and deplored their existence as factional. At the beginning of his Administration this idea was his guide. Later on, after Jefferson had retired from the Cabinet and Hamilton became unrestrained adviser, the Administration did take on a somewhat Federalistic hue. "When John Adams came in, with the real Federalists in supreme power and full control, then the note of Federal usurpation of power began to assert itself. "The alien and sedition laws were an illustration on the legislative and executive side of the Government. When Adams was retired he left the bench in control of Federalist judges, the greatest, most ingenious, as well, perhaps, as the most sincere of them all, being John Marshall. The Dartmouth College case, which is, in my opinion, the Iliad of all our woes, in so far as our inability properly to control corporations is concerned and in so far as judicial construction has brought about Federal usurpation, naturally followed. The decision giving the right to the Federal Government to establish and maintain a national bank, for which no authority could be found in the organic instrument, except by fiction of law, was another result of a Federal judge attempting to construe into the instrument something offered in the Convention to be inserted and the granting of which had expressly been refused. "Every governmental abuse is based upon some plea or pretext and the usurpation of power by government is generally based upon necessity,' the tyrant's plea. This real or fancied necessity generally grows out of war. This has been especially true with regard to legislative and executive usurpations by our Federal Government. Real or fancied war necessities are and ever will remain the chief pretexts for Federal usurpation. Amidst the universal plaudits which he has received and deserved, there are few people left ungracious enough to give sufficient emphasis to the part which Abraham Lincoln and his Cabinet had in changing the spirit, if not the form, of the American Government. The doctrine of war powers' came into being, and after war had passed and peace had come the usurpations following from the exercise of the so-called 'war powers' furnished precedence for their continuance and for other usurpations like them. As has always been said inter arma leges silent; there are undoubtedly certain powers which have been recognized to belong to all governments with forces operating during war in the field and in the enemy's country beyond those which are conceded to the same governments at peace and at home. "During the war between the States the Executive first asserted and Congress afterwards attempted to confer upon the Executive the right to suspend habeas corpus, not only in the territory which was within the boundaries of the Confederacy, but in the States which had remained in the Union. Things went so far that the writ of habeas corpus was suspended on the order of a lieutenant-general, acting under general authority conferred by proclamation of the President. "The Secretary of War and the Secretary of State, on bare orders, based upon no affidavit even, much less indictment, arrested and confined citizens of the loyal States and spirited them off to prison. Federal marshals and police did the same thing. All this, too, prior to the act of March 3, 1863, whereby Congress attempted to confer the power and the right to suspend the writ of habeas corpus, a power vested by the Constitution, according to all judicial construction, in Congress alone. Under a proclamation of the President, amongst the classes to be thus treated were described those who magnified the resources of the enemy' and those inflaming party spirit among ourselves.' It seems almost incredible now that men could have been taken out of their beds at night and carried away to prison, without even affidavits, by ignorant marshals, who determined for themselves the questions whether or not those seized and imprisoned were guilty of disloyalty, especially when disloyalty was defined in such vague terms as magnifying the resources of the enemy,' underrating our own,' or 'inflaming party spirit amongst ourselves.' "Fortunately for the future of our republican institutions, in December, 1866, in the case of ex-parte Milligan (4 Wallace) the Supreme Court pronounced these proclamations of the President unconstitutional and the act of Congress so, except in so far as it was in its provisions confined to the locality of actual war' and not elsewhere, and to places where courts are not open.' "There are those who believe that the branch of the Government most guilty in the field of Federal usurpation is the judiciary. This is not true. Upon the whole, the courts have been a bulwark of protection for the natural rights of the individual and for the reserved rights of the States. Judicial usurpations which have been successfully accomplished have not been a tithe of those which have been unsuccessfully attempted by the Federal Legislature or the Federal Executive. The Ku Klux act, which would have carried the Federal authority into every man's home within the States in the enforcement of ordinary criminal law; the civil rights act, which usurped to the General Government nearly all of the police powers of a State and the control of the social affairs of the citizen, are illustrations of attempted Federal usurpations set aside by the courts. "During the period immediately after the war between the States Congress fought most viciously against the courts, frequently attempting by acts of Congress, and sometimes successfully, to prevent appeals to the Supreme Court of the United States. A book might be written, and a very ineresting one, too, upon usurpations flowing out of the civil war and out of the supposed necessities of a reconstruction of the Southern States. "Some of the usurpations that owe their real existence to the civil war still remain to plague us; for example, the legaltender case. The Constitution deprived the States of a power which was inherent in their sovereignty, but which had been found to be greatly abused-to emit letters of credit and issue paper currency. Hamilton himself contended that not only was this power not granted to the Federal Government, but that in spirit it was actually prohibited to it. Nobody ever did, or does now, doubt the right of the Government to issue a note as evidence of indebtedness when it has not the money wherewith to pay. But nobody up to the civil war had ever, for one moment, dreamed that the Government had a right to levy a forced loan upon the people by making its notes a legal tender for the payment of debt. This legacy, however, is not justly attributable to the judiciary, but to the President and the Senate. You are familiar with the manner in which this result was arrived at. After a first decision by the court declaring the legal-tender act unconstitutional, the addition of a new judge to the number on the bench and the appointment of another new judge to fill a vacancy, meantime caused by death on the old bench, accomplished a reversal. "It requires no imagination, but a plain survey of the field only, to realize what an immense capitalistic and centralizing influence the judicial construction into the Constitution of this power which was never granted-the power to make of Government notes a legal tender to take the place of gold and silver-has vested in the Federal Government. "John Marshall, in the case of McCullough against Maryland, had early in the history of the country upheld the power of the Federal Government to charter a national bank of issue, although a proposition in the Constitutional Convention to confer such power had been expressly offered and expressly voted down. The opinion in the case upheld the bank as a 'fiscal agency' of the Government, and as such it was declared that it could not be taxed by a State, because such a power of taxation would carry with it to one sovereignty the power to destroy the fiscal agencies of another. And yet, long afterwards, when the law to establish the present national banking system, in order to strengthen the credit of the Government and to increase the price of its bonds, carried a provision to tax State bank issues 10 per cent, it being admitted that this tax was levied not for the purpose of revenue, but for the purpose of stamping State bank issues out of existence, the court cavalierly flung aside its former doctrine that one sovereignty could not tax out of existence the fiscal agencies or chartered instrumentalities of another, and held, in substance, by sustaining the constitutionality of the 10 per cent tax, that it could. The power to 'issue " money" directly to the people' in the shape of legal-tender Treasury notes, and the power to confine the function of bank-note issuance to national banks and to monopolize its regulation have together given to the Federal Government that power and influence over finance and business which make other usurpations, whenever all three branches of the Federal Government are desirous of making them, irresistible by the States or by the people thereof. "The early assertion by Congress of the power to levy import duties not simply as taxes for raising revenue, but for the admitted purpose of hothousing into prosperity at the common expense such industries as, in the opinion of Congress, it is for the common interest and the general welfare to hothouse, has given a whip handle, if not a mastery, over the manufac turing interests of the country to the Federal Government. The control of finance and of manufactures thus usurped, together with the immense powers actually vested by the Constitution itself in the Federal Government, under the treaty-making clause and under the interstate-commerce clause, constitute our Government of to-day a Government stronger than any that Hamilton and his compeers ever dared attempt to inaugurate in the Constitutional Convention-stronger than Marshall even ever dreamed of construing or wanted to construe into existence. "This is true even when you consider alone the real power of Congress under the interstate-commerce clause when exercised honestly and genuinely for the sole constitutional purpose of the gress. lands so as to make them valuable and so that the proceeds of their sale may inure to the interest of all the people there can be no doubt. Growing out of this right Congress has taken hold of the work of irrigation everywhere, on private lands as well as on public domain. It has added to that the kindred subject of drainage, because, undoubtedly, if Congress have power to put water on lands outside of the public domain, it has an equal power to take water off of lands outside of the public domain. The departmental work does not seem to have received even a momentary check from the decision of the Supreme Court in the great case of Kansas against Colorado, in 206 U. S., where the court says, after examining in detail all the enumerated grants of power to Congress, that no one of them, by implication, refers to reclamation of arid lands.' "In some cases where Congress has usurped power and where the courts have subsequently set aside the acts of Congress as unconstitutional the wrongs perpetrated under the acts have been perpetuated. Retaining in the Federal Treasury the money received under the 'captured and abandoned property act' is an instance in point. After the general amnesty proclamation of the President, it became evident that the money lying in the Treasury from the sale of 'captured and abandoned property' would have to be restored to the Southern people who had owned it. A rider on an appropriation bill of July 12, 1870, undertook to annul, and Congress, by refusing to appropriate the money out of the Treasury, practically has annulled the subsequent decision of the court to this effect. Millions of dollars are now lying in the Treasury accumulated there under this act of Congress, which the court subsequently held to be a special fund to be repaid to the owners of the property. There is no way of getting it out, however, because, as the court properly says, it requires an act of Congress to appropriate money once covered into the Treasury out of it again. Here is a case where Federal legislation has been adjudged invalid and unconstitutional, and yet where the people injured by the usurpation have suffered the effect of it until they died and where their heirs or assignees are suffering yet. The money in the Treasury derived from the cotton tax, and still kept there, is another instance almost in point. regulation of interstate commerce. When you consider the cases "Take, as the next illustration, the gradual assumption of power to the Federal Government in connection with works of irrigation. That Congress has a right to irrigate the public "I have referred to the war between the States as a source of much Federal usurpation. The Spanish-American war might be referred to in the same connection. The Constitution of the United States provides for the separation of the judicial, executive, and legislative functions. In the Panama Zone the Executive alone has been and is exercising not only executive, but legislative functions. When a resolution was introduced into Congress, and passed by it, asking under what authority of law' the President was doing this, the answer came that it was under authority of certain acts of Congress, their dates being recited, and under authority of a treaty with the so-called Republic of Panama,' as if either an act of Congress or a treaty could confer upon the Executive the right to exercise judicial or legislative powers, in the teeth of an express constitutional prohibition of their consolidation. "Our experiment with schemes of crown colonialism in the Philippines now, and for a while in Porto Rico, was so stupendously alien to the spirit of all our institutions as to be at once horrible and amusing. Department law clerks sent out as proconsuls are learning in the Philippines and in Cuba to-day lessons which will return to vex the Republic at home. You need not expect that what is learned there will be forgotten here. In Rome the Imperator was first a field officer in Gaul or Asia or in other conquered territory. Then there came the exercise of powers as Imperator in Rome itself. Marius and Sulla as well as Julius Cæsar were virtually emperors long before Augustus Cæsar had founded what we now call the "Peace is important to all peoples. I sometimes think that two-thirds of the energies of all the statesmanship in the world might be profitably employed in the maintenance of peace throughout the world. But if important to other peoples, it is doubly so to us with our peculiar dual government, the balance of which is so nicely adjusted and so vital and which is always shaken by the sequelae of war. We never know beforehand what these sequelae are going to be. You hear much of the horrors of war. The greatest of all these horrors is the murder of free institutions, and especially of local self-government, the only possible field for development of individual manhood. The spirit of absolutism necessary to crown colonialism will be found to be contagious. Accustomed to it in all its spirit in our daily administration of colonial affairs, the public will gradually become accustomed to the insidious introduction of its features at home. No free government can successfully control alien and unassimilable peoples, except by the violation of the fundamental principles of free government itself. Our forefathers recognized this when they placed the Indian tribes nexed-a confession, therefore, of deliberately contemplated on the footing of foreigners, to be dealt with by treaty. usurpation. And to increase power how? Not by amending the "The mailed fist, well exercised to its task, is dangerous, ulti- Constitution, even though we had to amend the amendatory mately, to liberty of citizens much more than it is even to sub-clause in order to make the work of amendment easier, but ject peoples. The system will some day drag dowa England herself by the exhaustion of her sons and her revenues in maintaining her hold upon India. The inauguration by us of the system in the Philippine Islands, unless once we have the good sense to put the people of the archipelago upon their own feet, teach them to stand alone, and leave them standing afterwards, will have the same effect for us in the long run. It is even now furnishing the excuse of great armaments, naval and military, and the Philippines constitute to-day the one point of unnecessary and unnatural contact out of which great wars may, if not must, ensue. "These Federal usurpations are going on not only through the Executive and the legislative, but, insiduously, gradually, unmarked, by bureaucratic operation, through the administrative rulings of the Government. Charles I lost his head and James II his throne because of executive and administrative suspensions of acts of parliament. The American people have become so accustomed to the suspension of laws by mere nonenforcement by the Executive, or some obscure bureaucrat under the Executive, that you perhaps could not excite real alarm in the minds of five men by a full recital of them all. The Executive sits in judgment every day on the wisdom of statutes. 6 by Executive action,' and 'by legislation,' both of them necessarily, if there be an increase of power, violative of the constitutional limitations upon Executive action,' and upon Federal legislation. It can not be too often repeated that this is true, or else the word 'increase' would not have needed to be used. And third, and more insidiously still, by express executive injunction there should be and must be increase' by judicial interpretation and construction.' By the Soul of all Insidious Revolution! Mark the quoted words well in your memories! "Secretary Root, in his New York speech in December, 1906, evidently following up a deliberately laid scheme and purposely supplementing the President's speech in Harrisburg in October of that year, uses this language: 'Sooner or later constructions will be found to vest power where it will be exercised, in the National Government.' Secretary Root is a lawyer. He knows what the verb 'vest' means. His language is to rest power.' 'Vest' means to give to deposit a new power, not to apply an existing one to new conditions. His ground and excuse and reason for vesting' it is that it must be 'placed' where it will be exercised.' The necessary inference is that it is now vested or placed in the States and that they ought to be divested of it, because they do not 'exercise' it. His method "Mr. Shaw while Secretary of the Treasury took money al- of vesting' power again is, like the President's method of ready covered into the Treasury, and under the guise of deposit-increasing' it, not by amendment to the Constitution, whereby ing it virtually loaned it to such banks as he chose without in- the people themselves can redistribute the powers, which are terest. This notwithstanding Article I, section 9, clause 7, of the theirs, and which they originally distributed between our dual Constitution, which says: No money shall be drawn from the sovereignties, but by constructions' which are to be found!' Treasury but in consequence of appropriations made by law.' Found' by whom? By the very men who are to exercise the "The same Secretary of the Treasury quietly construed the powers construed into being by being 'found.' disjunctive or' in a law passed by Congress to have the meaning of the conjunctive and,' so that when Congress had by law said that those receiving deposits of public money-not deposits of money already covered into the Treasury, remember-but deposits of money collected from internal revenues and not yet covered into the Treasury-should deposit as security United States bonds 'and' other bonds, that it meant or other bonds. Upon this he quietly issued a ukase to the effect that he would receive such securities as 'complied with the savings-bank laws of New York and Massachusetts,' and would dispense with the deposit of United States bonds altogether, in his discretion. The discussions in Congress at the time that the law under whose alleged authority he acted was passed show the reasons for the original act. People forget now that there was a time when United States bonds were not at par. It was wise, therefore, upon the part of Congress to provide originally that the Secretary of the Treasury might require other security as additional to that of national bonds in order that the security might always be equal in par value to the money loaned. I need not dwell upon the total torturing of the original meaning by the Secretary's decision. Secretary Cortelyou ruled later on that, under the provisions of a law permitting the issuance of Treasury certificates when necessary to meet public expenditures,' he was enabled to issue these certificates to get money in order to help the banks by free loans in a panic. "An administrative board of the United States, engaged in the business apparently of seeing to it that due protection' is rendered to 'American industries,' and finding that there was no tariff on frog legs, which were being imported into our territory to the detriment of the great American industry of bullfrog raising, gravely ruled that they were taxable under the clause which put an import duty upon dressed poultry. "What has been accomplished in the way of Federal usurpation by the National Legislature and Executive and either set aside by judicial authority or left to stand and stay to plague us yet does not constitute a tithe of what we are to expect if some recent utterances by great and popular men are to be taken at their face value. "The President in his Harrisburg speech, delivered in the month of October, 1906, says: In some cases this governmental action must be exercised by the States. In others it has become increasingly evident that no sufficient State action is possible, and that we need through Executive action, through legislation, and through judicial interpretation and construction, to increase the power of the Federal Government. If we fail thus to increase it we show our impotency.' "Mark the language. We need '-that is the old familiar tyrant's plea-necessity.' To do what? To increase the power of the Federal Government.' The very verb 'increase is the President's word and is a confession that the Federal Government does not now possess the powers desired to be an "An American citizen does not take an oath of allegiance to any government. His cath of allegiance is to the Constitution. Every officer who serves the Federal Government, from the President down, whether he be Cabinet officer, judge, Senator, or Representative, takes this oath. It is now proposed that the Executive officers of the Federal Government shall vest' power in themselves by construction,' to be found,' and that they shall increase' their power through Executive action.' Think of it! And yet in all this broad land no hint or suggestion of impeachment! "This method of amending the Constitution does not require a two-thirds majority in each House nor three-fourths of the States in confirmation of it. It is easy. It requires nothing but momentary forgetfulness of an oath registered in the chancel of God. It is not dangerous. It may, perhaps, even be applauded, if the thing sought to be done be popular with the populace. "What is more, the President proposes to make good'—a phrase he is fond of. I have not time to refer to all the circumstantial evidence in support of this statement, but run over in your minds recent history-Root's part in it in the Philippines; the acts of our proconsular agents; the present condition of things in the Canal Zone, and the frequent chidings by the President of the Federal judges where they do not decide to suit him, showing a purpose of bending and warping the personnel of the Supreme and other Federal courts to an incorporation of his policies, where unconstitutional, by 'judicial construction,' as a part of the authority of the Federal Government. No lawyer not entertaining an opinion favorable to these policies can go upon the bench unless he succeeds in fooling the President or unless the President fools himself as to his legal opinions. Daniel Webster was right when he said that 'the judicial power can not stand for a long time against the Executive power.' The present President has already during his tenure of office appointed one-third of the Supreme Court and over one-half of the subordinate Federal judges. "Judges on the district and circuit bench, although they hold their offices during good behavior,' feel ambition like other men and would like to fill vacancies upon the Supreme Bench, as they arise. They can pursue no course better calculated to bring about that result than to let it be known by their decisions as subordinate judges that they share the President's opinions, and among others, perhaps chiefly, his opinion of the rightfulness of 'increasing' Federal power by construction.' "The difficulty of amending the Constitution is the excuse at heart for most Federal usurpations, this with and even more than, the alleged 'inaction of the States.' It was well that at the beginning the practice of amendment should have been made extremely difficult. The thing was to put the Government upon its feet and teach it to march,' as the French say; to stop experiments with the framework until the people had become accustomed to it. We have reached the point now where there are many amendments that ought to be made to the organic law; first, because they are highly beneficent in themselves; secondly, because we want to do away with this excuse and pretext of usurping power in order to do good.' It has been said that the Federal Constitution can not be amended except as the result of some great cataclysm, or foreign or civil war. It is true that it is very difficult, indeed, to amend it-so difficult as to be, under ordinary circumstances, almost impossible. If you have a system which is too difficult of legitimate change, you therefore invite illegitimate change or usurpation. “Changes by amendment. The first clause in the Constitution that ought to be amended is the amendatory clause itself. Amending the Constitution ought to be difficult, but not so diffieult as it is now. It would seem that to require a majority of 10 per cent over one-half in each House, voting for two successive Congresses to submit an amendment, would be a requirement sufficiently difficult in the initiative. This would require at present 51 Senators and 215 Congressmen, and as that vote would be required in two successive Congresses, the scheme would give the people time to think between the two Congresses and an opportunity to pass upon the proposed amendments tentatively when they came to elect the Members of first Congress after the one proposing the amendment. If to this were added that the proposed amendment should not become a part of the fundamental law unless it shall be ratified both by a majority of the people and by a majority of the States, the practice of amendment would not be rendered so easy as to lead to many propositions of amendment, and still would be made easy enough to encourage a hope upon the part of those who wish to preserve our institutions, that they need not be destroyed because of the very organic difficulty of changing them. "It is not, however-note ye well-in this way that either President or Secretary proposes to go about the introduction of reforms or a redistribution of governmental powers. It is not proposed that it shall be done deliberately by amendment upon the initiative of the National Legislature and by the confirmation of the people in the States, but that powers are to be 'vested' in the Federal Government, and that Federal powers are to be increased' by constructions,' which are to be found; and by Executive action' and 'by legislation' and by a judicial reading into the instrument of that which is confessed, by the very language used, not to have been written into it. "There has been a recrudescence of Federalism here lately alarming in its proportions. We begin to hear a great deal once more about inherent powers,' about 'powers ordinarily exercised by sovereign nations,' and therefore, as it is claimed, to be exercised by the Federal Government and about affairs of 'national concernment.' This latter phrase would include murder, theft, divorce-almost everything pertaining to morals or health. The President talks about court decisions which have left vacancies,' 'blanks' between Federal and State powers, and wants these vacancies and blanks filled, occupied by Executive action,' 'by legislative action,' and 'by judicial construction.' How absurd! No decision of any court could possibly have ever left a blank or a vacancy between the powers to be exercised by the Federal Government and the powers to be exercised by the States. The moment the court decides that a given power is not one of those granted to the Federal Government, either expressly or by proper and honest implication, that moment the court has decided e converso that it is a power reserved to the States or to the people by virtue of the tenth amendment. "Much has been written about what is meant by the phrase 'or to the people' in this amendment. In my mind it is clear; the powers not delegated are reserved either to the States or 'to the people' for redistribution, as they may choose, by amendment of the Constitution. Both State and Federal governments are their servants, not their masters. The people of the United States, acting within their respective States, have reserved the right of further distribution of governmental powers. Again, individuals have also certain natural and inalienable rights, to which reference is likewise made in the phrase. These are by nature reserved to the people,' as individuals, as rights not to be touched either by State or by Federal Government-by any governmental or political agency whatsoever. That man does not understand the nature of American institutions who thinks that arbitrary and unlimited power is vested anywhere under our system, even in a majority of the people themselves, acting through any government or of themselves. There are things which under our system a majority can not do, whether they are right in their opinion to be done or not; thus high was the sacredness of individuality held. by our forefathers ! "I was talking a moment ago about the influence of the Executive over the judiciary-quoted Daniel Webster to the effect that the judiciary 'could not long stand against the influence of the Executive-and yet the spirit of the time is such that it has been gravely proposed in a bill introduced in the House to make this influence still greater. That bill, introduced on January 4, 1907, provides that the President may, 'whenever in his judgment the public welfare will be promoted by the retirement of a judge,' retire him and appoint somebody else, 'with the advice and consent of the Senate,' who shall take his place in the exercise of judicial functions. This would give to the President and to the Senate of the United States absolute control over the judiciary. "Our executive department has carried the Root doctrine into its dealings with Congress. Where Congress will not enact legislation that the Executive wants and loses patience about, some administrative department construes it to exist. This was the case in the graded-age-pension ukase, issued by the Commissioner of Pensions. A bill has been pending in Congress to accomplish the precise result; Congress would not pass it; the Executive, through the Commissioner of Pensions, amid popular applause, construed it into existence. 66 When, later, it was proposed upon a general appropriation bill to insert a clause enacting into law the graded-pension system thus promulgated, the point of order was raised that the motion could not under the rule be entertained by the House when a 'general appropriation bill' was under consideration, because it was 'contrary to existing law.' In other words, that the amendment containing the very language of the ruling of the Commissioner of Pensions was confessedly a change of existing law. This point of order was sustained. Sustaining it was an admission of the fact that the Executive order had promulgated a new law-that a branch of the executive had legislated. If, on the contrary, the point of order had not been sustained, then the very fact of the adoption of the amendment would have been a confession of the fact that Congress needed to act in order to make lawful that which by Executive order had been promulgated. "Again, a treaty with Santo Domingo was pending before the Senate of the United States which the Senate for a long time refused to confirm. The Executive, being determined to have its own way, Senate or no Senate, did, as a historical fact, for two years before the ratification of the treaty by the Senate, execute the terms of the treaty. 'Yet, again, the President at one time having a nomination of a certain South Carolina negro named Crum pending in the Senate, and the session having come to an end without action on it, and thereupon an extraordinary session having been called to begin at 12 o'clock on the very day upon which the former session expired, Secretary Root and the President between them construed into existence what they called 'a constructive recess '-that is, that between the beginning of 12 o'clock and the end of the same 12 o'clock on the same day there had been a constructive recess,' and that this being the case, the President had a right to reappoint this proposed appointee during this so-called 'recess.' He did reappoint him thus contrary to law, and the Senate was subsequently coerced or persuaded to confirm him. "The logical inconsistency of public opinion in America was never better shown than with regard to this incident. The President's construction into existence of a constructive recess' for the purpose of saving his right of appointment aroused no indignation, although it was the act of one man. He had, however, set a precedent which soon found imitators. If there had been a recess, then Members of Congress were entitled to mileage for the recess or, rather, the new session following it. They therefore very logically, according to the precedent set by the Executive (although of course very wrongfully, but more wrongfully than the President) voted themselves mileage for the 'recess.' no "A storm of disapprobation from the throats of the people and the columns of the newspapers swelled to heaven. The Senate voted the extra mileage out, and President, people, and all congratulated the country.' The man who imagined the iniquitous thing and acted upon it secured the result that he aimed at and was little, if at all, criticised. The very Senate that voted extra mileage out of the law upon the ground that there had been no constructive recess finally confirmed the appointee whom the President had hurled back at them upon the opposite theory that there had been a constructive recess. "Franklin Pierce in a recent book, that ought to be taught in every school and college where civil government is taught, a book entitled Federal Usurpations,' from which I have drawn much for this speech, says: 'Social evolution progresses actually with the importance of the citizen over the State and de |