that have crept into the administration of the laws, and to suggest remedies not new but old ones neglected. I am convinced that the remedies for most if not all the ills complained of lie close at hand and are to be found in laws already in existence and in the exercise of long recognized but neglected inherent powers of the court.

In America judges, both state and federal, are by the law clothed with greater powers than judges are in other countries. In one sense there is no limitation to their powers. They are the judges of the constitution, define and construe its terms, and have the last word as to whether a law complies with or violates the Constitution. In our systems of government, the powers of government are divided into three branches, the executive, the legislative and the judicial. Theoretically each is supreme and independent within the scope of its prescribed authority. But in the last analysis, the only supreme power in the republic, is the judiciary. Congress may enact a law clearly constitutional and this law may receive the executive sanction, yet the judicial department, speaking through the supreme court or one of its circuit or district courts, can nullify and set it aside, and such action of the court, except the right of appeal from a lower to a higher court, is final. Again, Congress may pass and the President approve a law obviously in violation of the Constitution, yet if the courts say such a law is constitutional, it is constitutional, and becomes a valid law. The same general observations hold good regarding the government of the different states. other words, our laws, whether constitutions are statutes, are what the judges may pronounce them to be, and for that reason they are essentially creatures of the court.

These reflections alone are sufficient to show how tremendously important it is to have men on the bench of high character, men of integrity, learning and courage. As a corollary of the foregoing proposition we necessarily have what is called judge or court-made law, and it is entirely to the credit of the courts that such laws, generally speaking, are in harmony with and in advancement of recognized principles of enlightened justice. Judge Marshall was truly one of the makers of the Federal Constitution as the members of the constitutional convention. That great instrument in a large measure has the meaning given to it

by that illustrious jurist and his successors.

The legal pro

fession understands that the opinions and decisions of our great judges have their enduring foundation in the research, ability, learning and probity of the great lawyers of the profession.

It is related of Judge Story that on one occasion it became necessary for him, as judge, to construe a law which he himself had prepared for the legislature. At the conclusion of the argument by eminent counsel, the judge declared that when he prepared the law he thought he knew what it meant, but that after hearing argument of counsel he had serious doubts.

So, while they sit in the seats of the mighty, judges are not above but a part of the legal profession, and, perhaps, not the most important part; because, as is the bar so will be the bench. There is nothing in the written law which provides that judges shall decide any case or question in any particular way. In the nature of things there can be no tribunal, in the absence of unprofessional conduct, that can review or pass upon the correctness of their decisions, except, of course, when an appeal lies to a higher court; and to make the matter worse from the layman's point of view, judges are not required to give bonds for the faithful performance of their official duties. Perhaps if some of the people who are now calling for reform of the courts in various ways had had the making of the laws they would not have permitted so palpable a blunder. In the language of the day, why should not judges give bonds, other people do, they are not infallible, and it is really absurd to say that they should not be treated as other people. But wisdom was not born yesterday or even since the Spanish war, and as a conclusive evidence that the authors of our judicial system knew some things, it is a fact that of all officials and government agencies none have been so uniformly efficient, faithful and patriotic as the judges of our courts.

But, my brethren, this unlimited power of judges under the laws is more apparent than real. There are two great restraining and governing factors which keep them within the just limits of the Constitution, which render official bonds and all other law-made guarantees unnecessary, and which have justified the wisdom of the ages in placing

judges in one sense above the law. These factors are, first, the character of the judges, and, second, public opinion. Up to this time in our history these have proven wholly sufficient. Occasional exceptions but emphasize the truth of the general proposition. While judges in a large degree are necessarily a law unto themselves, and, therefore, left to their own judgment and discretion, no other class of men have been so instrumental in establishing a uniform and enlightened interpretation of the laws; none other have proven so steadfast in defense of liberty and free institutions.

An English judge being once pressed by a tyrannical king to state what his decision of a certain question would be, if brought into his court, though knowing that his answer might cost him his head, bowed low before his sovereign and replied, "Your majesty, my judgment will be such as becomes a judge of England to give.'

American courts have shown this same fine spirit in defense of law, and its honest administration. In support of law our courts have rendered unpopular decisions, that is, decisions that did not meet with the public approval, and have brought upon themselves storms of criticism and abuse, but I think of no instance where, when the test came, a reputable court has been found wanting. The action of the judges of the Supreme Court of the United States in the Hayes-Tilden presidential contest is often cited as an instance not in harmony with this statement, but it cannot be said that the judges in that matter acted as a court. The commission was more in the nature of a political tribunal, and if the matter there decided had come before the court as a court in some usual or recognized legal procedure, while there might have been a division of the court, I believe the cleavage would not have been along party lines. Judges, whether elected or appointed, come. from the ranks of the reputable members of the bar, are men of fair reputation and education, have had as their associates members of the legal profession whose good opinion and esteem they highly value, they have through such association and from the practice of the law imbibed the esprit de corps of the bar, the ethics and the traditions of the profession, and when they find themselves in office with its powers and delicate responsibilities to their other qualifications for the position, natural and acquired, there

is added the steadying sense of responsibility which authority always brings. The very fact that a man has been placed upon honor" by his countrymen, in the most important things of life deepens this sense of responsibility and makes it the care and chief object of his life to be faithful to his trust. The most partisan lawyer, his partisanship growing more pronounced as he grows older, placed upon the bench, ipso facto, becomes a changed man. The change is as full and complete as that which overtook Saul on his way to Damascus. The lawyer whose life has been spent in marshaling before courts and juries the strong points of his own and the weak ones of the other side, having only one object in view, and that his client's interest, has been transformed into the just judge, impartially weighing and construing facts on both sides, intent only on one thing and that is doing right according to the law and the evidence. It is not merely the individual person who is judge, but it is the worthy member of a great profession, strengthened, encouraged and restrained by its glorious history and traditions. The public opinion, before spoken of, by which judges are influenced, is not so much the fear of such opinion as respect for it. When a man becomes a judge he does not cease to be human; he naturally loves the good opinion of his fellow citizens, their praise of "Well done, thou good and faithful servant," but while this is true, the part of public opinion of which a judge stands most in awe, which he most desires to conciliate and commend himself to, is that represented by the members of the legal profession, and the judge who has the respect and good will of the members of the profession will also be known to have the respect and good will of the general public. In a somewhat extensive acquaintance with judges, I have never known more than one who did not have this professional pride and ambition. It is unnecessary to say that this one was a demagogue and made the mistake of thinking that a judge, respected by the profession, must necessarily be unpopular with the voters.

Of late years in addition to the two factors which I have mentioned, that is, the personal character of the judges, and their respect for public opinion, it has been thought necessary by some to introduce a new element into the judicial office, by which judges may be made more

efficient and satisfactory, and this is what is called the judicial recall; a kind of peremptory challenge which removes Judex from the sphere of his activities without assigning any reason therefor. The ancient Greeks had a somewhat similar law and we read that in one instance a citizen of Athens was found voting against a man because he was tired of hearing people call him just. The question is one that is at least debatable, but my judgment is that on the whole such a law is unnecessary and would have an injurious effect; that it would tend to lower the high judicial standard of our judges which so far has been maintained. I cannot think, however, that the question is one of any great practical importance. The conduct of an honest, self-respecting judge will be in no wise influenced by such a law and the unworthy fellow will thereby be tempted to decide cases in such a way as will increase his popularity with the multitude, and this is his besetting sin, anyway. I have noticed a few instances, however, in which this law has been used with good effect and if it shall supply a club by which the suffragettes can make police judges of the big cities toe the mark on moral questions it will probably have subserved some useful purpose. But the remedy for unworthy judges must be sought elsewhere than in this kind of a law. In rural districts there is but little ground for complaint on account of the judges, and if political bosses are eliminated there will be as little ground for complaint in our great cities. Judges, whether elected or appointed, should hold office for life or during good behavior, and thus be relieved from the necessity of straining to keep themselves in office, and free from the temptations consequent upon re-election. A judge is sometimes called upon to decide between rendering a judgment which is wrong and popular on one side and one which is right and unpopular on the other, and this is frequently a test of the caliber and fitness of a judge, but life tenure of office would relieve him of all temptations and we should remember that even the Lord prayed that we be not lead into temptation.

In the election or selection of judges an attorney should be taken who has not become too pronouncedly identified with any particular line of business or interest. It is characteristic of the lawyer to believe implicitly in his own