that are always definite, but by the insight which it gives; an insight that develops in us what Plato called the "synoptic mind"; the mind that enables us to see things steadily as well as to see them whole.

And now I have expressed what I had in my mind. Your welcome to me has been indeed a generous one and I shall carry the memory of it back over the Atlantic. But the occasion has seemed to me significant of something beyond even its splendid hospitality. I have interpreted it, and I think not wrongly, as the symbol of a desire that extends beyond the limits of this assemblage. I mean the desire that we should steadily direct our thoughts to how we can draw into closest harmony the nations of a race in which all of us have a common pride. If that be now a far-spread inclination, then indeed may the people of three great countries say to Jerusalem "Thou shalt be built," and to the temple "Thy foundation shall be laid."

THE SELECTION AND TENURE OF JUDGES.

BY

WILLIAM H. TAFT,

OF CONNECTICUT

The most conspicuous feature of the new government under the Federal Constitution was its division into three parts-the legislative, the executive and the judicial. Experience has vindicated that division, except, it may be, that some lack of efficiency has shown itself in the absence of more useful cooperation between the executive and the legislative branches. The wisdom of keeping the executive and the legislative branches apart from the judiciary has, however, been confirmed by the event, not only under the American Constitution, but in England and in all the states under her flag. In the United States, where judicial systems have different degrees of this quality, permitting comparison, the greater the independence of the courts the stronger their influence, and the more satisfactory their jurisdiction and administration of justice.

In a popular government, the most difficult problem is to determine a satisfactory method of selecting the members of its judicial branch. Where ought such power to be placed? It is a great one. It is said it ought not to be entrusted to irresponsible men. If this means that judges should not be men who do not understand the importance of the function they are exercising, or the gravity of the results their decision may involve, or do not exert energy and sincere intellectual effort to decide according to law and justice, every one must concur. But if it means that judges must be responsible for their judgments to some higher authority, so that for errors made in good faith they incur a personal liability, then we know from centuries of actual experience that the interest of justice, pure and undefiled, requires their immunity. Finality of decision is essential in every branch of the government, or else government cannot go

on. This is as true of its judicial branch as of other branches. Therefore, somebody must have the final word in judicial matters, and the only question is who can best exercise this power. The answer to the question must be found in the real character of the function which the judges are to perform.

There is a school of political philosophers today who say that there are no positive standards of right and justice, but that these vary with the popular will, and that we are to learn what they are from its expression.

If right and justice are dependent on the votes of the electorate, and if what are known as individual rights are merely privileges held at the will of a majority, then the proposition that the judicial officer represents the people in the same sense as the executive officer, so that when the electoral majority differs from his judgment he ought to be removed, has some logical foundation. So, too, in this view, the proposition that the final decision of the courts shall be submitted on review to a popular election has reason in it.

But I shall assume, for the purposes of this discussion, that principles of right and justice and honesty and morality are not merely conventional and have a higher source than a plebiscite.

There is a broad field for the proper exercise of legislative power in prescribing rules of human conduct, and it is the function of courts to interpret them. This is the work of trained lawyers who know the theory and purpose of government, who are familiar with previous statutes, and who understand legislative methods of expression so that they can put themselves in the attitude of the legislature when it acted. When it is the duty of a court to say whether what was enacted by the legislature under the forms of law is within its power, it must discharge a delicate duty and one requiring in its members ability, learning and experience properly to interpret both the seeming law and the constitution, and properly to measure what was within the permissible discretion of the legislature in construing its own authority. The majority of questions before our courts, however, are neither statutory nor constitutional, but are dependent for decision upon the common or customary law handed down

from one generation to another, adjusted to new conditions of society, and declared from time to time by courts as cases arise. Thorough study is required to enable a judge to know and understand the whole range of legal principles that have thus to be discriminatingly adapted and applied. Work of this kind requires professional experts of the highest proficiency, who have mastered the law as a science and in practice.

Where are we to get such experts? When a man of high character, ability, and intelligence is to be selected for the chief executive office, the electorate can be safely charged with electing one from the necessarily few candidates who are sufficiently prominent. But what of the searching out in a large profession the best expert, the man with real learning, with judicial tem perament, with keenness of perception, with power of analysis and nice distinction, with large technical experience? Can he be found better by election or by appointment? There can be but one answer to this query. The selection can be really popular without resorting to an election. The chief executive elected by the people to represent them in executive work does, in appointing a judge, execute the popular will. He can search among the members of the Bar and can inform himself thoroughly as to the one best qualified. Generally he has sources of information, both of an open and a confidential character, and if he is not himself a lawyer or personally familiar with the qualifications of the candidates he has an AttorneyGeneral and other competent advisers to aid him in the task.

For these reasons, in every country of the world, except in the Cantons of Switzerland and the United States, judges are appointed and not elected. With us, in the decade between 1845 and 1855, when new constitutions were being adopted in many states, a change was made to the elective system. It was not an improvement. In some states the change was not made. A comparison between the work of the appointed judges and of the elected judges shows that appointment secures in the long run a higher average of experts for the Bench. The principle of the short ballot, which is much put forward nowadays by reformers, and which thus far is much more honored by them in the breach than

in the observance, really limits the election by the people to the chief executive and to legislators, and delegates to the elected executive the appointment of all other officers, including the judiciary. The executive who makes the appointments is properly held responsible to the public for the character of his selections.

We have had many able judges by popular election. These have owed their preferment to several circumstances. The effect of the old method of appointment was visible in the working of the new system for a decade or more, and good judges were continued by general acquiescence. In some states, indeed, the practice of re-electing judges without contest obtained until within recent years. Moreover, able judges have been nominated often through the influence of leading members of the Bar upon the politicians who controlled the nominations. Shrewd political leaders have not ordinarily regarded a judgeship as a political place, because the office has had comparatively little patronage. If the nominee has been a man of high quality, conspicuously fit, commanding the support of the professional and intelligent non-partisan votes, it has tended to help the rest of the ticket to success. The instances of great and able judges who have been placed on the Bench by election are instances of the adaptability of the American people and their genius for making the best out of bad methods, and are not a vindication of the system. That has resulted in the promotion to the judicial office of other judges who have impaired the authority of the courts by their lack of strength, clearness, and courage, and who have shown neither a thorough knowledge of the customary law, nor a constructive faculty in the application of it. Great judges and great courts distinguish between the fundamental and the casual. They make the law to grow not by changing it, but by adapting it, with an understanding of the progress in our civilization, to new social conditions. It is the judges who are not grounded in the science of the law, and who have not the broad statesmanlike view that comes from its wide study, that are staggered by narrow precedent and frightened by technical difficulty. The decisions of courts criticised for a failure to respond to that progress in settled public opinion which should affect the limita