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PAGE FOURTEEN _______ - ■ * ’’ 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'