CHAPTER I

INTRODUCTION

CHARLES EVANS HUGHES was appointed to the Supreme Court by President Taft on April 25, 1910. He was then nearing the close of his second term as Governor of New York, having been first elected in 1906. Before becoming Governor, he had been a practising lawyer in New York City since 1884, with the exception of the years 1891 to 1893, when he was a professor in the Cornell University College of Law at Ithaca. His professional eminence had received public recognition through his service in 1905 and 1906 as counsel to the special investigating bodies of the New York Legislature, known as the Stevens Gas and Electric Lighting Committee and the Armstrong Life Insurance Investigation Committee. In 1906 he had been designated as one of the special counsel of the United States Department of Justice to initiate steps for the prosecution of the socalled coal-owning and coal-carrying railroads for violations of the Anti-Trust and Anti-Rebate laws. As Governor of New York, he had taken a large part in the draughtsmanship, as well as advocacy, of constructive statutes, such

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as those creating the New York Public Service Commissions and those formulating more adequate standards for the conduct of the affairs of life insurance companies. He had also been responsible for the creation and personnel of the so-called Wainwright Commission, whose monumental inquiry into the social aspects of occupational injury and disease was the starting-point of the "social-justice" campaign in many States. Governor Hughes worked in the closest co-operation with the Wainwright Commission throughout its exhaustive labours, and gave executive approval to the Workmen's Compensation Act of 1910, recommended by the Commission as a frankly experimental beginning of progress in that domain of awakened social conscience.

The Senate of the United States, on May 2, 1910, confirmed the appointment of Mr. Hughes, but the October Term of 1909 was then nearing its close and Mr. Hughes was in the midst of important tasks as Governor of New York. With the approval of the President, he did not resign as Governor or take his seat as a member of the Supreme Court, until October 10th. The vacancy thus filled was that created by the death of Justice David J. Brewer of Kansas, who had died on March 28, 1910. An interesting commentary upon the change which a century has brought in the prestige and rank of the Supreme Court is afforded by the fact that

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its first Chief Justice resigned to become Governor of New York, after having served as Minister to England for a year without withdrawal from his judicial office, and that Oliver Ellsworth, whom President Washington subsequently appointed as Chief Justice, spent two years abroad as Commissioner to France, likewise without resigning the Chief Justiceship. As Willoughby says, "a position on its bench was then considered not as important as many positions now ranking far below it. Such position was not even considered incompatible with the holding of another office at the same time." The founders of the republic felt that, in common with any other citizen, a member of the Supreme Court might be called to any other post of public service as the public need arose, with or without retirement from his judicial place, as the circumstances seemed to warrant. This view gave no sanction, however, to manifest political bias on the part of a member of the Nation's highest Court, as was shown by the failure of the Senate to confirm Washington's appointment of Rutledge of North Carolina as successor of John Jay in the Chief Justiceship. After Rutledge had received information of his appointment, he delivered a speech which disclosed an intense partisanship, and this was forthwith recognised as disquali

"The Supreme Court of the U. S.," by Westel W. Willoughby. (Johns Hopkins University Studies: 1890.)

fying him for the place for which he had been named.

At the time Mr. Hughes was translated from executive to judicial responsibility, he was 48 years of age, and thus by nine years the youngest member of the Court. Chief Justice Fuller of Illinois had died on July 4, 1910, and Justice John Maynard Harlan of Kentucky presided over the Court from the opening of the October Term until December 19th, when Justice Edward Douglass White of Louisiana took the oath as Chief Justice, by appointment of President Taft. At the time Mr. Hughes entered upon his duties, the Court was made up of Associate Justices Harlan, White, Joseph McKenna of California, Oliver Wendell Holmes of Massachusetts, William R. Day of Ohio, William Henry Moody of Massachusetts, Horace Harmon Lurton of Tennessee. Justice Moody, however, had suffered for some months from a disabling illness, and on November 20th accepted retirement under a special Act of Congress. The virtual re-constituting of the personnel of the Court during the year 1910 was completed by the appointment, on December 12th, of Justice White to be Chief Justice, of Joseph Rucker Lamar of Georgia as successor of Justice Moody, and Willis Van Devanter of Wyoming as successor of Mr. White as Associate Justice. The Court thus had again its full quota of members, and was composed of Chief Justice White and Associate Justices Harlan,

McKenna, Holmes, Day, Lurton, Hughes, Van Devanter, and Lamar. This rugged and wellbalanced working organisation was unbroken until the death of Justice Harlan, on October 14, 1911. On March 18, 1912, Mahlon Pitney, Chancellor of New Jersey, took his seat as Justice Harlan's successor. On July 12, 1914, Justice Lurton died during vacation, and at the opening of the October Term of that year, Attorney-General James Clark McReynolds became a member of the Court, by appointment of President Wilson. On January 2, 1916, Justice Lamar died. Louis Dembitz Brandeis of Boston took seat as his successor, immediately before Justice Hughes tendered his resignation on the tenth of June.

The first reported opinion written by Justice Hughes was that in the case of Kerfoot against the Farmers' and Merchants' Bank, reported in the 218th volume of the United States Reports, at page 281. This case was argued before the Court on October 25, 1910, fifteen days after he went on the bench; the opinion prepared by Justice Hughes was handed down on November 7th, less than two weeks later. His first reported dissent came in the case of Thompson against Thompson,1 on December 12th of that year. In this case Justices Harlan, Holmes and Hughes found themselves unable to accept the majority opinion that a wife could not main1218 U. S. Reports, page 611.