other, those who are assembled in this great meeting have their own special responsibility. We who are the lawyers of the New World and of the old mother-country possess, as I have said to you, a tradition which is distinctive and peculiarly our own. We have been taught to look on our system of justice not as something that waits to be embodied in abstract codes before it can be said to exist, but as what we ourselves are progressively and co-operatively evolving. And our power of influence is not confined to the securing of municipal justice. We play a large part in public affairs, and we influence our fellow-men in questions which go far beyond the province of the law, and which extend in the relations of society to that "Sittlichkeit" of which I have spoken. In this region we exert much control. If, then, there is to grow up among the nations of our group, and between that group and the rest of civilization, a yet further development of "Sittlichkeit," has not our profession special opportunities of influencing opinion which are coupled with a deep responsibility? To me, when I look to the history of our calling in the three countries, it seems that the answer to this question requires no argument and admits of no controversy. It is our very habit of regarding the law and the wider rules of conduct which lie beyond the law as something to be moulded afresh as society develops, and to be moulded best if we co-operate steadily, that gives us an influence perhaps greater than is strictly ours; an influence which may in affairs of the state be potently exercised for good or for evil.

This, then, is why, as a lawyer speaking to lawyers, I have a strong sense of responsibility in being present here today, and why I believe that many of you share my feeling. A movement is in progress which we, by the character of our calling as judges and as advocates, have special opportunities to further. The sphere of our action has its limits, but at least it is given to us as a body to be the counsellors of our fellow-citizens in public and in private life alike. I have before my mind the words which I have already quoted of the present President of the United States, when he spoke of "lawyers who can think in the terms of society itself." And I believe that if, in the language

of yet another President, in the famous words of Lincoln, we as a body in our minds and hearts "highly resolve" to work for the general recognition by society of the binding character of international duties and rights as they arise within the AngloSaxon group, we shall not resolve in vain. A mere common desire may seem an intangible instrument, and yet, intangible as it is, it may be enough to form the beginning of what in the end can make the whole difference. Ideas have hands and feet, and the ideas of a congress such as this may affect public opinion deeply. It is easy to fail to realize how much an occasion like the assemblage in Montreal of the American Bar Association, on the eve of a great international centenary, can be made to mcan, and it is easy to let such an occasion pass with a too timid modesty. Should we let it pass now I think a real opportunity for doing good will just thereby have been missed by you and me. We need say nothing; we need pass no cut and dried resolution. It is the spirit and not the letter that is the one thing needful. I do not apologize for having trespassed on the time and attention of this remarkable meeting for so long, or for urging what may seem to belong more to ethics than to law. We are bound to search after fresh principles if we desire to find firm foundations for a progressive practical life. It is the absence of a clear conception of principle that occasions some at least of the obscurities and perplexities that beset us in the giving of counsel and in following it. On the other hand, it is futile to delay action until reflection has cleared up all our difficulties. If we would learn to swim we must first enter the water. We must not refuse to begin our journey until the whole of the road we may have to travel lies mapped out before us. A great thinker declared that it is not philosophy which first gives us the truth that lies to hand around us, and that mankind has not to wait for philosophy in order to be conscious of this truth. Plain John Locke put the same thing in more homely words when he said that "God has not been so sparing to men to make them two-legged creatures, and left it to Aristotle to make them rational." Yet the reflective spirit does help, not by furnishing us with dogmas or final conclusions, or even with lines of action

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