the best of his life, and wars eternally against any form, whether it be of hereditary privilege or class legislation, that would handicap a man in the competition of life. This great conception of a "career open to talent," as Napoleon expressed it, or of "the square deal," to use Theodore Roosevelt's effective expression, remains the most dominant and vitalizing influence in life today.

To it we owe the greatness of the Republic. The ideal that every man has a right, free from governmental interference, to make of his dead self the stepping stone to a higher destiny gives to the masses that hope which has made us the most virile nation that the world has ever known. In many other lands, a man is forever identified with his class or caste. Once a coalminer, he and his children and his children's children can never hope to be anything else. Thus lacking an incentive to achievement, he sullenly identifies himself with his class and is deaf to the calls of social justice.

In America the democratic spirit gives to every man the hope of rising. To this we owe our illimitable energy and our inexhaustible strength. It is the great imponderable of the subject, and while there is much in democratic institutions today which, judged by the ponderables, would cause our faith to waver and our minds to be clouded with despair, yet, judged by this great imponderable, we know that the march of man, wherever democracy has led him, is steadily forward. He may, at times, sink into a "slough of despond" or a morass of difficulty, but that eternal hope, which the spirit of democracy has planted in his breast, gives him the strength to struggle out of the morass and march resolutely forward to the "Delectable Mountains." Such was the spirit of Washington, Jefferson, Franklin and Lincoln, and it is this invincible faith, triumphing over fear, that has made them the great leaders of the American people. As long as democracy can produce such leaders, it vindicates itself.

I fear I have detained you far too long, but I cannot refrain, before concluding, from recognizing the fact that democracy has hitherto had its most effective and noblest expression in the Constitution of the United States. It is true that that great charter is not in method wholly democratic. On the contrary,

it marked a salutary reaction against the extreme claims of democracy. Its essential spirit was finely expressed by Edmund Burke, when he said:

Liberty, to be enjoyed, must be limited by law, for law ends where tyranny begins, and the tyranny is the same, be it the tyranny of a monarch, or of a multitude-nay, the tyranny of the multitude may be the greater, since it is multiplied tyranny.

While the Constitution does set limits to the power of the majority and, to this extent, negatives the extreme claims of democracy, yet, as it was adopted by the American people and has now been maintained by them for over one hundred and forty years, it is broad-based upon the more permanent general will of the American people and is, therefore, in the final sense of the word, democratic.

It is significant that, in all the violent changes of this changing world, our form of government has been most stable. It has been in the past, and will increasingly be in the future, the model for democratic governments, and upon its maintenance and perpetuity the future of democratic institutions may depend.

Let us hope, pray and work that the proud prophecy of John Bright, one of the noblest democrats of our time, may yet be verified:

I see from the East unto the West, from the rising of the sun to the going down thereof, in spite of what misled, prejudiced, unjust and wicked men may do, the cause of freedom still moving onward; and it is not in human power to arrest its progress.

JUDICIAL COUNCILS.

BY

ROBERT G. DODGE,

OF BOSTON, MASS.

Four years ago, for the first time in this country, the legislature of one of our states provided by statute for the creation of a permanent official board consisting of judges and practising lawyers, "for the continuous study of the organization, rules and methods of procedure and practice of the judicial system of the state. the work accomplished and the results produced." A biennial report to the legislature upon the work of the courts was provided. for, with "recommendations for modification of existing conditions," and provision was also made for the submission to the courts from time to time of suggestions "with relation to rules and practice and procedure."

Since the first Judicial Council, so called, was thus created in Ohio, similar councils have been established in four other states, and bar associations elsewhere are taking the matter up and appointing committees to investigate and report. Whether these councils will fulfil their purpose, the future only can tell, but the experiment is an interesting one.

In the past, reforms in the judicial system of the several states have been largely brought about in a haphazard way. There has been no official or board whose duty it has been to study continuously the operation of the courts, assemble statistics and other facts, search for means of improvement and recommend desirable changes. The legislatures have been more interested in other matters. Temporary commissions have been appointed to consider particular problems, and have made reports. Bar association committees have striven intermittently and often ineffectively to effect reforms. Much has been left to the initiative of individuals, and the results have not always been fortunate. The profession has been justly criticised for inattention to the problem, and complaints of the work of the courts have been voiced in increasing volume.

It may be that the judicial council idea is to be traced to the conception of a ministry of justice which has of recent years received such weighty indorsement. Such a ministry is needed, Dean Pound said in 1917, "charged with the responsibility of making the legal system an effective instrument for justice," and consisting, as he put it, of "a body of men competent to study the law in its actual administration functionally, to ascertain the legal needs of the community, and the defects in the administration of justice not academically or a priori, but in the light of everyday judicial experience and to work out definite, consistent, lawyer-like programs of improvement." This suggestion was indorsed by Judge Cardozo in 1921, in his brilliant address before the Association of the Bar of the City of New York, in which he deplored the fact that the courts are not helped as they ought to be in adapting law to justice, for the reason that they and the legislature "work in separation and aloofness," and there is no one to mediate between them, no one to give warning that help is needed. "The legislature," he said, "informed only casually and intermittently of the needs and problems of the courts, without expert or responsible or disinterested or systematic advice as to the workings of one rule or another, patches the fabric here and there, and mars often when it would mend. . . . . The duty must be cast on some man or group of men to watch the law in action, observe the manner of its functioning, and report the changes needed when function is deranged."

Judge Cardozo's ministry of justice would have within its purview the whole domain of substantive law, but his reasoning is, in part at least, the same as that on which is based the less ambitious plan of creating permanent official boards for the continuous study of the organization, practice and procedure of the courts.

The first specific suggestion of a Judicial Council of the kind now under discussion appears to have been made in 1921 by the Massachusetts Judicature Commission, a temporary body, appointed under an act of the legislature to investigate the working of the courts and make recommendations. In the course of an elaborate report, the commission called attention to the fact that the courts of Massachusetts had developed as separate organizations, having very little relation to each other and that there.

had never been "any central body of a permanent character for the accumulation of information and the consideration and discussion of questions of organization, practice and procedure bearing on the subject of judicial administration." The commission declared that "it is not a good business arrangement for the commonwealth to leave the study of the judicial system and the formulation of suggestions for its development almost entirely to the casual interest and initiative of individuals," but that there should be a central official body, consisting partly of judges and partly of lawyers, for the continuous study of questions relating to the courts, charged with the duty of investigating the facts and reporting annually to the Governor.

Massachusetts was not the first state to follow this recommendation. Ohio, as I have said, took the lead by establishing a Judicial Council in 1922. Oregon followed in 1923 and Massachusetts in 1924. In 1925 such councils were established by legislation in North Carolina and in the State of Washington, and in the same year the proposal was endorsed by the state bar associations of Pennsylvania and North Dakota. The matter is now under consideration by the Bar Association of Kansas, and it is very likely being discussed in other states.

While Congress, acting upon the recommendation of Chief Justice Taft, provided in 1922 for an annual conference of the senior circuit judges of each circuit, which should be of great benefit, this is not a Judicial Council in the sense in which I think the term should be used. Perhaps the term itself is a misnomer, suggesting a board which is a mere adjunct of the courts. But that is not the idea at all. The idea is that the Council, although containing representatives of the courts, shall be an official body, independent of the courts, that it shall include practising lawyers, and that its functions shall be very different from those of an occasional conference of judges.

It may be said in passing that the need, if there be one, of a Judicial Council can by no means be supplied by conferring broader rule-making powers on courts. Many of the problems which must be considered by the Councils are problems with which only the legislature can ultimately deal. Not the least important function of the Councils, moreover, is to assist in the exercise of the rule-making power by making suggestions to the courts