looking to rescue civilization from chaos? Is it not that they, like the British, have built their governmental polity on the principles so happily expressed by Burns: "The rank is but the guinea stamp, The man's the gowd for a' that "? But the American people did not any more than the British spring full-panoplied in the robes of freedom from the head of the Jove of Liberty. Whilst their constitution was, as I have said, in the main, an enunciation of basic British principles, it contained one flat contradiction of those principles-it recognized negro slavery. So long as that recognition remained, a canker gnawed at the new nation's heart, which forward thinking Americans recognized must be removed or that nation must perish. As the greatest of Americans phrased it: "This government cannot endure permanently, half slave and half free." This canker was cut out at the fearful cost of four years' civil war, and now there are no Southerners-however sentimentally attached to the lost cause-but acknowledge that the remedy though drastic was necessary. Contrast the history of the United States before the abolition of slavery with its history after the civil war, and you will have another striking proof of my thesis that government must be based on liberty to all and licence to none, that the State must exist for the individual and not the individual for the State. If, then, history shows that the two branches of the English speaking race have their institutions founded on the principles of justice and truth, since it is from those principles we draw our rights as free men, and since we know there can be no rights without correlative duties, the defence of the institutions of our respective countries is the sacred duty of every citizen, but it is peculiarly the duty of the Judiciary and the Bar of those countries, for our calling in life, of necessity, makes us the ultimate arbiters of the working out of these institutions. What is the outstanding danger that threatens not only them but civilization as a whole to-day? Is it not a widespread lack of respect for authority resulting in contempt for law? Insidious propaganda is continuously being carried on to emphasize this condition by those who would destroy human society. It is primarily for us, the custodians of the law, to counteract this propaganda and restore respect for authority. This can only be done by an appeal to the intelligence of all citizens, for, as I have said, universal primary education has in the main taught all men to think for themselves if only in a rudimentary way. Much can be accomplished by seeing that the administration of law accords with the common sense of most. But this, after all, is but a minor portion of our task, and one which on the whole I think we can, without flattering ourselves unduly, say has, for the most part, been successfully carried out. Of much more importance; from the broader point of view, is it that the people at large be informed as to what are the true principles of government, and who so qualified to impart that information as we whose daily business it is to work out our laws and to note whether they are in accord with truth and justice or not? Law and ethics are not coterminous sciences, though of necessity their limits overlap. The province of law is accurately stated in the common law maxim, "Sic utere tuo ut alienum non laedas," if we view that maxim as applying not to property only but to the whole psychological field of volition. Ethics, on the other hand, has more to do with conduct as conduct affects the individual himself. A prolific cause of the widespread lack of respect for authority is, I think, the modern tendency in legislation to enter upon the field of ethics. Lest I be misunderstood, let me say I am not referring to the burning issue of prohibition. I am quite prepared to admit that the question, whether prohibition falls within the purview of municipal law or not, is an arguable one. But the multiplicity of laws dealing with matters that are in essence questions of individual conduct weakens respect for authority, for it arouses in the citizen a sense of injustice, and, what is vastly more important, it strikes directly at the principle that the State exists for the individual and not the individual for the State. Like feudalism, its logical outcome is despotism, and if you agree with what I have said. of the teachings of history, that means the ultimate destruction of any State which persistently adheres to such a course. Of the same character is class legislation; and the tendency of the electorate, both in Canada and the United States, to split up into groups with the avowed object of obtaining such legislation is fraught with the gravest consequences to both countries. Liberty and union. are the twin ideals of the American Republic. Liberty and union. are similarly the twin ideals of the Commonwealth of nations called the "British Empire." There can be no liberty, there can be no union where there is class domination. The ship of State must be steered between the Scylla of the old doctrine of laissez-faire, with its merciless exploitation of the under dog, and the Charybdis of modern nostrums, be they dictation by the Proletariate, communism, socialism, or any other "ism" that ignores the fundamental traits of human nature. We, who by training and life-long experience have learned to deal with first principles, and to deduce results therefrom, should see to it that our countrymen are enlightened as to whither these tendencies I have mentioned are leading them. Nor should our efforts be confined to the field of municipal law in our respective countries. The great war has taught many lessons, but the outstanding one to my mind is the interdependence of all nations. The annihilation of time and the practical annihilation of space by modern inventions with the consequent development of international trade have rendered impossible for any nation the policy of splendid isolation however much such a policy may commend itself to any particular country. Again, let me not be misunderstood. I have no intention of introducing such controversial questions as the attitude of the United States to the League of Nations, or the proposal of President Harding for the organization of a world Court. These are specific remedies suggested to the people of the United States for the cure of the world's ills, and it is for the people of the United States, and for them exclusively, to pass upon their efficacy. The fact, however, that these matters are important political issues in that country is further proof, were such needed, of international dependence. Since then there must be international relations, the very existence of the race depends upon the principles regulating these relations. Are they to be the principles of force or the principles of law? In view of the results of the Great War, it needs no argument to show that, if force is to be the governing factor, barbarism, if not annihilation, awaits humanity. Law then must rule these relations and it is primarily for us, the servitors of the law, to bring home that fact to our fellow-countrymen in Canada and the United States, and enforce its acceptance through the agency of an enlightened public opinion. And that international law must be based on the same eternal principle of justice and truth as municipal law, liberty to all, licence to none,-Sic utere tuo ut alienum non laedas in the wide sense of that maxim which I have mentioned. What a privilege to belong to a profession which, apart from its technical side, makes such an insistent call upon its members for such high endeavor. If you, Gentlemen of the Bench and Bar of Washington, and we, and all other servitors of the law throughout the world, put our shoulders to the wheel, success, though it may be long in coming, is assured, for intelligence must rule humanity, or it must cease to be. And intelligence, given proper facts upon which to act, will always make due obeisance to law. Surely we will not fail to answer the call; surely we will do our part-and it is a great part-to bring about the realization of the dream embodied in the burning words of the peasant poet written over a hundred years ago: "Then let us pray As come it will for a' that, That mankind a' the world o'er Shall brithers be for a' that." When that great day at last arrives, when the supremacy of law is universally recognized, then will our noble mistress, the Law, be able to open the great doomsday book of humanity, containing as it does the names of hundreds of millions of human beings of every creed and color-Christian and pagan, Mohammedan and Hebrew, Buddhist and Confucian; white, black, red, brown and yellow-then indeed I say may she open that great book, and with firm hand, and unfaltering faith in the future of humanity, write therein in letters of celestial radiance-for the blessing of Almighty God will be upon her pen-the glorious words: "Peace on earth to men of good will." Vancouver. D. MURPHY. THE THEORY OF JUDICIAL DECISION. III. A THEORY OF JUDICIAL DECISION FOR TO-DAY.' In a developed legal system when a judge decides a cause he seeks, first, to attain justice in that particular cause, and second, to attain it in accordance with law-that is, on grounds and by a process prescribed in or provided by law. One must admit that the strict theory of the last century denied the first proposition, conceiving the judicial function to begin and end in applying to an ascertained set of facts a rigidly defined legal formula definitely prescribed as such or exactly deduced from authoritatively prescribed premises. Happily, even in the height of the reign of that theory, we did not practise what we preached. Courts could not forget that they were administering justice, and the most that such a theory could do was 1 The third of three lectures delivered before the Bar Association of the City of New York on January 17th and January 23rd, 1923. It appeared in the Harvard Law Review, vol. 36, p. 940. It is reprinted Lere with the permission of the author, the Harvard Law Review Assocation, and the Bar Association of the City of New York. to hamper the judicial instinct to seek a just result. The proceedings of our Bar associations and the memoirs of our judges written by lawyers are full of proofs of the regard accorded by layman and lawyer alike to the strong judge who knew how to use the precepts of the law to advance justice in the concrete cause. Whenever the exigencies of legal theory did not interfere with expression of our real feeling, we honored the magistrate who administered justice according to law. When justice in the cause in hand has been attained as near as may be and has been attained on grounds and in a manner prescribed by law, the duty of the judge under the civil law has been performed. But the Anglo-American judge must do more. At least if he is an appellate judge, and to some extent in any court of general jurisdietion, he must so decide that his decision will enter into the body of the law as a precedent. He must so decide that his decision or the grounds thereof will serve, first, as a measure or pattern of decision of like cases for the future, and, second, as a basis of analogical reasoning in the future for cases for which no exact precedents are at hand. In a very great proportion of the causes that come before the judge on the crowded judicial calendars of today this additional duty is relatively negligible. Happily, the bulk of these cases repeat or ring insignificant changes upon familiar states of fact. Yet in an appellate court, which has the power and hence the responsibility of laying down a binding precedent by its decision, the fact that each departure, however slight, from the states of fact to which settled legal precepts have attached defined legal consequences calls for consideration not merely of the relation of such departure to the just result in that case, but quite as much of the possible operation of the decision as a precedent or as furnishing an analogy for future cases-this responsibility adds to the burden of the tribunal. Indeed the necessity of weighing not merely the grounds of its decision, but the exact words in which those grounds are expressed with reference to their possible use in other cases and thus of foreseeing within limits the potential analogical applications thereof, is perhaps the gravest of the burdens involved in the crowded dockets of modern American appellate courts. If it were not for the need of scrupulously careful formulation of their decisions with reference to other cases in the future, our appellate courts could despatch the business that comes before them with less than half of the effort which our system of precedents requires. As it is, one or both of the aspects of the court's function must suffer. Having to decide so many cases and to write so many opinions, either considera |