The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-01-10
Caleb Cushing Nominated for
Chief Justice.
Retrenchment Alone Not Adequate to
Relieve the Treasury.
Opposition Of the War Department to
Army Reduction.
Government Regulation of
Railroads.

Nomination OF Caleb Cushing for Chief
neutrality-suspicious. Regarding the
Mission 10 Madrid.
The nomination of Caleb Cushing. Minister to
Spaint to be Chief Justice OF the United States
was received in the Senate with marked satisfac-
tion. Senator Sumner expressed his appreciation
in emphatic terms. and 10 this he was followed
by q number OF other Senators equally
prominent. There is no doubt that the
nomination will be confirmed at the next
executive session. The embarrassment occasioned
the friends of the administration by the nominal
ton of such an unit person as Williams led to no
little anxiety as to who should follow, and nume-
rous inquiries were passed around in the desire to
obtain information as to the probable new APP
pointee. These Senators evidently had no desire
to fall into such another disagreeable con-
troversy as in the Williams case. When
the Presidents secretary appeared, some-
what late in the day, the announcement
OF O message from the President Of the United
States struck the Senatorial ear with unusual i'm
portance. When the name OF Cushing was men.
toned great relief was shown and expressed.
The nomination was made entirely without Mr.
Cushngs knowledge. All day he had been busily
engaged in arranging his affairs in view Of his de-
parture for Madrid, two weeks from tomorrow.
About four O'Clock this afternoon he received
him on the honor conferred upon HIM. He was
naturally considerably surprised at the announce
ment and could hardly credit 1t until subse-
quently confirmed Mr. Gushing has not as yet
received his commission as Minister, it being
customary to accompany it with instruc-
tlons. Upon his confirmation as Chief Justice
he will resign, unless the President should
still desire him to carry out his mission
to Spain, before assuming the duties OF his higher
ONCE. This he could do without any violation of
law, as may be shown by the following prece-
dents:-John Jay, the first Chief Justice OF the
Supreme Court Of the United States. while
holding that of1ce, was appointed Minis
ter to England. he transacted the duties
OF his mission. and having completed these
resumed his judicial functions. Mr.. Jay, when
appointed Chief Justice. was holding over as
Minister ofForeign Affairs under the Confederation
Oliver Ellsworth, appointed in 1896, while Chief
Justice, was nominated and confirmed Minister to
France, and having performed these diplomatic
duties returned to preside over the Court.
Chief Justice Marshall was appointed in
1901 while Secretary Of State, and for
short time after continued to act ig That once. 1t
will be seen that the courts and diplomacy in
those early days were sometimes united The
construction of the law at that time was that the
prohibition Of exercising two functions applied
to salaries and not to ONCE. The
received opinion now is that 1t applies
to both. This, however, is not sustained
by the law. which merely says that no person, who
holds an once under the federal government.
the salary or compensation OF which exceeds
$2,50o shall receive the compensation Of the
other office. There is no provision OF the
constitution or statutes to prohibit the holding
of two onices. The act Of 1850 again, says that
no person shall receive the allowance Of two
Ofices at the same time. The act Of 1852 forbids
person from receiving more than one salary.
Chief Justice fancy decided that there is no
law to prohibit person from holding two offices
at the same time. Hence, II the President should
see 1T to continue Mr.. Cushing in his diplomatic
duties he can do so. An impression seems to pre-
vail that there Is q approximation law governing
federal Judges. The only law approaching this is
one which states that after having served 10 years
and passed the age OF 70 any Judge Of . United
States Court may resign on q pension. Judge
Nelson was the first and only example under
this provision. Mr.. Cushing is now 70
years Of age. but as vigorous In in
tellect and body as man of so. His
nomination for Chief Justice took the Senate by
surprise. He had just been confirmed as Minister
to Spain, for which position his services were
sidered indispensable to the settlement of the
perplexing state Of affairs now existing be-
tween the United States and Spain, growing
out Of the Cuban troubles After the withdrawal OF
the nomination OF Williams Senators had been
discussing who was most likely, OF their own mem.
bers, to be named for the place. 1t will be remem-
bered that twice this week, in these dispatches
it has been stated that in case Of the withdrawal
Of Williams Cushing would be the forthcoming
man, as it was known that the Pres-
dent had It not been for influences
brought to bear upon him, would have made
Cushing his first nominee. Aside from his personal
ppreciaton Of the eminent fitness of Cushing for
the once. there was the desire to recognize the
services OF the American counsel at the Geneva
arbitration by some marked testimonial.
or the three Geneva counsel Evarts was passed
by because Of the personal pique entertained by
the President toward him on account of his con-
nection as counsel in the Andrew Johnson i'm
parchment trial. Waite, of ohio. was but little
known to the country at large. There remained
then but Cushing. After he had allowed himself to
be persuaded out Of his first choice he was at
loss whom to select He had promised that the
nomination should be sent in early in the
present session'of Congress. So, without reject
ing, in the haste of the moment he rendered It to
Williams. The result is known. Conkling, so
generally spoken Of for several months previous
to the assembling Of Congress- had the strong
personal good Will OF the President but the Sena-
tor had no desire to abandon his active political
life for the dignity and honor attending this
high judicial position. The high hon0rs which
have thus within the last few days been showered
upon Caleb Gushing must cause him to realize the
truth of the old proverb at never rains but 1t
pours." The nomination Of Mr.. Cushing was re-
ferred to the judiciary Committee, and immedi-
diately favorably reported to the Senate. Sena.
tor Norton objected in executive session, and
yiaoo
sion. Some Of the Senators think Mr.. Cushing TOO
old, others that he is unreliable and others
that he is not qualified. The trouble is that the
main body Of the Senate IL not competent
to judge and, while it sought to impress upon the
country its condemnation OF an inferior appoint
ment in the name Of Williams the opposite more Is
bewildering in the name Of Cusning. Williams was
not competent Cushing is too able. but he will be
confirmed.
Hone OF Increased Revenue from Gus
toms.