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Senator A. F. Thomas, of Virginia, on State
'Rights and Federal 'Encroachments.
The more thoroughly the mattei is
examined, the plainer it appears that
the Virginia passenger rate case in
volves the question of Stale sover
eignty and, if the contention cf the
roads is sustained, local government
will have been destroyed by the fed
eral judiciary. Neither in the re
ports of the pleadings as Asheville,
nor in the demurrer died by the Cor
poration Commission does it appear
that Virginia has raised the one vi
tal question upon which sat can con
fidently rely for victory 1 It is this;
Is the judgment of a federal court
a necessary element of due process
of law? This is the crux of the con
tention. Virginia seems to have
acted upon the assumption that final
judgment upon the matter must be
sought in the federal court. This
is fallacious. The fourteenth amend
ment neither denies nor abridges the
right of the States to deprive any
person of life, liberty or property.
It simply prescribes the method by
which the States must act when they
deprive any person of auy of the
three. The method employed must
constitute due process of law.
This amendment places life, lib
erty and property in the same cate
gory, and affords each the same pro
tection. The State may seize the
person, deprive him of his liberty,
even take his life, or it may confis
cate his property, but the person must
have the benefit of due process of
law. Whether the person is allowed
to retain his life, liberty or property
is primarily a matter of legislative
discretion. The enactment must bo
equal and uniform, and apply impar
tially to all under like conditions.
The person, whose right to life, lib
erty or property is in question, must
be given his day in court, and there
receive impartial treatment This
constitutes due process of law.
The courts have held that the right
of review by an appellate court in
capital cases is not a necessary ele
ment of due process of law, but it is
wholly within the discretion of each
State to refuse it or grant it on
terms, 8 Cyc, citing Andrews v.
Swartz, 156 U. S. 272. If, then, the
State may take the life of the per
son when one of its inferior courts
has decided the case, and yet meet
the requirement of due process of
law, with how much more reason may
it take his property by the same
process without infringing this amend
ment f
It should be observed here, in the
case above cited, that the judgment
of the State court on the merits of
the ease was final. If, then, this be
true of the person’s life and liberty,
is it not equally true of his property ?
Virginia, through her commission,
gave the roads their day in court, and
in addition vouchsafed to them, what
the person cannot claim when his life
is in jeopardy, an appeal, as a mat
ter of right, to the Supreme Court of
Appeals of the State, thus more than
fulfilling every requirement of due
process of law.
It is conceded that the State has a
right to regulate rates. Tt has been
a legislative discretion for hundreds
of years, coming down from the old
English law. The fourteenth amend
ment was not intended to limit this
WATSON'S WEEKLY JEFFERSONIAN.
right. Neither the author nor adopt
ers of it had any such idea. It was
added to the Constitution to protect
the negroes in their civil and political
rights as citizens.
In the Granger cases the Supreme
Court of the United States held,
“Where property has been clothed
with a public interest, the legislature
may fix a limit to that which shall in
law be reasonable for its use. This
limit binds the court as well as the
people. If it has been improperly
fixed, the legislature, not the courts,
must be appealed to for the change.’’
Peik v. Chicago, etc., R. Co., 94 U. 8.
99. The later doctrine that rates
must be the subject of judicial en
quiry, and if prescribed at less than
cost are confiscatory, and taking pro]>
erty without due process of law is
simply an example of court made law,
a plain and palpable misinterpretation
of the Constitution having the effect,
as most usurpations do, of removing
power from the hands of the many
and vesting it in the branch of the
government farthest removed from
the people. It is only another in
stance of wise judges trying to save
the foolish people from the conse
quences of their own folly.
It may be observed that it is a well
settled doctrine that courts have noth
ing to do with the policy of the law.
Their function is to interpret cor
rectly and enforce impartially all
law, whether wise or foolish, unless
it plainly contravenes - constitutional
law\ But conceding, hypothetically,
that rates must yield at least cost in
order that the regulation may con
form to the requirements of due proc
ess of law, they at once become sub
jects of judicial enquiry. It has al
ready been shown in the case of cap
ital punishment that the judgment of
the inferior court of the State was all
that was necessary to meet the re
quirement of the Federal Constitu
tion and as life, liberty and property
stand on equal gorund, is it not con
clusive that the judgment of-the State
court is final as to property also!
If the States have any sovereign
powers, their Supreme Courts neces
sarily possess the power of final judg
ment upon all questions arising un
der these powers, and, therefore, in
matters of judgment of questions
purely intra-state, the Supreme Courts
of the States occupy the same rela
tion to the Supreme Court of the
United States that the court of one
power bears to that of another equal
ly independent. In other words, each
court, State or Federal, is supreme
within its sphere. There can be no
doubt that this was the view enter
tained by the framers of the Federal
Constitution, and it should be re
spected by all, unless they are pre
pared to deny the efficacy of govern
ment by written constitutions.
If, however, the judgment of a Fed
eral court is to be made a necessary
element of due process of law, than
it must apply to life, and liberty as
property, and every case involv
ing life, liberty or property can, of
right so far as the State courts are
concerned, be appealed to the Federal
court for final judgment in order to
perfect due process of law. Such
doctriqp is utterly subversive of the
theory of division of powers between
the States and the Federal govern
ment and introduces a form of cen
tralization which, logically, can have
but one result—the utter subordina
tion of the States to the Federal gov
ernment. Under this view the most
inferior Federal court could lock the
wheel of State government at any
time, and the States would only have
left the inform wihout power, and
pretension without respect
After an examination of authorities.
I am of the opinion that the United
States Supreme Court has not passed
upon the question, “Is the judgment
of a Federal court a necessary ele
ment of due process of law?” I do
not believe that it will so decide. Such
decision would inject a Federal ques
tion into every case which involved
life, liberty or property, and would,
therefore, make every case, however
trivial, appealable to the Federal
Courts for final judgment.
It is to be hoped that counsel for
the State will raise and press this
point in the coming trials. It is evi
dent that the railroads desire to crip
ple the State’s power of regulation by
securing a decision that will estab
lish the jurisdiction of the Federal
Courts, thus empowering the most in
ferior Federal Court to paralyze the
State by its power of injunction.
It has been somewhat a surprise
that the press of the State has not
discussed this feature more fully.
The matter of a two-cent rate sinks
into insignificance beside the more
weighty question of preserving our
dual form of government and pro
tecting the State against the Federal
judiciary which, as Jefferson clearly
saw, is the source from which most
danger is to be apprehended. An im
perialistic president in his attack on
the reserved rights of the States may
slay his thousands, but a decision of
the United States Supreme Court es
tablishing Federal jurisdiction in
cases of intra-state nature would play
its tens of thousands.
Very respectfully,
A. F. THOMAS.
Lynchburg, Va., Oct. 2, 1907.
HOW THE SCHEMER WORKS
THE EDITOR.
Country newspaper editors and
publishers are tempted by grafters
and schemers probably more than
anybody else, and at least as much,
that is, if the plan of operation is a
broad one, and one intended to reach
the greatest number of people. The
country newspaper man is suscepti
ble, first, because he is trying every
way he can to make a decent living,
and live a little better than his sub
scribers, and secondly, because he
wants to be important as possible,
especially in his home town, and has
the natural desire to take the initi
ative among his people. There fru
it is not a great surprise that adver
tising agents, working for patent med
icine concerns and corporations, and
for themselves, individually, who
have been chased away from the
fields of legitimate work, have re
treated to the hemisphere of the
country editor to play their intelli
gent or clever tricks upon the
lie, or the country paper—which?
The country editor is often speak-
ing of his newspaper connections it
New York, and New Yorkers are
artists in the line of scheming, for
most every one in New York schemes
one way or another. As the former
editor of a weekly magazine, long
since dead, I received a proposition
by mail, evidently made the same to
all small publishers, principally in
the South, that is one of the very
best for cleverness 'that has ever
come to my notice. The circular let
ter, accompanying the matter, read
thus:
“In a recent correspondence, I re
ferred to the new discovery German
Grains, a cure for indigestion, etc.
“To my surprise I received 80 re
quests for the address of the com
pany, etc.
“I have since learned that 85 pel
cent of people are afflicted witjr
stomach trouble, and are deeply i.|
t erested in a bona fide cure. b
“The owners are making such
marvelous cures, I went to see f
myself. The thing is a wonder.
“They proposed giving me on each
sale $1 —50 per cent.
“Advertising costs a great deal
money, and is not very effective on
an article that 1 smacks’ of being or.
might be classed with patent media
eines.
“This is not a patent medicine!
and the sale of one box leads t\
dozens. Now it has just occurred A >
me that you could make quite a lot
of extra dollars operating with me
there—they have had several inquir
ies from your section already.
“I would like to experiment and
make you this proposition: 1 will
send a weekly New York letter to
you—made up of live news —topics
of New York, etc. —(Approved by,
you) slight reference to German
Grains—(leave out if I make it too
strong); will ‘key’ so as to reccf,
nize and record to your credit es||T
inquiry—and send you weekly 25 nt
cent, being half I get. 11
“Think this over well, understai «
I will' use intelligence in weaving •
the reference —and do it in such
way as not to be recognized by a
out, but you, as a •bid’ for busine
“The thing is so great and gc
(here is no telling how much we c
do—
“I verily believe you would j
$250 the first year out of it Le J
hear. ’ ’
A sample of one of this gent
man’s articles, taken from a copy|
one of his regular New York 11
ters, reads as follows:
“A good man, no matter what 3 .
politics or religion is, deserves the.
commendation of his fellowmen. Gov
ernor Charles E. Hughes, of New 1
York State, is the one your corre
spondent has in mind at this time.
This is not written to further th*j
political chances of Governor Hughes
but simply and solely to give horji
to whom honor is due. Hughes is!
man —a make up such as the writll
has never before seen, and it is I
truth the man does not care whethS
he is further favored or not politj
ally; he is a nature’s nobleman whr
does right, though the heavens fall-/
lets fly the chips no matter
they hit. His first and sole thfi
seems to be the right. A Clp’*"
tried and true, son of a
preacher, his training was I
and he has never deviated V\
As some one put it * novelty V f
great asset in politcs.’-- The oh'