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later Associate Justice. The Chief Justice and Mr. Justice McKenna are the only Roman Catholics on the bench.

Enter the next in order of appointment, Mr. Justice Holmes, a Republican, of Massachusetts. He was appointed in 1902 by President Roosevelt. The Holmes face is winsome, whether that of the Autocrat of the Breakfast Table or that of his son, the present Associate Justice. The Holmes mind is notable too, whether that of father or son. "Justice Holmes can wear any one out, such is his mental pace when he gets going," said a critic to me to-day. Certain it is that his mind is one of the most remarkable on the bench, a fact specially appreciated by the Chief Justice, between whom and Justice Holmes a strong friendship exists. It is a case of "extremes meet," one man being from the far South and with a somewhat Southern temperament, while the other man is a typical Yankee from the far North. Indeed, Justice Holmes is a capital example of Massachusetts culture and patriotism. He is a Harvard man of the class of 1861. The same year he was commissioned first lieutenant of the Twentieth Massachusetts Volunteer Infantry. Ball's Bluff he was shot through the breast, and at Antietam shot through the neck. He rose through the army grades, and when the conflict between North and South was over went through the Harvard Law School, his course having been interrupted by the war. After years of law practice in Boston he was made a member of the Massachusetts Supreme Court, and finally Chief Justice of that Court. Despite his gray hair and mustache, his still youthful countenance (like his father's at the same age) and his alert manner give little evidence of his age-sixty-nine years.


Enter the next Judge in order of appointment, William Rufus Day, of Ohio, appointed in 1903 by President Roosevelt. Justice Day seems all brain-a brain which was applied with historic result when he was chairman of the Commission which negotiated the treaty of peace with Spain. Judge Day is sixty-one years old, and comes from Canton, Ohio, President McKinley's home. He was a great friend of McKinley, who made him his Assistant Secretary of State, later Secre

tary of State, and still later appointed him Circuit Judge.

Enter the next Judge in order of appointment, and now we jump from 1903 to 1909. The Judge is Horace Harmon Lurton, of Tennessee, a Democrat, appointed by President Taft to succeed Justice Peckham. Judge Lurton is sixty-six years old. Despite his years, he seems as pertinacious in asking questions of counsel from the bench as if he were a very young man, and his nasal Yankee voice has in it little of the soft Southern twang one might expect. He was educated at Cumberland University, began practicing at Clarksville, Tennessee, and rose through the judicial grades to be Chief Justice of his State. President Cleveland appointed him Circuit Judge, and, as we have seen in the case of the Chief Justice, the fact that a man was a Democrat proved no bar to his judicial preferment when President Taft became convinced that, beyond any other, this man was fitted for the place. As one looks at Mr. Justice Lurton and his nextdoor neighbor but one, Mr. Justice Harlan, the story comes to mind of how these two men were once mortal enemies. It was half a century ago. Harlan and Lurton were on opposite sides in the Civil War. Harlan was Colonel of the Tenth Kentucky Infantry (Unionist) and Lurton was a private in the Third Kentucky Cavalry (Confederate). At Cumberland River Colonel Harlan tried to train a cannon ball on Lurton and company, but the Confederates won. At Buffington's Island, however, Trooper Lurton was taken prisoner and transferred to Johnson's Island in Lake Erie, "the best prison in the North," he says. The echoes of the Civil War are getting fainter, but the bringing together of two such men on the same bench revives a memory.

Enter the next Judge in order of appointment, Charles Evans Hughes, of New York, a Republican, appointed last summer by President Taft to succeed Justice Brewer. Mr. Hughes is fortyeight years old. He is the only Judge who wears a full beard, and this, together with a very virile manner and voice, distinguishes him somewhat from most men. They used to say of one of the Cardinals that underneath his vestments he would

sometimes "kick out," as he used to during his years as a soldier. One has a little of that feeling as one regards the vigorous prosecutor of the insurance companies and the Progressive Governor of New York, now in judicial robes and judicial dignity. This has been emphasized within the past few days by Mr. Justice Hughes's opinion in the Alonzo Bailey case, an opinion likely to become historic. In any event, it brilliantly marks the entrance of a man who had shown himself a great administrator into a new field of activity, where he will doubtless show himself a great judge.

Enter the next Judge in order of appointment, Willis Van Devanter, of Wyoming, a Republican, appointed last autumn by President Taft to succeed Justice Moody. Mr. Van Devanter is fifty-one years old, and is a very human-looking document indeed. He was born in Indiana, and was educated at De Pauw University and at the Cincinnati Law School. After some years of practice in Indiana he removed to Cheyenne, Wyoming. He rose through various grades to be Chief Justice of the Supreme Court of his State. Six years ago President Roosevelt appointed him Circuit Judge. His present appointment is particularly interesting in view of the Standard Oil Case, because in the Circuit Court he had already had part in that case. The question arose whether he could take part in it on the Supreme Bench. This, however, would not differ in its essential nature from what occurred in the Nebraska Maximum Freight Rate Case, when Justice Brewer, of the Supreme Court, sat as Circuit Judge; his opinion declaring the Nebraska law unconstitutional was afterward sustained by the Supreme Court in a decision in which he shared.

Enter the next and final Judge in order of appointment, Joseph Rucker Lamar, a Democrat, but, despite that, appointed by a Republican President to succeed to the place left vacant by the promotion of Justice White. Mr. Justice Lamar is fiftythree years old. Of all the Judges, he seems the best worth looking at. Like the other Southern judges, Chief Justice White and especially Mr. Justice Lurton, so the latest addition to the Bench interrupts counsel once in a while. Mr. Jus

tice Lamar's voice is singularly resonant, full-toned, and bell-like in quality. He was born in Georgia and educated at the University of Georgia. He practiced law at Augusta, and for a short time was a member of the State Legislature. To his new position he brings a distinguished record of service on the Supreme Court of Georgia.

In connection with the mention of questions put by members of the Supreme Bench to counsel, it may be stated that such colloquy is of far more frequent occurrence than is generally supposed. While it has been particularly reported in the Tobacco and Standard Oil Cases, the Court's policy has been to establish as direct discourse as possible between Bench and Bar. The new Court, however, is apparently emphasizing colloquy more than before; indeed, the conduct of the Tobacco and Standard Oil Cases, as I heard them, often seemed more like a confidential conversation than like the dry presentation of technical points. Certainly, to a layman, the colloquy part of the proceedings was its most interesting feature. It explained and made human certain points which would not have been so explained save by the very direct and almost personal discourse between the Justices and the lawyers employed in the two cases.

As each Judge is appointed, he takes his seat to the extreme right or to the extreme left. In the case of Justices Van Devanter and Lamar, who were appointed together, as Mr. Van Devanter's name came first, he took a seat at the extreme right, where, of course, he found himself next to Mr. Justice Lurton; while Judge Lamar took his seat on the extreme left, where, of course, he found himself next to Mr. Justice Hughes. Thus, though Mr. Hughes has been sitting on the Supreme Bench only two months, he now seems like an old appointee.

The assured tenure of office and the Supreme Court's authority in determining what is law, both greater than in England, have always attracted eminent men to accept membership in the Court. Yet it is, nevertheless, evidence of American patriotism when men of the caliber of our Supreme Court Justices are willing to abandon active work as advocates-work bringing them many times the

financial returns they now receive-and take their places on the Federal Bench. Of course one may say that no greater honor can come to a man than to sit on that Bench, and this is true. At the same time it is a pity that our Government should evince so little appreciation of the financial sacrifice involved as to pay the Chief Justice of the United States $13,000 a year, less than is received by a Justice of the Supreme Court of New York City, while the head of the British Bench receives no less than fifty thousand dollars. The Moon Bill, now pending in the House of Representatives, does, it is true, provide for a more adequate recompense, raising the Chief Justice's salary from $13,000 to $18,000, and the Associate Justices' from $12,500 to $17,500. Even so, this, it will be admitted, is low compensation for men competent to meet the responsibilities of the Supreme Bench.

Moreover, our Government is not making the Judges comfortable enough. Quite aside from the light and air of the main chamber, the anterooms of the Supreme Court are ridiculously few in number and small in size. Some day, of course, it is the intention to have a properly equipped Supreme Court building north of the Capitol, a pendant to the Library of Congress. Meanwhile something might be done in the old Capitol building itself. The members of the Court ought certainly to be given private offices. As things are now, visiting attorneys who seek writs have to call upon the Judges at their private residences.

The new blood on the Supreme Bench is welcome. Never since Washington's day has there been so much at any one time. Within a year President Taft has commissioned five men to sit upon the Bench—that is, if we count the elevation of Mr. Justice White to the Chief Justiceship. Presidents Jackson, Lincoln, and Grant each named five members to the Supreme Court, it is true, but they were distributed throughout an entire term.

The new members should help to expedite the seven hundred-odd cases on

the docket, the largest number in the history of the Court since the passage of the Circuit Court of Appeals Act in 1891-certainly a hundred more cases than were docketed during the corresponding term a year ago. The method of disposing of these cases is in this wise : Each week each Justice receives from the Chief Justice a statement of the names of the case in which the Justice may write an opinion. Then comes a conference of all the Judges, of course behind closed doors. Cases are taken up or postponed according to the wishes of the Justices. If the Chief Justice assigns to any particular Justice the writing of the Court's opinion, that opinion when written must be agreeable to the other Judges. If it is not, then the dissatisfied Justice writes a dissenting opinion. The other dissatisfied Justices generally concur in the dissenting opinion-that is to say, in its final form, after it has been revised to suit particular criticisms. But cases have been known where minority differences could not be reconciled and where no less than four Justices have had each to write a dissenting opinion.

The second reason why the new blood on the Supreme Bench is welcome is because of the fact that the cases now mostly before the Court involve different principles and conditions from those which the Court had to decide when Justice Harlan, for instance, first came to Washington. The change in personnel will, it is to be hoped, specially expedite the final judgment on what the Sherman Anti-Trust Law is or is not-that is to say, what is monopoly-for this law, in its operation, has caused much of the late litigation; indeed, in this respect the new Supreme Court should both simplify procedure and expedite judgment, thus making court litigation less costly and less tedious. the main question to-day is the regulation by law of corporate activity in its relations to the country at large. The Supreme Court has entered upon a new phase of judicature, and there is, appropriately, to meet it a new Supreme Court personnel.


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