CHARLES EVANS HUGHES

AS SELF-REVEALED

In 1910 Charles E. Hughes was selected to be one of the nine Justices of the Supreme Court of the United States to whom the people have given power to determine with authority what is just. In that work he was engaged till his resignation in June, 1916. Mr. W. L. Ransom has made a careful examination of Justice Hughes's decisions during this period; his book,' therefore, enables the lay reader to see what are the judgments of Mr. Hughes on many of the great questions of right and wrong now before the American people. This is a much more valuable record of the opinions and character of the Presidential candidate than either the platform of his party or his campaign speeches, for it is unaffected by personal ambition or possible political prejudices.

If any reader is inclined to say that the Justices of the Supreme Court of the United States are appointed to determine, not what is just, but what is law, we reply that Mr. Hughes is of a different opinion. He regards law as an instrument for the maintenance of justice, and, therefore, the spirit of the law as the standard by which its words are to be interpreted. This is strikingly illustrated by his dissenting opinion in the famous case of Leo M. Frank, where the question for the Court was whether Mr. Frank had been convicted by "due process of law." The majority of the Court held that it was "due" if it was legally regular ; Mr. Hughes and Mr. Holmes held that it was not "due" if it had been vitiated by mob influence. This putting of practical justice above technical regularity appears to be a characteristic habit of mind with Mr. Hughes.

During his five years and eight months' service in the Supreme Court Justice Hughes prepared one hundred and fifty opinions which were rendered as the opinions of the Court. In only nine instances was there dissent from his opinion, and in but three of those did more than one Justice dissent. Mr. Ransom correctly designates him as a "teamwork Judge." When he dissented from the majority, it was generally, if not always, because in his interpretation of the law he was more progressive or more human than his associates and less governed than

Charles E. Hughes. The State-man as Shown in the Opinions of the Jurist. By William L. Ransom. E. P. Dutton & Co., New York. $1.50.

they by tradition and by the letter of the law.

Mr. Hughes is clearly a Nationalist. He holds, with Chief Justice Marshall, that the United States is a Nation and has all the powers and prerogatives of a Nation. During his judicial tenure the question of the power of the Nation has been especially involved in dealing with the National railways, and his opinions on this subject, quoted at great length, thoroughly justify Mr. Ransom's

summary:

Congress may, in its discretion, for the better regulation and control of inter-State commerce, take authority over intra-State rates and transactions of carriers doing an inter-State business, and may require such readjustment of intraState rates and regulations as the paramount interests of the National commerce may make

advisable, even though such intra-State rates and regulations have been determined and prescribed by State authority and have the full approval of the carriers concerned.

The authority conferred by the Constitution upon the Federal Government to regulate inter-State commerce may be used not only for the promotion and regulation of commerce, but for the promotion of the general material and moral welfare of the Nation. This principle has been affirmed by Mr. Hughes, as by the Court to which he belonged, in protecting the Nation from adulterated food and drugs, in prohibiting the white slave traffic, and in restricting child labor.

He is far, however, from desiring the merger of the States in the Nation. He says, "If there were centered in Washington a single source of authority from which proceeded all the governmental forces of the country, . . . I think we should swiftly demand and set up a different system. If we did not have States, we should speedily have to create them." But within their boundaries the power of the State is as complete as the power of the Federal Govern

ment in the Nation.

The contrast between his interpretation and that of the New York Court of Appeals of the police power of the State is interesting and instructive. The Court of Appeals, in a famous case dealing with the Workmen's Compensation Law, said: "Every man's right to life, liberty, and property is to be disposed of in accordance with those ancient and fundamental principles which were in existence when our Constitutions were adopted." Contrast with this the decision of the Supreme

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Court, in which Judge Hughes concurred, that the police power "may be put forth in aid of what is sanctioned by usage or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare." One decision makes the test of the power of the State the ancient principles in existence when our Constitutions were adopted; the other decision makes the test what the preponderant opinion regards as greatly and immediately necessary to the public welfare. Evidently in the judgment of Mr. Hughes the courts may be guided, but must not be governed, by the precedents of the past.

This fundamental principle determines his judgments in dealing with modern questions of right and wrong. He believes in liberty, but liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community." Therefore" freedom of contract is a qualified and not an absolute right. There is no absolute freedom to do as one wills or to contract as one chooses." Government, therefore, has a right to interfere with the traditional freedom of contract in order to do whatever is necessary to protect in our modern complicated civilization the real rights of the individual. Thus government may fix a labor day for women, children, and railway employees—perhaps for others also; may enact a "full crew law;" may enact a workmen's compensation law; may prohibit an employer from requiring an employee to sign an agreement not to belong to a trades union. In affirming this last conclusion Mr. Hughes, Mr. Holmes, and Mr. Day dissented from the majority of the Court.

This duty of the Government to protect the individual inspires another series of decisions. We do not think that any Judge has gone farther than Mr. Hughes in maintaining the right of government to modify or repeal franchises found operating to the injury of the public, or to regulate, restrain, or prevent monopolies, even when their defense is attempted under patent or copyright law.

Ex-President Eliot has pointed out the failure of democracy to avail itself of the advantage of experts and the importance of correcting this failure. The right of the Government to make use of experts, and for this purpose to employ administrative commissions and give large discretionary power to them, is sustained by Mr. Hughes, and this fact, coupled with his acts when Governor of

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New York State, warrants the opinion that he would, as President of the United States, favor an extension in the employment of this instrument of government. Indirectly and by implication, perhaps all the more significant for that reason, his attitude on the question of hyphenated citizenship is indicated by an opinion of the Court, which he did not write but in which he agreed, in which it is said: These requirements [of naturalization] plainly contemplated that the applicant, if admitted, should be a citizen in fact as well as in name—that he should assume and bear the obligations and duties of that status as well as enjoy its rights and privileges."

What Mr. Hughes thinks of the wisdom of the referendum, initiative, and recall does not appear; but he agrees with the unanimous opinion of the Supreme Court that nothing in the Constitution forbids the employment of these methods of political action by any State that desires to make use of them.

Judge Hughes's decisions when on the Supreme Court Bench indicate that he is a radical, but a conservative radical. By a radical we mean a root man, that is, a man who goes to the roots of things in reaching his conclusions; by a conservative we mean a man who believes in evolution, not in revolution. He is a modern man, facing the facts of modern life and attempting to adapt laws and policies to modern conditions; a progressive man, believing that the United States Constitution is a flexible instrument, like the bark which better protects the tree because it grows with the growth of the tree; and, above all, a human man, seeking to use all legal instruments and all public policies as instruments of justice, and to test them by their effect on the public welfare.

Those who think that progress is peril, and that the Nation is safe only as it adheres to the traditions of the fathers, must look upon the election of Mr. Hughes as a grave danger to be averted if possible. Those who agree with von Holst that "a constitution which resembles a Chinese shoe can suit only a nation which has sunk into Chinese inertia,” and who believe that the only way to protect the people and promote their welfare is to keep institutions and laws, political, educational, and religious, a living, growing organism, will hope for Mr. Hughes's election, and see in it both a safeguard from peril and a promise of true National prosperity.

There is nothing in this record of Justice

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in wars whose objects cannot be clear to them." Those sections of the people who have sworn to the revolutionary colors “would only make use of a war to promote their own revolutionary schemes." In fact, not only general indications, but the uniform testimony of well-informed correspondents, including that of our own Mr. Mason, all point to an unusual degree of enthusiasm in the common soldiers of Russia. Instinct sometimes takes the place of education, and the peasantry of Russia instinctively realize that in fighting against the militarism of Germany they are fighting for their own liberty.

The contrast between Bernhardi's prophecies and the facts of history makes very significant the closing sentence of his chapter entitled "The Character of Our Next War :" "But it is an evil day for her [Germany] if she relies on the semblance of power, or, miscalculating her enemies' strength, is content with half-measures, and looks to luck or chance for that which can only be attained by the exertion and development of all her powers." And it makes equally significant the title of one of his chapters, "World Power or Downfall." It does not look like World Power. It begins to look very much like Downfall.

ANOTHER WAY TO PREVENT STRIKES

In a country village Mr. G- runs an automobile bus from the station, carrying passengers to their homes. The fare is twentyfive cents. To buy his bus he took three thousand dollars, out of the savings bank. Out of the fares which he collects he must get at least four per cent interest on the three thousand dollars, enough money to keep his bus in repair, enough to constitute a fund with which to buy another bus when this one wears out, and enough to provide a livelihood for himself and his family. All that he gets over and above these combined sums is profit and can go back to the savings bank.

A great railway runs through this village. It is owned by sixty thousand stockholders. One or two hundred officers manage this railway, determining what trains shall be run and what charges shall be made for transporting freight and passengers. Another group of sixty thousand men, as conductors, engineers, baggage-masters, switchmen, and the like, run the railway. This railway must pay to

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its owners an interest on the money which they have spent in building the railway, must provide a fund for keeping the railway in repair and renewing its rolling stock from. time to time, and funds sufficient to give a comfortable livelihood to the officers and the operatives. All over and above the sum total of these funds is profit. Under the present system that profit goes to the owners of the road.

Under this system the owners naturally want the largest possible dividends and the operatives naturally want the largest possible wages. Arbitration, compulsory or voluntary, is simply a means for the settlement of controversies that arise between the owners and the operatives when those controversies become acute and cannot be settled by amicable negotiation. Mr. P. A. Sinsheimer, the financial expert of the Railroad Commission of California, in a letter to The Outlook, proposes a more radical method-one which would prevent the conflict of interests between the owners and the operatives-by fixing the rate of interest to be paid to the owners in dividends and the rate of compensation to be paid to the managers and operatives in wages, and then dividing the profits on some fair basis between the three-owners, managers, and operatives. The plan is thus briefly stated by him:

Provision for co-operation between the National Government and the inter-State railroads along some such lines as the present method of co-operation between municipalities and their street railway systems in Chicago and Kansas City, under which a proper return may be assured the carriers, the extra revenues to be divided between the Government, the carriers, and perhaps the employees.

From this paragraph we should strike out the word "perhaps." As a plan to prevent strikes by putting an end to the conflict of interests between owners and operatives, it would be essential that the employees should have a share in the profits when there are any. It is evident that if the operatives had a share in the profits of the railway they would have an interest in its prosperity, and would be naturally desirous to promote, on the one hand, every rational economy, and, on the other hand, every possible efficiency in the service of the public.

The advantages of such a plan are great, but we fear at the present time it must be regarded as a "counsel of perfection." The labor leaders would oppose it because it

would deprive them of their power and make their offices needless; the capitalists would oppose it because they would think it would reduce their profits; and the public would hesitate to adopt it because it is new, and conservatism always hesitates about initiating a new experiment. But if it were accepted by owners, managers, operatives, and the general public, and incorporated in the law of the land, it would have a great advantage over the present system, because it would put an end to the conflict of interests, and therefore to the labor wars which grow out of that conflict of interests; and it would have great advantages over State Socialism, because it would not be accompanied by the political evils which the public naturally fear from ownership and operation of the railways by the Government.

A judicial settlement of controversies between capitalists is much better than war; but a community of interests which prevents such controversies from arising is better than either.

SETH LOW

In the death of Mr. Seth Low New York City loses one whom the "Tribune " calls "New York's First Citizen." His career affords a fine illustration of the kind of service which can be rendered to this country by those who belong to what is called the leisure class. A man of wealth and culture, with honorary degrees not only from the

foremost American universities but also from the University of Edinburgh, he might easily have joined those who devote themselves to the refined self-indulgence of culture. Instead, he devoted both his money and his energies to indefatigable labors for the public welfare.

During his college days the Tweed Ring was in possession of New York City. It furnished a monstrous exhibition of a widespread corruption which made the government of the great cities of America cesspools of political iniquity. The young graduate perceived even then that municipal government furnished a vital problem to the American people. Over one-third of the population of the United States live in cities of over ten thousand inhabitants. If democratic government, that is, government both by the people and for the people, cannot be maintained in these influential centers, it is hopeless to expect that it can be maintained

throughout the country. Mr. Low was a pioneer in that movement, which has gone on with gathering strength, despite many disappointments and defeats, to redeem American cities from debasing misrule. At thirty-one years of age he was elected Mayor of Brooklyn on an Independent ticket. In his administration he introduced into the government of that city a reform of the Civil Service and applied to it the principle subsequently formulated by President Cleveland in the phrase, "A public office is a public trust." His service was recognized by his fellow-citizens in his re-election for a second term. The unfortunate tradition of America that no executive may hold office for more than two terms made impossible even raising the question of a continuous election.

Four years later he was elected to the presidency of his Alma Mater, Columbia College. The changes which had taken place, due to the phenomenal growth of New York City, had made the location of that college undesirable. Under his administration the very difficult task was accomplished of removing it to its present site on the western shore of Manhattan Island, overlooking the Hudson River. His generous contribution gave both example and inspiration to other donors. Land in apparent excess of its immediate needs was purchased, involv ing a considerable debt, but purchased at a price which would have made the transaction financially wise even as a speculation. Under his administration the Law School was reorganized and its methods brought into harmony. with modern thought; the College of Physicians and Surgeons became a part of Columbia; a School of Philosophy was established; and the Teachers College, a normal institute now possessing a National reputation, and Barnard College, which ranks with the foremost of American colleges for women, were added to what is now everywhere known as Columbia University.

This work of reorganization and reconstruction accomplished, Mr. Low resigned, and in 1901 was elected on a fusion ticket Mayor of New York City. If his administration of Greater New York was not as evidently a success as his previous administration of Brooklyn, it was because the conditions were of a sort that made such success almost impossible. He took a government honeycombed with fraud and did all that a man without autocratic powers and without magnetic personality could do to fulfill his