Now, then, that being the case, I have no hesitation in saying to the people in the United States that you should interest yourselves in what Canada is, as far as it is possible for you to do so. You should look forward, as the big neighbor, to going over the fence now and then, - over that dividing line, - and help us improve our buildings and our gardens on our side. We want it. We cannot hope for the development which we must have, if we are to progress, without your assistance, because following the war we cannot go to Great Britain, we cannot go to France, we cannot go to Holland, we cannot go to Germany, or any of the other countries that were so ready to lend us the large sums of money necessary for our development before the war and expect to get any. They are going to need it all at home; that is, they are going to need at home what they have left after they get through paying you. [Laughter.] You have benefited and are benefiting, in a large way, financially, from the war. You have the money on this side of the line. We think we have the opportunity. Our hope is that we can link the two up so that the ultimate result will be that on the northern portion of this continent there will grow up, side by side, two good neighbors, strong, vigorous, virile nationalities, who will live together as good neighbors, settle all their differences in a neighborly way, and who, as a combined force on this North American continent, will be in a position, when the time comes, to assert themselves to the extent that never again can such a thing on the face of the globe happen, as has happened during the last three years. [Applause.]

"

'That is a possibility, gentlemen. In fact, in my mind, it is more than a probability. A large portion of it rests with you. As far as we in Canada are concerned, we are determined to do our share, and I quite sincerely invite you to give some consideration to the subject and to help us in doing it. [Applause.]"

JUSTICE ACCORDING TO LAW

March 15

Address by William G. Thompson, Esq.

At the dinner preceding the address by Mr. William G. Thompson, of the Boston Bar, on "Some Requisites of an Efficient Administration of Justice According to Law," Mr. Henry F. Hurlburt presided, and speeches were made by Hon. Charles E. Burbank, Hon. Robert O. Harris, Daniel J. Kiley, and John F. Crosby, as well as by the guest of the evening.

At the meeting in the auditorium, Mr. Henry F. Hurlburt presided. After a suitable introduction, Mr. Thompson began by pointing out the change that had come in public opinion in the United States of late years. Not only the judiciary as such, but the sort of justice it dispenses, is now under question, as in no other country settled by English-speaking folk. He then proceeded to show how much of this criticism was well founded and how much not. First he defined justice according to law, and showed how it worked. Then he dealt with justice without law, and showed how it was administered. Then he passed to consideration

of some of the requisites of efficient administration of law of the ideal type. The judges must be of a judicial temperament, have a thorough knowledge of the law, and also be familiar with the main departments of modern knowledge and with the currents of modern thought, which knowledge may or may not be acquired by an academic education, but when acquired is known as general cultivation. They must be sympathetic with the point of view of scientific men, familiar with the significant currents of scientific thought, and thus able to mediate between the representatives of common sense in the jury box and the representatives of modern thought who may appear as experts upon the witness stand.

Mr. Thompson then argued that the next requisite in efficient administration of justice is maintenance of the rights of the judge to deal with matters of fact as well as with the testimony and the law. The too general American custom of denying this right in the state courts has dealt the judiciary a deplorable blow, slowily causing a deterioration in the personnel of the bench. Massachusetts has suffered from the change to some extent; the western states more.

On the important details of selecting and retiring judges, Mr. Thompson said:

"In a recent paper, Professor Kales, of the Harvard Law School, has pointed out that the apparent conflict between the election and the appointment of judges is illusory, and that judges are really always appointed, the only question being by whom. It may be by a governor, or, in case of an elective judiciary, by the leaders of the party machines, or by some other self-constituted appointing power, like bar associations, or citizens' committees. And although this situation is disguised, it is not essentially changed under a primary system. The electorate at large has neither the time, the standards, nor the knowledge to determine the qualifications of different lawyers for the bench, any more than they would be able to determine intelligently which of two engineers is most competent to build a bridge. And, as Professor Kales also points out, it is highly unlikely that lawyers possessing the necessary qualifications would have either the time or the taste to obtain a popular following among an electorate, especially a large electorate. The routine work of the judge is not of the sort that attracts popular attention. Indeed, justice itself makes no very strong appeal to the feelings of the average man. For these and other reasons I am personally strongly of the opinion that we ought not to adopt the system of so-called 'elective judges.' Nor do I think that it would at present be practicable to adopt the English plan of an appointment by the executive on recommendation of the highest judicial officer in the state, who is himself, as a member of the government, directly responsible to the people. We should remain content with our system of appointment by the executive. That system, in the hands of an unconscientious or ill-informed man, is susceptible of great abuse, but if vested in a conscientious and intelligent man it is capable of producing the best possible results, as witness many of the judges of our own courts. If the executive power of appointment is used to reward political services, or to give recognition to the racial or religious groups in a community, the result is likely to be inefficiency

in the administration of justice. That conception of democracy which implies that the people are entitled to nothing better than mediocrity in their expert public servants was instinctively rejected when the question was of selecting a man to build the Panama Canal, and it ought to be rejected when the question is the appointment of a man to administer justice. The community is entitled not to the best-qualified Protestant judge, or to the best-qualified Catholic judge, that can be found; but to the best-qualified judge, utterly irrespective of his race. or religion; and the best-qualified judge is not likely to be obtained if the choice is limited by the balancing of such irrelevant considerations. "I conclude, therefore, that a proper conception of executive responsibility in the appointment of judges is an absolute requisite to efficiency in the administration of justice.

As to the judicial tenure of office, there is more doubt. The traditional arguments for a tenure during good behavior, with a provision for impeachment, and for removal by the governor without charges on the address of both houses of the legislature, are as powerful as when they were urged by Rufus Choate, some sixty years ago. The right sort of men can hardly be induced to accept judicial office, with its comparatively small emoluments, if they are likely to be thrown upon the world in middle life or old age, when their opportunity of making a living in the practice of their profession has been much restricted or entirely lost. First-class men will not give a substantial portion of their lives to the service of the state on such terms. It might well be said to those who advocate a limited tenure of judicial office that their arguments are premature until a more sincere and vigorous effort has first been made to select persons who will not need to be retired.

"Doubtless, even if the executive sincerely follows sound standards of appointment, a mistake will occasionally be made. This is merely to say that no system is perfect. It is safer to make provision for the correction of such mistakes by some provision for compulsory retirement at a certain age on an adequate pension than by throwing overboard the system of appointment during good behavior and substituting either a system of appointment or election for a limited term.

Better Judicial Machinery

"Let us now consider the last requisite for an efficient administration of justice, namely, an appropriate organization of the judicial machinery. To perform the judicial business of this Commonwealth, with between three and four million inhabitants, we have seven judges of the Supreme Court, twenty-eight of the Superior Court, twenty-two of the Probate Court, two of the Land Court, sixty-eight District and Police Court judges, omitting special justices, and nine judges of the Municipal Court of the city of Boston, with four special justices. This enumeration does not include the Juvenile Court, the few remaining trial justices, the judges of the Federal Court for this District, or the officials of the Bankruptcy Court. We have, then, one hundred and forty judges to perform our entire judicial business. Besides the judges, we have an indefinite number of masters and auditors who in reality perform the function of assistant judges.

"Now contrast this with the situation in England, with more than forty million people. The House of Lords as a court of appeal consists generally of seven members, including the Lord Chancellor. The Supreme Court of Judicature now consists of thirty-four judges, performing the functions of a court of appeal, a chancery division, a common law division with bankruptcy jurisdiction, a Probate, Admiralty, and Divorce division. The number of County Court judges, who correspond in general to our District and Police Court judges, is now fiftyseven. To this should be added twenty-five Metropolitan Police magistrates, and twenty stipendiary magistrates for the rest of the Kingdom. I have omitted the judicial committee of the Privy Council, because they are mostly concerned with hearing colonial appeals, to which there is no analogy in this Commonwealth.

We have, then, to do the entire judicial business of England and Wales, one hundred and forty-three judges. There are, of course, a number of subordinate officials, called 'masters,' connected with the English courts, as there are with ours, only with somewhat different functions; but they are no more numerous than the corresponding officials whom our courts make use of, and may be disregarded in the comparison. "We therefore find that practically the same number of judges is required in Massachusetts to do the business of four million people as is required in England and Wales to do the business of ten times as many people. The comparison might be made even more unfavorable if we took in Federal judges and bankruptcy officials.

Why the Disparity?

"This great disparity is a fact that must be faced in any discussion of American efficiency in the administration of justice. It is not disposed of by the familiar praise of the courts of this Commonwealth in comparison with the courts of other American states. It is of slight consequence that the courts of other states are less efficient than ours if the courts of other countries are more efficient. The disparity cannot be accounted for on the theory that the English and Welsh are less litigious than we are, although it is doubtless true that an efficient organization, combined with a vigorous administration of justice by able men, with full common-law powers, tends to discourage much speculative litigation. That fact should of course be considered in any comparison of statistics. The disparity in the number of judges may in small part be accounted for by the superiority of their system of practice and procedure, and by the fact that their scale of costs is higher than ours; but after every allowance is made for minor factors, the larger part of the excess of the English efficiency over ours can be accounted for only by the superiority of their organization.

"The most striking difference between their organization and ours is that theirs is based upon the theory of a single court with specialized judges, while ours is based upon the theory of specialized courts without opportunity for the judges themselves to become specialists in any branch of litigation. It is true that the original theory of the framers of the English Judicature Act of 1873 was not wholly carried out by

Parliament. The County Courts at one end and the House of Lords at the other were left as separate organizations, but the theory was sufficiently carried out to demonstrate its great superiority to the theory that preceded it, which was substantially our own. As Professor Pound

has said: None of our state courts, with a number of judges quite as large as the judicial staff of England, is able to dispose of anything like the mass of litigation which passes rapidly through the English courts in the course of a year. . . . The annual average in the King's Bench division from 1909 to 1913 was 61,611 cases; in the Chancery division, 5,742 cases; in the Probate division, 70,366 probate proceedings. The annual average of divorce cases was 1,078 for the same period. These figures are merely for civil cases and do not include the large number of criminal cases which the English courts annually dispose of. The English judges also have jurisdiction in admiralty, in bankruptcy, and, under the railway and canal act, a jurisdiction like that of our extinct Commerce Court, and an appellate jurisdiction in workmen's compensation claims.' Corresponding figures for our courts during the same period are not readily obtainable. Some figures having a bearing upon the subject may, however, be found in the report of the Commission to Investigate the Causes of Delay in the Administration of Justice in Civil Actions made to the legislature of this Commonwealth in the year 1910. Without stopping to analyze these figures in detail, they indicate a great disparity between the number of cases disposed of in any one year by our Superior and Supreme Courts and the number disposed of by the English Supreme Court of Judicature.

The Way Out

"If we should apply the English theory to our own situation, the result would be the vesting of the entire judicial power of the Commonwealth in one court, under the charge of a chief justice, who would have power to assign to the different divisions of the court, like the appellate division, the jury trial division, the equity division, the probate division, and the divorce division, the judges who might seem most competent for the work of any particular division. Such a system would also involve a great saving of time. For if there were a lack of work in one division and a pressure in another, judges could be transferred from one to the other. Under such a system we should never have the situation of some courts overworked and others with not enough to do.

"Of course this system implies a capable administrator in the person of the chief justice. The man at the head of the English system is the Lord Chancellor, who is a part of the government and directly responsible to Parliament, and thus to the people. It would be difficult to introduce that feature into our system, unless we should make the chief justice an elective officer responsible to the people. It seems, however, hardly in accord with our ideas to make the highest judicial officer elective, with comparatively short tenure of office, while the other judges are appointed for a long tenure or during good behavior. But I think this difficulty might be met by vesting in some official or official body, like the Governor's Council, the duty of inspecting from time to time and reporting upon the administrative efficiency of the courts,