the fact that the university and diplomatic positions which he has held may carry weight with many readers and lead them to suppose him an authority on our constitutional system. Those familiar with the work of Professor Burgess will easily discover that Dr. Hill is guilty of an inverted form of the failure to distinguish the state from the government. Professor Burgess has warned us against the assumption that the omnipotence of the state is any warrant for vesting omnipotence in the government. Dr. Hill leads the unwary reader to assume that because the American constitutional system sets limits to the power of the government, it therefore sets limits to the constitution-making authority which lies behind the government. This error is induced by Dr. Hill's use of ambiguous terms. He uses " right" without making clear whether he means legal right or moral right. He speaks of limitations on the power of popular majorities in such a way as to make no distinction between the action of such majorities in the task of legislation and in that of constitutional amendment.

Whatever may be true in other countries and, therefore, taught as true in our country, there is one country in the world where, until the present at least, the individual possesses guarantees which no power-not even that of popular majorities—can take away. And this is not a theory or an inference; it is the law [page 128].

Dr. Hill is aware that he is not giving a correct historical picture. On this point he says that "since the historic State was originally a mere embodiment of force, it is not in the history of the State, but in the history of thought about the State, that we must seek the evidence that there are inherent rights" (page 124). But there is no similar disclaimer as to the legal aspect of his picture. He begins chapter iv by saying: "If, from the point of view of jurisprudence, there exists in human society no unlimited right of legislation..." (page 135). and the "if" seems to be an "if" of recapitulation, not of doubt. In an earlier chapter he says:

We are here, of course, speaking only in the name of jurisprudence, which deals exclusively with rights and obligations; and superiority of force is not at all in question. All the power in the world cannot make wrong right. To say that the State may arbitrarily issue commandments, even at the behest of the people, and enforce them, regardless of individual rights, because it has the power to do so, is to abandon entirely the ground of juridical discussion, and pass without logical warrant from the domain of right to the domain of might [pages 117-118].

There is evidence scattered throughout Dr. Hill's book which indicates that he may not mean what he says, that he may mean only that there are constitutional limitations on the power of legislatures and moral limitations on the power of those who frame constitutions. There

are passages in which he seems to realize that he is talking about something ideal rather than something actual. But he repeatedly confuses the two and in many places warrants the inference that under our constitutional system law and morals are one.

Authority, in any sense which a jurist can recognize, is not a quantity, it is a quality. It proceeds from a discrimination between what is right and what is wrong. . . . Authority, therefore, has its true source in the nature of intelligence, which discriminates between that which "ought" and that which ought not to be done [pages 78-79].

If these thoughts were put forth merely as precepts for legislators, they might not be wholly devoid of merit. But their purport is not thus restricted. They may easily be taken by the multitude as the basis of an ethical sanction for the violation of a law which is deemed immoral. The free-trader who by false entry evades his customs duties may have a sense of exaltation when he realizes that he has substituted obedience to morality for obedience to mere force. The enemies of our public school system who base their opposition on conceptions of morality and the truths of revealed religion may welcome Dr. Hill to their fellowship. By all who mix their morality with their discontent, capitalist and socialist alike, Dr. Hill may be hailed as a spiritual successor to Calhoun, the messiah to the individual that the Great Nullifier was to South Carolina. But, as an apostle of disobedience and disintegration, Dr. Hill must at least be credited with the merits of his defects. Calhoun's doctrine of the concurrent majority was the more dangerous because it was close-knit and clear. Dr. Hill's thesis of the subordination of legality to morality is fortunately so compounded of vagueness and contradiction that its practical menace to our national unity is not greatly to be feared.

That Dr. Hill suspects to what evils his doctrine might conduce may perhaps be inferred from his search for some impersonal criterion for distinguishing right from wrong. This is found in the "immanence " within man "of that which is not himself, but to which he constantly makes appeal to satisfy his judgments and opinions" (page 83), an "intuition" in which there is no element of will, or interest, or sensibility . . . no element of personal determination," whose "whole purport is that something is seen to be true" (page 139). This

something thus seen to be true is "that in any organized community of men there must be mutuality of obligation" (page 139). Mutuality of obligation is said to be the source from which all individual rights are derived, the legitimate source of the sovereignty of the state (page 135).

With mutuality of obligation as a divining rod, the author then discovers that the right to life, though inherent, may be forfeited; that the right to liberty may be limited, so that the liberty of one shall not interfere with the equal liberty of others. There must be no suppression of productive powers, nor enforced surrender of the results of their exercise. The distribution of wealth must be determined by free contract between the joint producers. To this end, monopoly, both of capital and of centrally-controlled labor, must be restrained. The totality of wealth does not rightfully belong to society, but to those who by their industry, enterprise and skill have produced it, or by their abstinence from consumption have kept it in existence. These are the somethings seen by Dr. Hill to be true, through an intuition in which there is no element of will or interest or sensibility, through the immanence within him of that which is not himself.

THOMAS REED POWELL.

Charles E. Hughes: The Statesman as shown in the Opinions of the Jurist. By WILLIAM L. RANSOM. New York, E. P. Dutton and Company, 1916.-xxiii, 353 pp.

The notion that judges in deciding cases are mere automatons pulling the lever that starts a legal principle into faultless automatic action is rapidly waning. Too many cases are decided by a divided court to let us believe that the personal viewpoint of the judges is no factor in their decisions. Though there are still those who say that the bench should be recruited from men without opinions of their own on public questions, in most instances it will be found that the preachers of this doctrine find their ideal man of no opinions in some one who does not differ from themselves. The judge on the bench is necessarily a human being in the concrete, and as such differs from other human beings in habits of thought and in general outlook. It follows, then, that the work of individual judges presents an important field for critical study. In writing of the work of Mr. Hughes as associate justice of the Supreme Court, Judge Ransom disclaims any purpose "to establish or disprove the qualifications of Mr. Hughes for the presidency" (page xvi) and tells us that "no opinion written or participated in by Mr.

Hughes . . . should now [July 20, 1916] be looked upon by any one as reason for the giving or withholding of support in the political arena" (page xv). Yet he holds also that a man's views of constitutional power are an index of his statesmanship and that the electorate has "no reason for excluding Mr. Hughes's memorable opinions from its own available sources of information as to the manner of man he is and the kind of a president he would be likely to be" (page xvi). The author's disclaimer wins less ready acceptance than his opinion that what a man says and does on the bench is an index of the quality of his logic and his vision and thus of his fitness for any public service.

The author's estimate of Mr. Hughes as judge is that "he displayed a broad and sympathetic knowledge of human affairs" and that “ that knowledge was his guidance, rather than any preconceptions of social, economic or political theory. . . . With hardly an exception, his opinions reveal a man who is looking at actualities and is facing forward" (page 1). He adds, however, that the work of Mr. Hughes "does not stand out in any way from the trend of policy and decision of the court as a whole" (page 13). He finds that Mr. Hughes dissented in only thirty cases during his five years and eight months of service, and that in only two of these cases was he alone in dissent. In the 150 decisions in which Mr. Hughes wrote the opinion, the court was unanimous in all but nine. We are not told to what extent there

was difference of opinion in the cases in which Mr. Hughes concurred but did not write the opinion. But if Mr. Hughes deserves the praise which Judge Ransom gives him, it is not less to his credit that his colleagues were usually equal in merit.

Nevertheless, the distinctive qualities of Mr. Hughes can best be judged from his attitude in the cases where there was difference of opinion among the members of the court. Of such cases the most important relate to the subject of peonage, the interpretation and application of the anti-trust act, the interpretation of franchise grants and of the conception of freedom of contract. In Coppage v. Kansas, Mr. Hughes was with Mr. Justice Holmes and Mr. Justice Day in opposing the eighteenth-century doctrinaire view of liberty which permeated the majority opinion of Mr. Justice Pitney. His dissent in this case gives just cause for Judge Ransom's laudatory characterization of him. He saw that the liberty of every individual workingman by individual action to make a free bargain with his employer is under modern conditions an empty sham and that a statute which promotes collective bargaining tends to create a parity of actual freedom of bargaining power

between buyers and sellers of personal service. In the argument on the constitutionality of the Oregon mininum-wage law, when the counsel against the state insisted that the regulation of hours of labor furnished no precedent for the regulation of wages because the amount of wages received had no relation to health or morals, Mr. Hughes interjected the pregnant question : "But suppose it has; suppose that this court finds that these evils are in consequence of wages paid in employment?" In Bailey v. Alabama, Mr. Hughes in the majority opinion brushed aside the theoretical separability of different statutes of Alabama and saw that their combined effect in actual operation was to place upon ignorant laborers the alternative of serving masters for a fixed term or of going to jail. In the Frank case, and other decisions on criminal and civil procedure, and in various cases involving an interpretation of statutes, Mr. Hughes also looked through form to substance. He shows himself neither a doctrinaire conservative nor a doctrinaire radical.

Whenever Mr. Hughes differed from his colleagues, he seems to the reviewer to have been their superior in that quality which we sometimes call horse-sense. He looked through phrases to facts. He formed judgments, not by the glaring light of some dogma couched in absolute terms, which blinds the eyes to some other dogma which would equally well support a contrary decision, but he analyzed and weighed competing considerations in their relation to the actual present-day conditions of life. His opinions will not become classics, like those of Holmes. They lack Holmes's imagination, compactness and charm of style. But so do most judicial opinions. Mr. Hughes seems less conscious of his intellectual processes and his legal philosophy than does Mr. Justice Holmes. But his judgments, though reached by more lumbering processes of thought and conveyed with less felicity of expression than those of his more brilliant colleague, are entitled to equal commendation for their practical wisdom.

The reader of Judge Ransom's book will be apt to give Mr. Hughes credit for much that is in reality the joint product of himself and his colleagues. But the author has warned us against this in his preface. He has not warned us, however, that perhaps his own sympathetic understanding of the legal philosophy of Holmes and of Pound has led him to attribute to Mr. Hughes a conscious appreciation of the spirit. of the really constructive jurist which is more characteristic of the biographer than of his subject. This spirit animates all of Judge Ransom's writing. He quotes Von Holst to the effect that "the real essence of the Constitution, as it takes concrete shape in legislation, must grow