AN OPEN LETTER

TO THE

PARKER CONSTITUTION CLUB

Pbivatbi.y PbiAted
September, 1904.

Cd3G )00

34 Nassau Street,
New Yokk, Sept. 14th, 1904.
Parker Constitution Club,
Gentlemen :
The impression has been dissem
inated that the laywers who organized your Club had,
after an impartial and judicial examination of the
course of Mr. Roosevelt as President of the United
States, come to the conclusion that he has at
tempted, as you put it in your circular, " to usurp
legislative functions, to exalt the power of the Ex
ecutive above the Constitution, and to commit our
nation to violations of international justice." Had that
indeed been the story of the origin of the Club, the public
might be expected to give serious consideration to its
views, even though all the men whose names are con
nected with its formation have, in the past, been prom
inently identified with the Democratic party. Upon re
ceipt of your invitation to join the Club, on August 30th
I wrote to ask for a detailed statement of the facts and
law upon which your views were supposed to have been
based. In the absence of a reply, and in view of the fact
that you are inviting members of the bar indiscrimin
ately to join the Club without laying before them any
data upon which they may form an opinion, I take the
liberty of assuming that the Club does not occupy a judi
cial and impartial position; but that, on the contrary, it
has been formed for Democratic partisan purposes, that
lawyers are being invited to join it in order to swell its
membership, precisely as in the case of every partisan
campaign organization — in fact that the views and
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opinions of the members of the Club are now bound to be
biased because of its formation, and not that the Club
has been formed because of the deliberate views of its
members. My conclusion is confirmed by the interview
with Mr. Howard Taylor, of your Executive Committee,
which appeared in the Evening Post of August 16th,
Mr. Taylor's words were "The Club will make no hasty
" assertions and take no hasty action. It will investi-
" gate the full records of some of President Roosevelt's
" acts, such as his adding $12,000,000 to the pension roll
" by his executive order, his real connection with the
' ' Panama affair, and other matters in which he has over-
" ridden the Constitution. The Club will be perfectly
" just to him (!)."
Mr. Taylor's definition of the proposed policy and
attitude of the Club brings to mind Mark Twain's story
of the sea captain who acted as presiding judge at a
naval court martial in a case of alleged murder, but who
came into court with a rope in his hand ! The public will
judge for itself whether the Club will be perfectly just
to President Roosevelt when its spokesman announces,
in advance of the examination which he claims it will
make, that the President has overridden the Constitu
tion. We may well ask, why any further investigation?
But while the Club has thus prejudged the case and
placed itself in the rank of mere partisan advocate, fair-
minded and. impartial people may be desirous of learn
ing the merits of the controversy concerning the Presi
dent's acts in "adding $12,000,000 (a pure fiction) to the
pension roll by his executive order, his real connection
with the Panama affair and other matters."
Let us take up first his executive order in relation to
pensions. This order known as No. 28, was issued by
E. F. Ware, Commissioner of Pensions, under date of
March 15th, 1904. It reads as follows :

Ordered, (1) In the adjudication of pension claims
under said act of June 27, 1890, as amended, it shall
be taken and considered as an evidential fact, if the
contrary does not appear, and if all other legal re
quirements are properly met, that, when a claimant
has passed the age of 62 years, he is disabled one-
half in ability to perform manual labor, and is en
titled to be rated at $6 per month ; after 65 years, at
$8 per month ; after 68 years, at $10 per month, and
after 70 years, at $12 per month.
(2) Allowances at higher rate, not exceeding $12
per month, will continue to be made as heretofore,
where disabilities other than age show a condition
of inability to perform manual labor.
(3) This order shall take effect April 13, 1904,
and shall not be deemed retroactive. The former
rules of the office fixing the minimum and maximum
at 65 and 75 years, respectively, are hereby modified
as above.
The gist of the criticism directed against it is that in
issuing this order the President usurped a legislative
function. The Act of Congress of 1890 under which the
order was issued, provides :
Sec. 2. That all persons who served ninety days
or more in the military or naval service of the United
States during the late war of the rebellion, and who
have been honorably discharged therefrom, and who
are now or who may hereafter be suffering from a
mental or physical disability of a permanent char
acter, not the result of their own vicious habits,
whicli incapacitates them from the performance of
manual labor in such a degree as to render them un
able to earn a support, shall, upon making due proof
of this fact according to such rules and regulations
as the Secretary of the Interior may provide, be
• placed upon the list of invalid pensioners of the
United States, and be entitled to receive a pension
not exceeding $12 per month and not less than $6
per month, proportioned to the degree of inability
to earn a support. 3

It is perfectly evident from this, that the Secretary of
the Interior is to prescribe the rules and regulations
under which due proof shall be given of the graded inca
pacity to perform manual labor.
On September 2, 1893, William Lochren, Commissioner
of Pensions, under the administration of President Cleve
land, issued Order No. 241, which reads as follows :
Hereafter, in fixing rates under this act, the medi
cal referee or the medical officer in the board of revi
sion shall weigh each disability and determine the
degree that each disability or the combined disabili
ties disables the claimant from earning a support by
manual labor, and a rate corresponding to this de
gree shall be allowed.
In cases in which the pensioner has reached the
age of 75 years, the rate shall not be disturbed if he is
receiving the maximum, and if he is not a pensioner,
he shall receive the maximum for senility alone if
there are no special pensionable disabilities shown.
It will be observed that by this order, which was con
sidered one of the rules or regulations which the Secre
tary is required to prescribe, the attaining of the age of
75 was directed to be considered as conclusive evidence
of complete inability to perform manual labor and as
entitling the applicant to the maximum pension. Yet
President Cleveland has not been assailed by the Consti
tution Club for usurping legislative functions. The order
issued by Commissioner Ware is far from going to the
length of the order of 1893. It directs only that the at
tainment of certain ages from 62 upward shall be con
sidered as " an evidential fact, if the contrary does not
appear." In other words the attaining of the age indi
cated is made merely presumptive evidence of partial
inability to perform work.
It is thus apparent not only that President Roosevelt

was doing exactly what under the Constitution he is re
quired to do and what his oath of office demands, viz.,
executing a law of Congress, but also, that in so executing
it, he acted within closer limits and with greater conser
vatism than did President Cleveland.
Although President Roosevelt is not criticized by the
Constitution Club for bad judgment in directing that men
of the age of 62 years may be regarded prima facie as
partiaUy incapacitated for manual labor, it is neverthe
less pertinent to note that in the New York daily press
during the past six months there have appeared numer
ous letters from correspondents and editorials pointing
out that the progress of modern industrial development
has rendered it extremely difficult for men over the age
of 60 to procure employment. In fact, in a statement re
cently issued, General Manager Bryan of the N. Y. Inter-
borough Railroad makes the assertion: "In many in
stances they (the engineers) were past middle life, and
have not as readily learned such duties as would younger
men." Our acts of Congress prescribe the compulsory
retirement of army officers at the age of 64 and of most
officers of the navy at 62.
Mr. Taylor's statement that the President's order
added $12,000,000 to the pension roll is purely gratuit
ous. Although the American people has never been in
sympathy with those who count parsimony as a greater
virtue than decent provision for men who offered their
lives and faced assured impairment of their health in the
service of their country, still facts should not be distorted.
The estimate of the Secretary of the Interior at the time
of the promulgation of the order was that it would entail
an annual increased expenditure of $5,400,000 for some
years to come, but the report of the Commissioner of
Pensions just rendered indicates that even this estimate
is vastly excessive. 5

Next, I take it for granted that in charging the Presi
dent with a violation of international justice, you refer to
the matter of the Panama canal. That subject was so
thoroughly thrashed out at the time, and the exhaustive
report then made by the President to Congress under
date of January 4th, of this year, so completely disposed
of the petty and carping criticisms that had been directed
against him, that no responsible legislator has ventured
to refer to the subject since. The United States having
negotiated a treaty with the Republic of Colombia and
having concluded all the attendant arrangements, was
prepared, in a spirit of magnanimity and abstract justice,
to pay to the shareholders of the old Panama Canal Com
pany $40,000,000 and to the Republic of Colombia $10,-
000,000 down and $250,000 annually in liquidation of
their respective interests in what was practically
an abandoned enterprise. The entire civilized world
applauded not merely the epoch-making enterprise of
the American people, but also the fairness and almost
Quixotic justice with which the United States treated
those who had previously but unsuccessfully labored
at this task, as well as the country which had, to its own
profit, granted a concession therefor. However, the
Senate of the Republic of Colombia, arbitrarily ob
structed the project. It is not surprising that the people
of Panama revolted in resentment at this outrage upon
their dignity and this attack upon their present and fu
ture prosperity. In his report to Congress, President
Roosevelt in simple but dignified words which no one has
dared to controvert or even to doubt, assured his fellow
citizens that "no one connected with this Government had
any previous knowledge of the revolution except such as
was accessible to any person of ordinary intelligence who
read the newspapers and kept up a current acquaintance
with public affairs." The Republic of Panama received
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prompt recognition from this country, a step that was im
mediately followed by most of the civilized nations of the
globe. The armed forces of the United States were, with
equal promptness, availed of "to protect the lives and
property of American citizens and to preserve the free
and uninterrupted transit of the Isthmus." These
natural steps which the President in compliance with his
oath of office and his constitutional duty, was compelled to
take, prevented, it is true, the Republic of Colombia from
forcibly overpowering the new Republic of Panama and
thus perpetuating the indecencies and disorders that had
marked that unfortunate state for the past century. This
result may be regarded by the Colombians as a mis
fortune ; but the civilized world may be pardoned for not
sharing the Colombian view of the situation. It does not
seem to be even claimed by the Constitution Club that
any act of the President, — guided as always by the sage
counsel of Secretary Hay, — constituted a violation of in
ternational law. And if, as distinct from international
law, there be an "international justice", President Roose
velt may be regarded in this case by his fellow citizens,
as he will be by future ages, its advocate and executive.
Indeed the people of the United States may be expected
to give less heed to the covert strictures of your Club
than they will to the plain opinion of the United States
Senate which, as is well known, ratified the treaty with
the new Republic of Panama by an overwhelming ma
jority, composed in very large part of Democratic votes.
I do not know what may be the "other matters" to
which Mr. Taylor refers ; but I take it for granted that
they will include at least the President's course in the
anthracite coal strike. It is rather difficult to ascertain,
the precise basis for the attacks upon him in this matter ;
but, in general, it seems to be that he went outside of his

functions as President of the United States in bringing
the miners and the operators to a peaceful agreement
concerning a dispute which had laid a heavy tribute of
cost upon the industries of the country, and a burden of
suffering upon the poor, while it threatened not only a
condition of civil war in the region most immediately af
fected but great hazard in other directions. The Presi
dent 's critics are driven to the remarkable claim that the
only course open to him was to have sent United States
troops into the coal regions. That, they say, is what
President Cleveland did in the case of the Chicago riots
of 1894. Now let us see. Fortunately, President Cleve
land has himself formulated the grounds and purpose
of his action in an article in McClure's for July of this
year. From that it appears (as is well known to every
lawyer familiar with constitutional law) that the obstruc
tion of the functions of the Federal Government was the
moving cause of the Government 's intervention. As Mr.
Cleveland writes : ' ' The key to these despatches of the
Attorney General is found in the determination of the
Federal authorities to overcome by any lawful and con
stitutional means all resistance to governmental func
tions as related to the transportation of mails, the opera
tion of interstate commerce and the preservation of the
property of the United States. ' '
Not one of these elements was present in the coal strike.
The next step at Chicago was the issuance of an in
junction by the United States courts, at the instance of
the Government, restraining Debs and his associates
from interfering with the transportation of the mails and
the movement of interstate commerce. The enforcement
of the injunction was reported by the United States Mar
shal to the Attorney General to be impossible by reason
of violence used in opposition thereto. United States-

troops were thereupon directed to proceed to Chicago, in
the language of General Schofield's order of July 3, 1894,
"to execute the orders and processes of the United States
Court, to prevent the obstruction of the United States
mails and generally to enforce the faithful execution of
the laws of the United States."
It need scarcely be added, for the fact is so well known,
that the Governor of Illinois had not only refrained from
calling out the militia of the State, notwithstanding the
patent riotous conditions prevailing, but, as President
Cleveland says, "he actually protested against the pres
ence of Federal troops sent into the state upon the
general Government's own initiative and for the purpose
of defending itself in the exercise of its well defined le
gitimate functions. ' '
Not a single element or circumstance cited by President
Cleveland as reason and justification for the employment
of Federal troops in Chicago in 1894, was present in the
anthracite coal strike of 1902. Neither the United States
mails, the movement of inter-state commerce nor the
process of the United States courts were obstructed, im
peded or delayed, while the Governor of Pennsylvania
had summoned the entire national guard comprising some
10,000 men to service in the region for the preservation
of the domestic peace of the State. The President was
thus confronted with the peculiar quandary that the
people of various states, citizens of the United States,
were suffering unbearably from the effects of an indus
trial dispute; that the situation both in Pennsylvania
and in other states threatened to become one of great
disturbance, nay almost of civil war, but that so far as
legal justification for forceful intervention goes, there
was none at hand. What did President Roosevelt do?
Not what his critics and opponents are constantly pictur-

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ing him as anxious to do i. e., employ the military. On the
contrary, by peaceful conference and moral suasion, he
brought about a submission to arbitration of the ques
tions in dispute between operator and operative and an
immediate resumption of the normal flow of pent-up in
dustry. The abiding success that attended his sugges
tion adorns a promising page in American history. But
alas for those who love to depict him as the "man with the
big stick", as the ruler on horseback; — he had shown
himself to be a master in diplomacy and a prince of peace.
Thus on careful examination the very acts of Presi
dent Roosevelt which you so thoughtlessly condemn as
violations of law prove to be rather the performance of
his duty in upholding the Constitution and the laws of the
country and in safeguarding the peace and prosperity
of its people with calmness, moderation and conserva
tism. In fact, a little reflection might well convince
every citizen that a President trained to public duties
since his earliest days and surrounded and advised by
men so well versed in civil, constitutional and interna
tional law as Elihu Root, Philander C. Knox and John
Hay, could scarcely do otherwise than strengthen and
sustain the Constitution and laws of his country.
It may be some consolation to the gentlemen who
hasten to defend the Constitution against windmills and
other phantom enemies, that their course has many sad
precedents in American history.
When George Washington, in 1793, issued the famous
proclamation of neutrality, the public press teemed with
the attacks of the so-called friends of France. Among
other outpourings (I quote McMaster's citations), were
these, "The proclamation of neutrality is both unconsti
tutional and unwise. Unconstitutional because the Pres
ident has exceeded his power. The Constitution does not
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indeed say in so many words that he shall issue no such
proclamations, yet it is clearly the meaning of the instru
ment." And Genet, the ill-starred envoy of France, in
protesting to the Secretary of State against the revoca
tion of the exequatur of the French Vice-Consul at Bos
ton, wrote that ' ' He did not recognize the validity of the-
proclamation. He had, thank God, forgotten what such
hired jurisprudents as Grotius and Puffendorf and Vat-
tel had said upon the subject in their worm-eaten writ
ings, but he well knew the President had overstepped his
authority. The Constitution gave the Executive the
right of recognizing foreign ministers but not the power
of dismissing them. " It is a very significant coincidence
that Genet's course, until the very last act of his stupid
blundering, was applauded and supported by the newly
formed "Democratic societies" throughout the United
States. Was not Abraham Lincoln assailed as a tyrant and law
breaker when, within the Constitution and the laws of the
United States, he suspended the writ of habeas corpus in
1862? Was not the Emancipation Proclamation uncon
stitutional? Was not the great martyr President (to use
the term recently coined) an "unconstitutionalist", al
though he wrote "I could not feel that to the best of my
ability, I had even tried to preserve the Constitution, if
to save slavery or any minor matter I should permit the
wreck of government, country and constitution alto
gether"? Was he not compelled to answer Horace
Greeley's attacks, in those memorable words: "I would
save the Union. I would save it in the shortest way under
the Constitution." And last of all, was not Thomas Jef
ferson, the great Democrat, himself attacked in 1803, in
the House of Representatives, for having committed an
unconstitutional act in signing the treaty for the acqui
sition of Louisiana; and was he not charged, in particular
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by Congressman Griswold, with having thereby usurped
the powers of Congress to regulate trade? Again, in
1808, when in pursuance of his duty under the Embargo
Act of 1807, Jefferson caused Secretary of the Treasury
Gallatin to issue his famous circular to the collectors of
customs, restricting certain shipments, he was accused
by New England hot-heads of having usurped legisla
tive functions and overriding the Constitution. There
was even found a Federal court willing to grant a man
damus to obstruct the Executive order, although under
the advice of then Attorney General Rodney, the Presi
dent declined to recognize the jurisdiction of the court.
It is quite natural that membe rs of the Parker Consti
tution Club, as Democrats, disapprove the policy of Pres
ident Roosevelt, but that is something quite different
from the wholesale characterization of his acts as uncon
stitutional and lawless, a course evidently imposed upon
the members by the very name of the organization for
which they are now bound to find justification. I am con
fident that unbiased lawyers will not be influenced by
hasty generalizations and partisan exaggeration. Nathan Bijur.

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