Part 15

During the campaign of 1908, President Roosevelt fiercely denounced Mr. Bryan and Mr. Gompers for the plank above quoted but which he has now adopted. He then wrote a long letter to Senator Knox in which he exposed the danger and dishonesty of this plank. It would be necessary to read the whole of the letter in order to appreciate President Roosevelt's indignation and horror that Bryan and Gompers should favor such a proposition. I shall quote only a few sentences as samples of the whole. President Roosevelt then wrote as follows: "This is the plank that promises the 'remedy' against injunctions which Mr. Gompers asked of Mr. Bryan's party. In actual fact, it means absolutely nothing; no change of the law could be based on it; no man without inside knowledge could foretell what its meaning would turn out to be, for no man could foretell how any judge would decide in any given case, as the plank apparently leaves each judge free to say when he issues an injunction in a labor case whether or not it is a case in which an injunction would issue if labor were not involved." Later the President continued: "Mr. Gompers, now Mr. Bryan's open and avowed ally, has, in the letter here quoted, attacked the federal courts in unmeasured terms of reproach because, by a long line of decisions, the equity courts have refused to make an outlaw of the business man, because his right to carry on a lawful business under the peace of the law has been protected by the process of injunction, because in a word one of the most vital and most fundamental rights of the business world--the right of a business man to carry on his business--has been sustained and not denied by the processes of the courts of equity. This sweeping attack of Mr. Gompers upon the judiciary has been made in a frank and open effort to secure votes for Mr. Bryan." Mr. Roosevelt concluded the letter as follows: "But there is another account against Messrs. Bryan and Gompers in this matter. Ephraim feedeth on wind. Their proposed remedy is an empty sham. They are seeking to delude their followers by the promise of a law which would damage their country solely because of the vicious moral purpose that would be shown by putting it upon the statute books, but which would be utterly worthless to accomplish its avowed purpose. I have not the slightest doubt that such a law as that proposed by Mr. Bryan would, if enacted by Congress, be declared unconstitutional by a unanimous Supreme Court, unless, indeed, Mr. Bryan were able to pack this court with men appointed for the special purpose of declaring such a law constitutional."

The Progressive plank against the power of the courts to punish for contempt is equally revolutionary. It declares in favor of depriving the courts of the power to punish for contempt except after a trial by jury.

The crusade to deprive the courts of the power to punish for contempt began at the time of the Chicago strike of 1894 when Eugene Debs and his fellow-conspirators were found to be guilty of open, continued and defiant disobedience of an injunction order of the United States court which had been duly served upon them. It will be recalled by most of you that if the courts had not then had power to punish for contempt without a prior conviction by a jury--and imagine the chance of an impartial jury-trial during the continuance of a great riot--the Debs party would have had the city of Chicago and the great railway commerce passing through it completely at its mercy. All who want to know the facts and to realize the danger from the condition of affairs then existing should read Mr. Cleveland's account of the strike in his book on "Presidential Problems," published in 1904, and the opinion of the Supreme Court of the United States unanimously upholding the punishment of Debs and his associates for contempt.

The power of the courts to punish for contempt has, from the earliest history of jurisprudence and as far back as the annals of our law extend, "been regarded as a necessary incident and attribute of a court, without which it could no more exist than without a judge," and "a court without the power effectually to protect itself against the assaults of the lawless or to enforce its orders, judgments, or decrees against the recusant parties before it, would be a disgrace to the legislature, and a stigma upon the age which invented it." The Supreme Court of the United States declared in the Debs case that "this is no technical rule. In order that a court may compel obedience to its orders it must have the right to inquire whether there has been any disobedience thereof. To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency."[63]

The bait now offered to the lawless and misguided among the laborers of America by Mr. Roosevelt is the abolition of the only effective means of preventing violence and the destruction of property in labor disputes, first, by taking away from the courts the power to issue injunctions and, secondly, by emasculating the power to enforce obedience to their orders and judgments. Of course, if any such revolutionary and anarchistic measures were now embodied in the organic law of this state, as proposed by the Progressive state platform, the community would be placed completely at the mercy of the violent and the lawless. Is it not lamentable and humiliating to see an ex-President of the United States and an ex-member of his cabinet and ex-ambassador thus pandering to the mob spirit for votes?

In conclusion, I want to add that the American people know where President Taft and Vice-President Sherman stand on every great question before the people. They have been tried and not found wanting. These candidates can be trusted and relied upon to keep every pledge of their party's platform. If anybody can now tell where Governor Wilson stands, except as a free trader, a radical and an opportunist, he is much more discerning than most of us are. The glory of our party is that for fifty-six years, in victory and in defeat, it and its candidates have stood consistently and uncompromisingly for the principles of human liberty and human progress. It is still the party of principle and of progress, as it is the party of protection for American labor and industry. President Taft would be entitled to the gratitude of the whole nation, irrespective of party, if the only service of his administration had been his attempt in good faith to withdraw the tariff from party politics, to introduce some system in fixing the amount of necessary protection to be determined by experts and non-partisan boards, and to establish business-like methods of economy and efficiency in every department. Great honor, too, will the future historian record to his credit when recounting that in a period of political upheaval, of social unrest and discontent, of impatience with law, of pandering to revolutionary instincts, he stood as President of the United States firmly, uncompromisingly and sturdily for the right, and put all his trust and confidence in the sober second thought and profound patriotism of the American people, in their attachment to law and orderly progress, and in their determination that the American system of constitutional representative government "shall not perish from the earth."

FOOTNOTES:

[Footnote 62: Address as temporary chairman of the New York Republican State Convention, at Saratoga Springs, September 25, 1912.]

[Footnote 63: 158 United States Reports, p. 594-595.]

NOMINATING CONVENTIONS[64]

The Direct Primary Law of 1911[65] abolished all political conventions except the state convention, but the Direct Primary Law of 1913[66] went further and abolished the state convention, striking the article on conventions and even the definition of a convention from the text of the law. Although the new law contains in section 45 a provision that nothing therein contained shall prevent a party from holding a party convention, to be constituted in such manner and with such powers in relation to formulating party platforms and policies and the transaction of business relating to party affairs, as the rules and regulations of the party may provide, not inconsistent with the Election Law, it was clearly the intention of its framers that such party conventions should not deal with the most important subject which parties had theretofore dealt with, namely, the nomination of candidates for public office. Indeed, section 46, as amended in 1913, expressly provides that designations of candidates for party nominations shall be "by petition only" in the manner provided in the Election Law.

The privilege of nominating elective state officers by means of delegate conventions thus denied by the Election Law of the state of New York ought, in my judgment, to be recognized as essentially a constitutional right, which the legislature should not be at liberty to abridge. The right to assemble peaceably for the purpose of nominating candidates is certainly a political right of permanent importance and vital concern to all citizens, and it should be guaranteed by constitutional provision and not left to abridgment or denial by the legislature. The present state constitution regulates the qualifications of voters, the registration of citizens entitled to vote, and the creation of registration and election boards. But it does not contain a single provision in regard to nominations for office, even for the office of governor, although nominations for state offices are of far greater importance to the body politic than many of the matters now regulated by constitutional provision or recited in the bill of rights. I desire to urge upon your careful consideration the value of nominating conventions as a constitutional right.

The constantly increasing functions of the modern state have made the executive and administrative departments the most important and powerful branches of government, and the increasing complexity of governmental machinery has rendered it absolutely essential that competent and trained public officials should be chosen. Government has become an extremely difficult and scientific business, and special capacity, training and expert knowledge are more and more required in executive and administrative office. The test of a good government is more than ever its ability to produce good administration. If we are to have efficient and avoid wasteful administration, the greatest care must be exercised in selecting candidates. As Governor Throop said nearly a century ago, "there is perhaps no part of the duties of citizenship which requires more sound judgment and honesty and singleness of purpose than those relating to the nomination and election of executive and administrative officers." Indeed, good government depends in final results much more on the ability and character of the men who administer it than upon laws or institutions. The maxim, constantly on the lips of so many, that a government of laws and not of men is the controlling desideratum, may be grossly misleading, for the best system of laws in the hands of incompetent, inefficient and dishonest administrators will produce far worse results than an inferior system in the hands of competent, efficient and honest public officials. The most difficult task and the highest duty that our electorate are ever called upon to perform is, therefore, the selection of candidates for elective state office. In order to perform that duty, it is imperative that there should be adequate and reliable means of information, full opportunity for conference, exchange of views, debate and criticism as to the capacity and character of candidates, and effective methods of cooperation and organization in support of qualified candidates.

The selection of a governor for the great state of New York, containing more than 10,250,000 inhabitants and comprising a political constituency larger than any other in this country, is certainly a matter of vital and profound concern to the whole body politic, to every citizen, to every community, to every party, to every class, to every interest. If the short ballot be now adopted, the successful administration of the whole state government will practically be staked upon the selection of qualified candidates for governor. All hope of governmental reform, efficiency and economy will then necessarily depend upon the statesmanship and character of one man, who will be vested with full executive and administrative powers over a population and a territory larger than some of the nations of the world. A wise and safe choice will be infinitely more essential and more difficult than in the past. In fact, if the views of certain advocates of the short ballot prevail, we are to vest all this power in the governor for a term of four years, without restraint of any kind except his sense of responsibility to the people, and without any effective check upon his will or caprice. We should have to trust him absolutely. We should, in truth, have precisely the definition of an elective despotism and tyranny--beneficent if we are so fortunate and blessed as to secure an exceptionally able and high-minded statesman for governor, baneful if an incompetent, untrained, or scheming politician or demagogue should be elected. The governor would then have it immediately within his power to become an absolute state boss through the use of an enormous and constantly increasing patronage, directly or indirectly reaching and touching every election district in the state. He would be able to break party lines asunder, to promote the interests of any group or faction, to punish adversaries, to cater to any class, to sacrifice the rights of minorities, to substitute his will or caprice for the policy of his party, to permit waste and extravagance, to dictate who should be his successor. A competent candidate for governor who would be so well known and tested as to be safely relied upon to resist this temptation would indeed be a phenomenon. If history teaches us that there is anything certain in human nature, if experience, which is of far more value than any mere reasoning or theorizing, has again and again demonstrated any practical and eternal truth in politics, it is that unrestrained power inevitably leads sooner or later to abuse and tyranny, and that no one official, be he emperor, king, president, or governor, can safely be entrusted with any such power.

We should bear in mind that the extreme advocates of the short ballot, by eliminating all requirements for the approval and consent of the senate in regard to the appointment of heads of the great state departments, would make the governor supreme and independent of the legislature, even more independent and powerful than is the President under the Constitution of the United States. I sincerely hope that the Convention will not make this grave mistake. The number of state elective officers should not be reduced to less than four, namely, governor, lieutenant-governor, comptroller and attorney-general. The comptroller should be made an auditing officer charged with supervision as such over the various departments of the state and independent of the appointing power. The attorney-general should be made the head of a department of justice and the responsible legal adviser of the governor and of every state official. And the heads of all the great departments should be appointed by the governor with the approval and consent of the senate. No governor should be given the unrestrained power to appoint or to remove the heads of all departments. The requirement of the consent of the senate is a necessary and salutary restraint upon all governors, good or bad. It is better and safer that governors should be compelled to submit to some restraints than that absolute power should be vested in even the best and ablest and purest of men. The principle of a short ballot is the decrease of elective offices, but not necessarily the placing of absolute and unrestrained power in the hands of one man.

It is quite true that a state constitution should deal only with permanent and fundamental provisions and should not attempt to regulate matters of detail which can be adequately dealt with by ordinary legislation and which are in their nature and operation readily changeable. I am in full accord in this, as in other respects, with the state platform adopted by the Republican party last year and on which the Republican delegates to the Constitutional Convention were elected. Subordinate and non-essential matters of mere regulation and detail ought not to be embodied in constitutions. But I venture to assert that in reason and sound policy there can be no more important, permanent, or fundamental constitutional provision than one relating to the manner of selecting the highest state officers in whom all the executive and administrative powers of our state government are to be vested. This is a subject eminently fit and proper for a constitution to regulate. If this convention cannot solve the problem of establishing a sound system of nomination for elective state offices, at least in outline and cardinal features, no legislature can be expected to do so. In any event, the new Constitution should emphatically declare that the right peaceably to assemble in a political convention composed of duly elected delegates or representatives for the purpose of nominating candidates for public office, state or local, should not be abridged, as it is abridged by the present Election Law.

I further venture to assert that the question of nominating candidates by delegate conventions involves in its essence the perpetuation of the fundamental principles of representative government and of the republican form of government which the founders intended to establish and to guarantee to each state of the Union.

The one great contribution which the English-speaking race has made to the science of politics has been the representative principle. It has been truly declared that every lasting liberty secured for the individual, every lasting reform towards stability in government and permanent effectiveness in administration, every lasting advancement made in politics during the past two centuries, has been by and through the representative system. The subordination of public officials to the law, and their liability under the law for every illegal act, sprang from the representative principle. The independence of the judiciary, that great bulwark of liberty and of the rights of the individual, has followed upon the growth and success of the representative principle. The vivifying spirit or essence of the representative principle is the determination of all questions of practical government by delegates or representatives chosen by the people, who it is assumed can act more intelligently and better discern the true interests of their country than a multitude of voters dispersed over an extensive territory. Government under the representative principle includes not merely legislation by the chosen representatives of the people, but the practical conduct of the executive department and its administrative branches by officials selected or nominated by representatives of the people. Despite all attacks upon our political institutions and all instances of mistakes and maladministration, the sound common sense of thoughtful citizens still confirms the judgment of the founders of our government that the only safe course is to follow the representative principle. This is as true to-day as it was when the "Federalist" was written. The direct nomination of executive or judicial officers is in utter disregard of that principle.

If the function of legislation is in the long run most satisfactorily performed by a representative body composed of men from every locality and every part of a state, and if it would be unsafe to vest the lawmaking power in the executive branch, does it not likewise follow that the equally important function of selecting candidates for executive and judicial office and formulating party policies and platforms will be better performed by a representative body, such as delegate conventions, than by being left to the mass of voters? If more intelligent legislation and wiser action are likely to result from a representative body than from the confusion of a multitude of voters, is it not also evident that more intelligent and discriminating selection of executive officers will be made by chosen representatives, as in nominating conventions, than by the people at large?

It should be borne in mind that our system of republican government differs from other representative governments in the practical and effective separation of powers. In England and in France the legislators, that is the delegates or representatives elected by the people, appoint and control all executive and administrative officers and carry on the executive and administrative branches of government. There the legislative and executive powers are practically united in the same body. Under our system the legislators do not elect or appoint executive officers. It is, therefore, essential, as I am profoundly convinced, that executive officers should be nominated by duly qualified representatives if the representative principle is to be maintained.

Nomination of executive officers by direct primaries will inevitably be subversive of the true spirit of the representative system, and the secrecy of the vote in the nominating primaries will ultimately be destructive of all sense of responsibility. The enrolled voter marking his ballot in secret will frequently feel no sense of responsibility or accountability to his neighbors and fellow-citizens, and will frequently fail to appreciate that his vote is a sacred trust to be exercised for the good of the community. The secrecy of the primary vote thus does a great moral mischief in destroying the sense of political responsibility and accountability. A public declaration in connection with nominations for office, involving as it does a recommendation to other voters of fitness and qualification for the particular office, is a much more effective restraint on corruption and perversion of the popular vote than any scheme of secrecy which leaves no one publicly responsible for unfit and improper nominations. In my judgment, the primary system tends to promote the nomination of self-advertisers, demagogues and wire-pullers by irresponsible minorities, groups, factions, cabals, or secret societies, generally composed of persons acting in the dark and dominated or controlled by leaders who cannot be held to any accountability, however much they may abuse or prostitute the political power they exercise.

The nomination of candidates for public office, whether national, state, or local, by means of party conventions, caucuses, or conferences, was introduced and long existed without any statutory regulation. The practice sprang up normally and from necessity as soon as the increase of population rendered it impracticable for the voters to come together in mass or town meeting. The body of voters, who could not spend the time necessary to investigate as to the qualifications of candidates, or attend political debates, and who could know little or nothing of the competency and character of candidates, naturally recognized that the best and safest course would be to elect delegates or representatives from each neighborhood, who, meeting delegates or representatives from other districts, could exchange views, criticize, discuss and agree upon policies and nominations, and thus act more intelligently, advisedly and wisely than would otherwise be possible.