Ethics in Service

by William H. Taft

At this Governor Altgeld protested. "I can 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 request 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 answered: "That is true where the insurrection does not relate to the United States laws, but where there is an obstruction of the United States laws, the Supreme Court has decided repeatedly that the President is dealing, not with 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 introduced 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 advised to enact needed legislation for their government. 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 Platt Amendment to the Cuban Treaty, suggested by Senator Platt 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, therefore, 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 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 Platt Amendment 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, therefore, 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 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 with 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 in pursuance of his constitutional duty to execute the laws even when Congress passes no law on the subject-matter. The Canal Zone was acquired by a treaty with Panama that followed its recognition—a recognition 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 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 President'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 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 contempt 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 frequently 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 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 oversight. 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 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 imposed upon him by the Constitution to see that the laws were faithfully executed. Although there was no specific law on the statute book conferring 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 direction 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 have finally to decide what a statute means when it directs them to do something. Many statutes contain a provision that under that statute, regulations 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 labyrinth, I commend you to the present income tax law.