The sun. [volume] (New York [N.Y.]) 1916-1920, 1918-12-28
HUGHES ATTACKS
SEIZURE OF CABLES
Argues in Burleson Suit That
President Exceeded Power
Given by Congress.
SAYS MENACE HAD GONE
Judge Hand Asks About the
Courts Right to Review
Acts of Executive.

J Opposing m effort of the Government
to quash the suit OF the Commercial
Cable Company against Postmaster-Gen-
eral Burleson and Newcomb Carlton, d.
rector Of the merged cable systems under
Government control. Charles L. Hughes
argued yesterday before Federal Judge
Learned Hand that President Wilson vio-
lated the spirit of the statute when he
proclaimed the seizure of the cable sys-
| TENS after Germany had collapsed and
the danger OF armed aggression had
passed.
Mr. Hughes spoke in opposition to Ed
ward F. McClennen. special assistant to
| the Attorney General and Harold Harper,
Assistant United States Attorney, who
| argued in support of a motion to dismiss
the suit, asserting lack of jurisdiction by
the Federal District Court. Mr.. McClen-
men declared that an injunction directed
/ against the Postmaster-Genera and D.
rector Carlton would be futile, and that
the tribunal to which the complainant
| should resort with the allegation that
the President exceeded his powers is
Congress sitting as q court of tmpeach-
| ment. He said that it was1hard to be-
leve that the court would permit a pro-
ceeding to continue which might lead to
the spectacle OF the President testifylng
on the witness stand in justification of
his seizure of the cables and to his being
cross-examined by former opponent for
the office he holds
Denies President's Authority.
Mr. Hughes explained that the Post
master-General seized not only the thir-
teen Atlantic cables of the Commercial
and Western Union companies but the
cables to South America and the 10000
mile cable of the Commercial company
to Japan and China as well,
THE only authority for that action"
4 he said, was asserted TO be the procla-
nation OF the President said 20 be in
pursuance of the joint resolution OF Con-
gress OF July 16. 1t was a grant of.
power with a limitation. 1t defined the
emergency in which alone that power
was to be exercised. 1t was a power
that had direct relation to the existence
of danger to the national security. We
submit that action by the President was
not to be based on arbitrary Executive
fiat. but a finding upon facts reason
able judgment permitted by a situation
in which the national security could be
deemed to be actually threatened
At that time there was no menace TO
the national security. The danger which
Congress contemplated and which alone
constituted the condition upon which the
President was authorized to exercise
this very important power no longer eX-
isted."
Judge Hand asked Mr. Hughes IL it
were not true that the termination of
hostlities did not mean that the OBJ
| 20 H. oh, tIn 4
beer achieved and IL II did not follow
that the national security and defense
would not be secure until these objects
had been attained.
Question of Menace to Nation.
, 81 think what may be achieved, in
the sense OF the final results Of the
war. will not be determined during our
lifetime" said Mr.. Hughes He added
that in his views that what Congress
had in mind when it equipped the Presi-
dent with extraordinary powers was
'the presence Of an actual state of ap-
Piled force"
In summing up his contention that
{ the seizure of the cables was an exercise
70 of the war powers after they had eN-
D, pred with the signing of the armistice,
Mr.. Hughes said:
Reading that resolution for the pur-
pose of determining its true spirit and
intent we reached the conclusion that
. the intent was to empower the Presi-
} dent with a means for successfully
{ prosecuting the war and as the resolu-
ton itself provided with a means of
protecting the national security from a
threatened and impending danger. II
did not give authority with respect TO
a condition existing after all threat OF
danger had been removed"
rs that not pretty limited inter-
pretation?" asked Judge Hand. Can
II not conceivably have been the pur-
pose of Congress that the eventual and
n permanent security OF the nation was
the thing to he attained:"
But what is meant by the eventual
and permanent security OF the nation ??
I rejoined Mr.. Hughes. That involves a
4 | consideration of whatever policy may
for the moment fasCinate the mind
Undoubtedly" agreed the court.
" Political Policies an Issue.
II am merely urging upon you what
we deem to be the fair import OF the
resolution as you read II in the light OF
y conditions at the time at which 1t was
passed. We say that the President was
, not authorized to seize the cables in the
q light of any supposed policy for national
n security II tIdl were lile OBJECT NOll'
gress would have acted In a very differ
ent way. National security, in the sense
| OF political policies which may insurt
= prosperity and promote the general well
? fare. is not the sense in which the word:
: are used in this resolution"
81 agree to that" said the court.
= Judge hand frequently questioned thu
lawyers for both sides His questions e
Mr.. Hughes appeared to indicate 6
: doubtful attitude toward the contention
!, that the Presidents war power undel
d the resolution ended with the signinl
, OF the arnistice. His questions TO Mr.
McClennen were TO draw his views II
| regard to the power Of the courts to re
view acts Of the President
Mr. Hughes summed up his views o
| the contentious In support OF the Gov
ernment's motion to dismiss as follows
IAN the difficulties that inhere in
suit against the United States or agains
o the President are not present here. TO
n the United States is not sued and tn
: President IL not sued The question 1
: whether, when individuals are sued, the!
r can conclusively challenge the right u
bring them into court by saying tina
they are acting under order of the Pres
n ident and that the possession which the,
y are seeking to maintain is sought to b
4 maintained on behalf OF the Unite
d States"
: cites No Man Above Law Case.
Mr. Hughes cited the case OF tn