Arizona republican., 1909-06-25
A RETURN TO THE LAW.

The final disposition yesterday of
the case of the Navajo Indians who
have been detained at hard labor" at
Fort Huachuca for the last two
years, illustrates that the govern
ment is being run again according
to plain law; that officials shall be
permitted TO exercise only so much
authority as the laws confer upon
them; that the courts are not to be
ignored however desirable the end
to be attained but which is unat-
tainable by reason of the paucity of
laws.
Within the last few years there had
grown up a disposition on the part
of executive officers to supplement
the laws and to assume that there
would have been such laws as seemed
to be needed if congress had done
its duty; but as it had not met the
growing needs of the republic it de-
Volved upon the departments to find
ways of their own and proceed in the
absence of law.
This disposition which is now be-
ing happily checked, is found in an
article in the current American Mag
azine, "Taft-So Far" It is a COM
parison by a writer who calls himself
k" between Taft and Roosevelt
rather invidious to the former. The
judgment of the writer can perhaps
be gathered from the following ex-
tract:
Whenever a question comes up
for decision, the ordinary government
official looks in his law book and if
he cannot find an express authorize
ton in definite words he will not
stir.
~ can't find it in the law he
says, therefore it cannot be-
Roosevelt burst asunder such
swathings of timid legalism. He took
just the opposite position, that new
situations which threaten the peoples
interests required immediate action
on the part of the executive, and he
proceeded to exercise his power in
any case where the statutes did not
expressly prohibit his action"
1t has not been the opinion of
thoughtful men of any age that dis
cretionary power is a good thing.
The doctrine that an official can do
whatever he is not expressly for
hidden to do. is a dangerous one,
pointing the way, however high the
motive. TO excuses. 1t moreover en-
courages a contempt for the law such
as X expresses in the phrase "timid
legalism." The doctrine is based upon
the theory that the public safety is
to take precedence of the public safe
guards. And what executive official
is so infallibIy wise that he can de
ternine in the most complicated cases
what the public safety requires? The
public safeguards, however, are def
mite and certain. In them are rep
resented collaborating wisdom and
experience.
Morley in his monograph, Rous-
seau, in accounting for the excesses
Of the French revolution, brings this
idea out clearly: "Couthon laid the
theoretic basis Cof the infamous law
of ed PrairiaD in a fallacy that must
always be full of seduction to shallow
persons in authority: He who would
subordinate the public safety to the
inventions of jurisconsults and to the
formalities of courts, is either an
imbecile or a scoundrel' As if the
public safety could mean anything
but the safety of the public. All
becomes legitimate and even virtuous.
Helvetius had written, on behalf of
the public safety but Rousseau was
wiser in ibis marginal note: The
public safety is nothing unless the
individual enioVs security'"