think it is quite possible to take the Court of Commerce and by actual experience put those judges through such a test in two years as to make them first-class patent judges. One of the troubles about patent law when you go on the Bench is that, because of your ignorance of it you hesitate to take it up. The work of preparing patent opinions at first is very burdensome, indeed, but after a while you rapidly acquire all the law there is peculiar in patent cases, and if you have any taste for fine discriminations and fine points and mechanics, patent cases are as delightful cases to consider and decide as any. Therefore I hope the Commerce Court will be used as the Court of Patent Appeals. The use of the Supreme Court for that purpose, I think, has proven to be a failure. The Circuit Courts of Appeals throughout the country have differed with respect to patent questions, and then we have the anomalous situation where a patent is valid in one circuit and is not valid in another. There ought to be some court in which these questions shall be finally decided, and as the Court of Commerce is a court of five circuit judges by law it would seem to be a good court into which to take such questions, especially as the judges are likely to have ample time to consider all the appeals to be presented.

And now, gentlemen, there is another thought that this meeting suggests, and that is of heartfelt gratitude to the men who in 1787 and 1789-marvelous men-made the Constitution of the United States. In these days when we are all in favor of progress, it is of the highest benefit to the community that we have an instrument made in those days, sufficiently elastic to comprehend all the needed progress and sufficiently restrictive to keep out wild theories that if they were tried would inflict injury on the community and would prove to be failures in the end, and I do thank God that we had John Marshall and his associates when the case of Marbury vs. Madison came up to decide that the courts are the ultimate tribunals to make the law of the legislature square with the Constitution.

The Supreme Court is especially appointed to decide, as Mr. Justice Brewer said in one case, all justiciable questions arising between sovereign states. There comes from the successful oper

ation of that system the suggestion that we ought to apply it and carry it through as far as we may, to the settlement of controversies between nations. It is coming slowly, but I believe it is coming.

We have negotiated two treaties, one with France and one with England, and we have constituted two tribunals: first, a tribunal of arbitration with power simply to decide justiciable questions arising between the parties, and they are defined to be all questions requiring for their solution principles of law and equity. To the second tribunal, the Joint High Commission, consisting of three representatives from each of the two parties, is committed not only the negotiation and recommendation in an advisory capacity in respect of controversies arising, but also the power of final decision, by a vote of five to one, as to whether questions in respect to which the parties differ as to their justiciable character, are justiciable and come under the first section. of the treaty. Now I bring this matter up here just for the purpose of making my appeal to lawyers. The majority of the Committee on Foreign Relations in the Senate has said that to enter into an agreement of that sort by the Senate is for the Senate to delegate some powers that were conferred upon it by the Constitution. There were not in this regard any more powers conferred by the Constitution upon the Senate than there were upon the Executive. I think that is pretty plain, because the Executive has to initiate, and the Senate has to agree to the treaties before they can go into force. Now, my proposition is this: That if the Senate has power to ratify an agreement which shall bind it and the government-or rather which shall bind the government and therefore bind it-to consent to the adjudication of any class of questions arising in the future by a Board of Arbitration, then it necessarily follows that it has the right to consent to this treaty. For the reason that the quesion arising before this commission is what? It is the question of the construction of the first section of the treaty, and the class of questions most likely to arise in arbitration cases is that of the construction of treaties. Therefore, all the Senate agrees to do is to abide by the judgment of this Joint High Commission as to what the construction

of that clause shall be in the future when the occasion arises. In other words, it is only agreeing to do what it has already agreed to do in dozens of treaties, namely, to abide the arbitration of a tribunal as to certain classes of questions that arise in the future. They have done that. Therefore they have assumed the power to bind themselves to abide the judgment as to certain classes of questions in the future, and this is only one of a class, to wit, one of a class of construction of the treaties.

I am most anxious that that feature of the treaty should be allowed to remain in, and I am anxious because I want to make this treaty mean something, I want it to have a binding effect to accomplish something. You know they say the Indians when they are sick don't like any medicine except something that bites-something that is bad to take. I do not think we shall really get ahead with this arbitration business unless we are willing to assume an obligation to execute a judgment that may bite and may be bad for us to take. If we are going to take the position that we will wait until the question arises and then conclude because we do not think we can win in the arbitration case that it is not a justiciable question, then we have written our promise in water and we have made agreements that will dissolve under the test of experience. The result will follow which may be anticipated, that instead of promoting the cause of arbitration we shall have interfered with it, obstructed it, and made it a laughing stock for nations.

My friends, I could not help getting onto my hobby, but it is sufficiently related to the question of law, it is sufficiently related by analogy to the high, and useful and sacred position that the Supreme Court occupies with reference to the states, to justify a reference to it. I thank you sincerely for giving me an opportunity to come before you and talk to you in this informal way. I congratulate you upon the prosperity and the force and the power of the American Bar Association as shown by this great meeting, and I hope you will continue to earn the gratitude of the public by the disinterested work in the cause of law reform in which you are engaged.

(President Taft then left the hall, after which the regular proceedings of the Association were resumed.)

Oscar A. Trippet, of California:

At the instance of California members in attendance I second the motion to adopt the resolution that was read on the recall of judges and which I understand to be still pending.

J. Aspinwall Hodge, of New York:

I propose to vote against this resolution-not because I am in favor of the recall of judges; I am as much opposed to it as any member of the committee, but I am entirely out of sympathy with the resolution as proposed. It does not go to the kernel of the matter. Why is the recall of judges demanded by anybody? The answer is because our courts are assuming legislative functions. If they are legislators, then the recall might be advisable or at least logical, but they are not legislators, and, therefore, there should be no recall. There should be long terms, and not short terms for judges, because they are not legislators. But when they assume the functions of legislators, then there arises a very serious question, and one, which it seems to me is worthy of consideration.

I also think it is a mistake to impugn the motives of those who advocate the recall. It is at least impolitic to accuse those whom you seek to convince. They may be (I believe they are) sincere and patriotic; they are entitled to that assumption.

Nor am I in favor of the remedy proposed by the committee. The proper and efficient remedy is to appeal, not to lawyers and to the various Bar Associations of the country, but to the Bench. The Bench should save itself from having the principle of the recall applied to it, instead of calling upon the Bar to save it.

If you say that this is an attack upon the judiciary, I only answer that I do not attack the judiciary except as they have been attacked by their own members. I refer to the opinions of MR. JUSTICE HARLAN, to the opinions of JUDGE O'BRIEN in the New York Court of Appeals, and those of JUDGE SEYMOUR D. THOMPSON and to many others. If there is any truth in Justice Harlan's opinion in the Standard Oil and Tobacco cases, then there is

of that clause shall be in the future when the occasion arises. In other words, it is only agreeing to do what it has already agreed to do in dozens of treaties, namely, to abide the arbitration of a tribunal as to certain classes of questions that arise in the future. They have done that. Therefore they have assumed the power to bind themselves to abide the judgment as to certain classes of questions in the future, and this is only one of a class, to wit, one of a class of construction of the treaties.

I am most anxious that that feature of the treaty should be allowed to remain in, and I am anxious because I want to make this treaty mean something, I want it to have a binding effect to accomplish something. You know they say the Indians when they are sick don't like any medicine except something that bites-something that is bad to take. I do not think we shall really get ahead with this arbitration business unless we are willing to assume an obligation to execute a judgment that may bite and may be bad for us to take. If we are going to take the position that we will wait until the question arises and then conclude because we do not think we can win in the arbitration case that it is not a justiciable question, then we have written our promise in water and we have made agreements that will dissolve under the test of experience. The result will follow which may be anticipated, that instead of promoting the cause of arbitration we shall have interfered with it, obstructed it, and made it a laughing stock for nations.

My friends, I could not help getting onto my hobby, but it is sufficiently related to the question of law, it is sufficiently related by analogy to the high, and useful and sacred position that the Supreme Court occupies with reference to the states, to justify a reference to it. I thank you sincerely for giving me an opportunity to come before you and talk to you in this informal way. I congratulate you upon the prosperity and the force and the power of the American Bar Association as shown by this great meeting, and I hope you will continue to earn the gratitude of the public by the disinterested work in the cause of law reform in which you are engaged.