... in law we are dealing almost wholly with considerations of social advantage which very rarely permit of quantitative determination.

The broad bearings of the proper interpretation and application of the "Bills of Rights" were elaborated upon by Justice Hughes before the New York State Bar Association last January:

Recurring to the work of the courts, it is evident that legislative activity is constantly raising questions involving not simply the constitutional adjustment of national and State power, but also the application of the historic clauses of our Bills of Rights securing life, liberty and property. Here, also, our system is under an increased strain as efforts to impose new obligations are brought to the constitutional test. In view of the impossibility of comprehensive definition of the content of the great guaranties of due process and equal protection, and of the necessity for what Mr. Justice Miller called the "gradual process of judicial inclusion and exclusion, as the cases presented for decision require," there is peculiar danger of defective generalisation in a critical estimate of results. For a fair view of judicial work in this field, it must be judged in its entirety and without losing sight of the broad range of legislative discretion which is every day recognised despite constant efforts to induce judicial decision upon matters which are essentially mere

questions of legislative expediency and over which the courts have no constitutional authority. Even with respect to procedure, which is of the essence of due process, it has repeatedly been held that there was no intention by the adoption of the Fourteenth Amendment to confine State practice to archaic forms. For, as Mr. Justice Moody said, in Twining v. New Jersey, if that were so, "the procedure of the first half of the seventeenth century would be fastened upon the American jurisprudence like a strait-jacket, only to be unloosed by constitutional amendment," and that, he continued, quoting from Mr. Justice Matthews in Hurtado v. California, would be "to deny every quality of the law but its age, and to render it incapable of progress or improvement." Thus it has been found, for example, that there was nothing in the guaranty of due process of law contained in the Fourteenth Amendment which required a State to proceed by indictment by a grand jury (instead of by information) or by trial by a petit jury of twelve persons in prosecutions for infamous crimes, or from dispensing with the exemption from compulsory self-incrimination. And in the operation of this amendment according to our established constitutional doctrine as a restriction upon the enactment of substantive legislation, it is manifest that the prohibition was not intended to override legislative action by the views of judges as to its wisdom. The amendment was the affirmation of individual rights deemed to be fundamental. It was incorporated in the Constitution with full knowledge of the judicial duty to apply the su

preme law in the decision of controversies. What was thus sought was not a privilege to deny the legislative authority to enact reasonable measures for the promotion of the safety, health, morals and welfare of the people, not to make improvement or rational experimentation impossible, but to preserve and enforce the primary and fundamental conceptions of justice which demand proper notice and opportunity to be heard before a competent tribunal in advance of condemnation, immunity from the confiscation of property, and, with respect to every department of government, freedom from the exercise of purely arbitrary power. The perpetuity of this judicial function characteristic of our system, in my judgment, lies with the courts themselves rather than with their critics. With the alternative of legislative power, uncontrolled no matter how indulged, the people have preferred the interposition of the judicial scrutiny in order to conserve what have been deemed to be the essentials of liberty. It is not a function likely to be disturbed so long as judges in the discharge of their delicate and difficult duty exhibit a profound knowledge and accurate appreciation of the facts of commercial and industrial activity, and by their intelligence and fidelity in the application of the Constitution according to its true intent commend its guaranties to the judgment of a fair-minded people jealous alike of public rights and in dividual opportunities.

CHAPTER IV

THE SAFEGUARDS AGAINST ADULTERATION AND MIS-BRANDING OF FOODS AND DRUGS

ONE of the notable public services performed by Mr. Hughes as a Justice of the Supreme Court was in connection with the Food and Drugs Act of 1906 and similar statutes, State and Federal, enacted to aid the public in protecting itself from "notorious abuses" in connection with the impurity of foods and drugs and the falsity of representations made as to their quality, constituents, and curative properties. To the interpretation and application of these enactments and the analysis of the intricate trade conditions on which their application often hinges, he brought a wealth of administrative experience, a mind accustomed to the exact facts of physical science and commercial life, and a broad understanding of the conditions with which the community was trying to grapple, in this field so largely new to administrative law.

The first dissenting opinion 1 which he wrote as a member of the Supreme Court dealt with 1U. 8. vs. Johnson (221 U. 8. Reports, page 488).