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CHARLES EVANS HUGHES they by tradition and by the letter df the

law. AS SELF-REVEALED

Mr. Hughes is clearly a Nationalist. He In 1910 Charles E. Hughes was selected holds, with Chief Justice Marshall, that the to be one of the nine Justices of the Supreme United States is a Nation and has all the Court of the United States to whom the

powers and prerogatives of a Nation. Durpeople have given power to determine with

ing his judicial tenure the question of the authority what is just. In that work he was power of the Nation has been especially inengaged till his resignation in June, 1916. Mr.

volved in dealing with the National railways, W. L. Ransom has made a careful examina

and his opinions on this subject, quoted at tion of Justice Hughes's decisions during this great length, thoroughly justify Mr. Ransom's period, his book, therefore, enables the lay

summary : reader to see what are the judgments of Mr. Congress may, in its discretion, for the better Hughes on many of the great questions of regulation and control of inter-State commerce, right and wrong now before the American take authority over intra-State rates and transpeople. This is a much more valuable record actions of carriers doing an inter-State business, of the opinions and character of the Presi– and may require such readjustment of intradential candidate than either the platform of

State rates and regulations as the parantount his party or his campaign speeches, for it is

interests of the National commerce may make unaffected by personal ambition or possible and regulations have been determined and pre.

advisable, even though such intra-State rates political prejudices.

scribed by State authority and have the full If any reader is inclined to say that the

approval of the carriers concerned. Justices of the Supreme Court of the United

The authority conferred by the Constitution States are appointed to determine, not what

upon the Federal Government to regulate is just, but what is law, we reply that Mr.

inter-State commerce may be used not only Hughes is of a different opinion. He re

for the promotion and regulation of comgards law as an instrument for the mainte

merce, but for the promotion of the general nance of justice, and, therefore, the spirit of

material and moral welfare of the Nation. the law as the standard by which its words

This principle has been affirmed by Mr. are to be interpreted. This is strikingly Hughes, as by the Court to which he illustrated by his dissenting opinion in the belonged, in protecting the Nation from famous case of Leo M. Frank, where the

adulterated food and drugs, in prohibiting question for the Court was whether Mr. Frank had been convicted by “due process labor.

the white slave traffic, and in restricting child of law.” The majority of the Court held

He is far, however, from desiring the that it was “ due” if it was legally regular ;

merger of the States in the Nation. He Mr. Hughes and Mr. Holmes held that it

says, “ If there were centered in Washington was not “ due” if it had been vitiated by

a single source of authority from which promob influence. This putting of practical

ceeded all the governmental forces of the justice above technical regularity appears to

country, . .. I think we should swiftly be a characteristic habit of mind with Mr.

demand and set up a different system. If Hughes.

we did not have States, we should speedily During his five years and eight months'

have to create them." But within their service in the Supreme Court Justice Hughes boundaries the power of the State is as comprepared one hundred and fifty opinions plete as the power of the Federal Governwhich were rendered as the opinions of the

ment in the Nation. Court. In only nine instances was there

The contrast between his interpretation dissent from his opinion, and in but three of

and that of the New York Court of Appeals those did more than one Justice dissent. Mr.

of the police power of the State is interesting Ransom correctly designates him as a " team- and instructive. The Court of Appeals, in a work Judge.” When he dissented from the

famous case dealing with the Workmen's majority, it was generally, if not always, Compensation Law, said: “ Everyman's because in his interpretation of the law right to life, liberty, and property is to be he was more progressive or more human

disposed of in accordance with those ancient than his associates and less governed than

and fundamental principles which were in ex!(harles E. Hughes. The Statesman as shown in the istence when our Constitutions were adopted.” Opinions of the Jurist. By William L. Ransom. E. P. Dutton & Co., New York. $1.5),

Contrast with this the decision of the Supreme

1916

CHARLES EVANS HUGHES

173

Court, in which Judge Hughes concurred, New York State, warrants the opinion that that the police power “may be put forth he would, as President of the United States, in aid of what is sanctioned by usage or held favor an extension in the employment of this by the prevailing morality or strong and pre- instrument of government. Indirectly and ponderant opinion to be greatly and immedi- by implication, perhaps all the more signifiately necessary to the public welfare.” One cant for that reason, his attitude on the quesdecision makes the test of the power of the tion of hyphenated citizenship is indicated by State the ancient principles in existence when an opinion of the Court, which he did not our Constitutions were adopted; the other write but in which he agreed, in which it is decision makes the test what the preponder- said : “ These requirements [of naturalization] ant opinion regards as greatly and immedi- plainly contemplated that the applicant, if adately necessary to the public welfare. Evi- mitted, should be a citizen in fact as well as dently in the judgment of Mr. Hughes the in name—that he should assume and bear the courts may be guided, but must not be gov- obligations and duties of that status as well as erned, by the precedents of the past.

enjoy its rights and privileges.” This fundamental principle determines his What Mr. Hughes thinks of the wisdom judgments in dealing with modern questions of the referendum, initiative, and recall does of right and wrong. He believes in liberty, not appear; but he agrees with the unanibut " liberty implies the absence of arbitrary mous opinion of the Supreme Court that restraint, not immunity from reasonable regu- nothing in the Constitution forbids the emlations and prohibitions imposed in the inter- ployment of these methods of political action ests of the community.” Therefore“ freedom by any State that desires to make use of them. of contract is a qualified and not an absolute right. There is no absolute freedom to do as Judge Hughes's decisions when on the one wills or to contract as one chooses." Supreme Court Bench indicate that he is a Government, therefore, has a right to inter- radical, but a conservative radical. By a fere with the traditional freedom of contract radical we mean a root man, that is, a man in order to do whatever is necessary to protect who goes to the roots of things in reaching in our modern complicated civilization the real his conclusions ; by a conservative we mean rights of the individual. Thus government a man who believes in evolution, not in revomay fix a labor day for women, children, and lution. He is a modern man, facing the facts railway employees-perhaps for others also ; of modern life and attempting to adapt laws may enact a “full crew law;" may enact a and policies to modern conditions ; a proworkmen's compensation law; may prohibit gressive man, believing that the United States an employer from requiring an employee Constitution is a flexible instrument, like the to sign an agreement not to belong to a bark which better protects the tree because trades union. In affirming this last conclu- it grows with the growth of the tree; and, sion Mr. Hughes, Mr. Holmes, and Mr. Day above all, a human man, seeking to use all dissented from the majority of the Court. legal instruments and all public policies as

This duty of the Government to protect the instruments of justice, and to test them by individual inspires another series of decisions. their effect on the public welfare. We do not think that any Judge has gone Those who think that progress is peril, and farther than Mr. Hughes in maintaining the that the Nation is safe only as it adheres to right of government to modify or repeal fran- the traditions of the fathers, must look upon chises found operating to the injury of the the election of Mr. Hughes as a grave danger public, or to regulate, restrain, or prevent to be averted if possible. Those who agree monopolies, even when their defense is at- with von Holst that "a constitution which tempted under patent or copyright law. resembles a Chinese shoe can suit only a

Ex-President Eliot has pointed out the nation which has sunk into Chinese inertia,” failure of demācracy to avail itself of the ad- and who believe that the only way to protect vantage of experts and the importance the people and promote their welfare is to correcting this failure. The right of the keep institutions and laws, political, educaGovernment to make use of experts, and for tional, and religious, a living, growing organthis purpose to employ administrative com- ism, will hope for Mr. Hughes's election, and missions and give large discretionary power see in it both a safeguard from peril and a to them, is sustained by Mr. Hughes, and this promise of true National prosperity. fact, coupled with his acts when Governor of There is nothing in this record of Justice Hughes's opinions to indicate directly his England's fleet, but thought that "England's judgment on the international questions now troops would only serve as reinforcements; before the country, because those questions they are too weak for an independent camdid not come before the Court during his paign. English interests also lie in a quite diftenure of office ; but it indicates a man who ferent field, and are not coincident with those believes in the duty of the Nation to do of France ;” and he thought that “it is very whatever may be necessary to protect the questionable whether the English army is rights and promote the welfare of the people ; capable of effectively acting on the offensive and it very directly indicates a man who in against Continental European troops.” In spirit and temper is in harmony with pro- fact, England's army of 180,000 men, fightgressive principles in dealing with domestic ing against great odds, helped materially to problems.

hold the German advance in check for a sufficient length of time to enable Joffre to

bring up the French forces, win the Battle of A MISTAKEN PROPHET

the Marne, and save Paris from the destrucIn the issue of The Outlook for Septem- tion which fell upon Louvain. And its presber 9, 1914, we gave editorially an account ent co-operation with the French forces on of General Bernhardi's volume entitled the western lines is proving a very effective “ Germany and the Next War.” This vol- offensive against the best of Germany's army. ume was published three years before (1911) General Bernhardi thought that a speedy for the purpose of stirring up in the German end of the war would be essential to England. people a war spirit in which General Bern- “ The centrifugal forces of her loosely comhardi thought they were lamentably lack- pacted world empire might be set in moveing; and it pointed out the objects to be ment, and the colonies might consult their gained and the methods to be pursued in own separate interests, should England have gaining them. As an interpretation of the her hands tied by a great war.

It is not spirit of the war party and its purposes this unlikely that revolutions might break out in volume was exceedingly useful. The author India and Egypt, if England's forces were contended that it was both the right and the long occupied with a European war." In duty of Germany to make war-her right fact, not only the colonies, but India also, because war was necessary to her expansion, are furnishing some excellent fighting maher duty because only by war could she fulfill terial for England in this war for the preserher mission, which was to give to the world vation of democracy against militarism. her own superior culture and maintain in the General Bernhardi appreciated" the tactical work that leadership which the possession of value of the French troops;" but said that "the that superior culture made it her duty to French army lacks the subordination under a maintain. In his attempt to interpret the single commander, the united spirit which spirit of other nations and to forecast their characterizes the German army, the tenacious probable action the author was not as suc- strength of the German race, and the esprit cessful as in his interpretation of the spirit de corps of the officers.”

de corps of the officers.” Contrast with this and probable action of the war party of estimate the Battle of the Marne, the heroic Germany. It is interesting to compare at defense of Verdun, and the pending offensive the present time his political prophecies in of the French army on the Somme. 1911 with political conditions in 1916.

He thought that “ England only wishes to General Bernhardi thought that if the war use France in order, with her help, to attain her between Germany and the three Allies - own special ends; but she will never impose France, England, and Russia-should be on herself sacrifices which are not absolutely much delayed “the states not originally necessary, for the private advantage of her taking part in the war might interfere in our ally.” The story of England's daily selffavor.” Bulgaria and Turkey have done so; sacrifice is written in letters which all the but their power has been far more than world can read. counterbalanced by the addition to the Allies He recognized the fact that “ Russia will of Italy, Japan, Servia, Belgium, Montenegro, certainly put huge armiez into the field Rumania, and Portugal; and at this writing against us," and that “ Russia, owing to her there is a great probability that Greece also vast extent, is . . . secure against subjugawill be added at an early day.

tion." But he was quite sure that " the inGeneral Bernhardi recognized the power of habitants will hardly ever show self-devotion

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ANOTHER WAY TO PREVENT STRIKES

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in wars whose objects cannot be clear to its owners an interest on the money which them.". Those sections of the people who they have spent in building the railway, must have sworn to the revolutionary colors “ would provide a fund for keeping the railway in only make use of a war to promote their own repair and renewing its rolling stock from revolutionary schemes.” In fact, not only time to time, and funds sufficient to give a general indications, but the uniform testimony comfortable livelihood to the officers and the of well-informed correspondents, including operatives. All over and above the sum total that of our own Mr. Mason, all point to an of these funds is profit. Under the present unusual degree of enthusiasm in the common system that profit goes to the owners of the soldiers of Russia. Instinct sometimes takes road. the place of education, and the peasantry of Under this system the owners naturally Russia instinctively realize that in fighting want the largest possible dividends and the against the militarism of Germany they are operatives naturally want the largest possible fighting for their own liberty.

wages. Arbitration, compulsory or volunThe contrast between Bernhardi's prophe- tary, is simply a means for the settlement of cies and the facts of history makes very sig- controversies that arise between the owners nificant the closing sentence of his chapter and the operatives when those controversies entitled “ The Character of Our Next War :" become acute and cannot be settled by amica“ But it is an evil day for her (Germany) if she ble negotiation. Mr. P. A. Sinsheimer, the relies on the semblance of power, or, miscal- financial expert of the Railroad Commission culating her enemies' strength, is content with of California, in a letter to The Outlook, prohalf-measures, and looks to luck or chance poses a more radical method-one which for that which can only be attained by the would prevent the conflict of interests beexertion and development of all her powers." tween the owners and the operatives—by And it makes equally significant the title of fixing the rate of interest to be paid to the one of his chapters, “ World Power or Down- owners in dividends and the rate of comfall.” It does not look like World Power. pensation to be paid to the managers and It begins to look very much like Downfall. operatives in wages, and then dividing the

profits on some fair basis between the

three-owners, managers, and operatives. ANOTHER WAY TO PREVENT The plan is thus briefly stated by him : STRIKES

Provision for co-operation between the Na

tional Government and the inter-State railIn a country village Mr. G-runs an

roads along some such lines as the present automobile bus from the station, carrying pas- method of co-operation between municipalities sengers to their homes. The fare is twenty- and their street railway systems in Chicago and five cents. To buy his bus he took three Kansas City, under which a proper return may thousand dollars, out of the savings bank.

be assured the carriers, the extra revenues to Out of the fares which he collects he must

be divided between the Government, the car

riers, and perhaps the employees. get at least four per cent interest on the three thousand dollars, enough money to From this paragraph we should strike out keep his bus in repair, enough to constitute the word “perhaps." As a plan to prevent a fund with which to buy another bus when strikes by putting an end to the conflict this one wears out, and enough to provide a of interests between owners and operatives, it livelihood for himself and his family. All would be essential that the employees should that he gets over and above these combined have a share in the profits when there are any. sums is profit and can go back to the savings It is evident that if the operatives had a bank.

share in the profits of the railway they would A great railway runs through this village. have an interest in its prosperity, and would It is owned by sixty thousand stockholders. be naturally desirous to promote, on the one One or two hundred officers manage this rail- hand, every rational economy, and, on the way, determining what trains shall be run and other hand, every possible efficiency in the what charges shall be made for transporting service of the public. freight and passengers. Another group of The advantages of such a plan are great, sixty thousand men, as conductors, engineers, but we fear at the present time it must be baggage-masters, switchmen, and the like, regarded as a "counsel of perfection." The run the railway. This railway must pay to labor leaders would oppose it because it would deprive them of their power and make throughout the country. Mr. Low was a their offices needless ; the capitalists would pioneer in that movement, which has gone on oppose it because they would think it would with gathering strength, despite many disapreduce their profits; and the public would pointments and defeats, to redeem American hesitate to adopt it because it is new, and con- cities from debasing misrule. At thirty-one servatism always hesitates about initiating a years of age he was elected Mayor of Brooknew experiment. But if it were accepted by lyn on an Independent ticket. In his adminowners, managers, operatives, and the gen- istration he introduced into the government eral public, and incorporated in the law of of that city a reform of the Civil Service and the land, it would have a great advantage applied to it the principle subsequently formuover the present system, because it would lated by President Cleveland in the phrase, put an end to the conflict of interests, and A public office is a public trust." His therefore to the labor wars which grow out service was recognized by his fellow-citizens of that conflict of interests ; and it would have in his re-election for a second term. The great advantages over State Socialism, be- unfortunate tradition of America that no cause it would not be accompanied by the executive may hold office for more than two political evils which the public naturally fear terms made impossible even raising the quesfrom ownership and operation of the rail- tion of a continuous election. ways by the Government.

Four years later he was elected to the A judicial settlement of controversies be- presidency of his Alma Mater, Columbia tween capitalists is much better than war; College. The changes which had taken but a community of interests which prevents place, due to the phenomenal growth of New such controversies from arising is better than York City, had made the location of that either.

college undesirable. Under his administra

tion the very difficult task was accomplished SETH LOW

of removing it to its present site on the

western shore of Manhattan Island, overlookIn the death of Mr. Seth Low New ing the Hudson River. His generous conYork City loses one whom the “ Tribune" tribution gave both example and inspiration calls “ New York's First Citizen.” His to other donors. Land in apparent excess career affords a fine illustration of the kind of its immediate needs was purchased, involva of service which can be rendered to this ing a considerable debt, but purchased at a country by those who belong to what is called price which would have made the transaction the leisure class. A man of wealth and cul- financially wise even as a speculation. Under ture, with honorary degrees not only from his administration the Law School was reorganthe foremost American universities but ized and its methods brought into harmony also from the University of Edinburgh, he with modern thought; the College of Phymight easily have joined those who devote sicians and Surgeons became a part of themselves to the refined self-indulgence of Columbia ; a School of Philosophy was culture. Instead, he devoted both his money established; and the Teachers College, a and his energies to indefatigable labors for normal institute now possessing a National the public welfare.

reputation, and Barnard College, which ranks During his college days the Tweed Ring with the foremost of American colleges for was in possession of New York City. It women, were added to what is now everyfurnished a monstrous exhibition of a wide- where known as Columbia University. spread corruption which made the govern- This work of reorganization and reconment of the great cities of America cesspools struction accomplished, Mr. Low resigned, of political iniquity. The young graduate

The young graduate and in 1901 was elected on a fusion ticket perceived even then that municipal govern- Mayor of New York City. If his adminisment furnished a vital problem to the Ameri- tration of Greater New York was not as can people. Over one-third of the popula- evidently a success as his previous administion of the United States live in cities of tration of Brooklyn, it was because the conover ten thousand inhabitants. If democratic ditions were of a sort that made such success government, that is, government both by the almost impossible. He took a government people and for the people, cannot be main- honeycombed with fraud and did all that a tained in these influential centers, it is hope. man without autocratic powers and without less to expect that it can be maintained magnetic personality could do to fulfill his

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