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

from one generation to another, adjusted to new conditions of society, and declared from time to time by courts as cases arise. Thorough study is required to enable a judge to know and understand the whole range of legal principles that have thus to be discriminatingly adapted and applied. Work of this kind requires professional experts of the highest proficiency, who have mastered the law as a science and in practice.

Where are we to get such experts? When a man of high character, ability, and intelligence is to be selected for the chief executive office, the electorate can be safely charged with electing one from the necessarily few candidates who are sufficiently prominent. But what of the searching out in a large profession the best expert, the man with real learning, with judicial temperament, with keenness of perception, with power of analysis and nice distinction, with large technical experience? Can he be found better by election or by appointment? There can be but one answer to this query. The selection can be really popular without resorting to an election. The chief executive elected by the people to represent them in executive work does, in appointing a judge, execute the popular will. He can search among the members of the Bar and can inform himself thoroughly as to the one best qualified. Generally he has sources of information, both of an open and a confidential character, and if he is not himself a lawyer or personally familiar with the qualifications of the candidates he has an AttorneyGeneral and other competent advisers to aid him in the task.

For these reasons, in every country of the world, except in the Cantons of Switzerland and the United States, judges are appointed and not elected. With us, in the decade between 1845 and 1855, when new constitutions were being adopted in many states, a change was made to the elective system. It was not an improvement. In some states the change was not made. A comparison between the work of the appointed judges and of the elected judges shows that appointment secures in the long run a higher average of experts for the Bench. The principle of the short ballot, which is much put forward nowadays by reformers, and which thus far is much more honored by them in the breach than

in the observance, really limits the election by the people to the chief executive and to legislators, and delegates to the elected executive the appointment of all other officers, including the judiciary. The executive who makes the appointments is properly held responsible to the public for the character of his selections.

We have had many able judges by popular election. These have owed their preferment to several circumstances. The effect of the old method of appointment was visible in the working of the new system for a decade or more, and good judges were continued by general acquiescence. In some states, indeed, the practice of re-electing judges without contest obtained until within recent years. Moreover, able judges have been nominated often through the influence of leading members of the Bar upon the politicians who controlled the nominations. Shrewd political leaders have not ordinarily regarded a judgeship as a political place, because the office has had comparatively little patronage. If the nominee has been a man of high quality, conspicuously fit, commanding the support of the professional and intelligent non-partisan votes, it has tended to help the rest of the ticket to success. The instances of great and able judges who have been placed on the Bench by election are instances of the adaptability of the American people and their genius for making the best out of bad methods, and are not a vindication of the system. That has resulted in the promotion to the judicial office of other judges who have impaired the authority of the courts by their lack of strength, clearness, and courage, and who have shown neither a thorough knowledge of the customary law, nor a constructive faculty in the application of it. Great judges and great courts distinguish between the fundamental and the casual. They make the law to grow not by changing it, but by adapting it, with an understanding of the progress in our civilization, to new social conditions. It is the judges who are not grounded in the science of the law, and who have not the broad statesmanlike view that comes from its wide study, that are staggered by narrow precedent and frightened by technical difficulty. The decisions of courts criticised for a failure to respond to that progress in settled public opinion which should affect the limita

tions upon the police power, or the meaning of due process of law, have generally been rendered by elected courts. Paradox as it may seem, the appointed judges are more discriminatingly responsive to the needs of a community and to its settled views than judges chosen directly by the electorate, and this because the executive is better qualified to select greater experts.

More than half a century's experience with the election of judges has not, therefore, commended it as the best method, though, for the reasons stated, its results up to this time are better than might have been expected. But with the changes proposed in the manner of making nominations and of conducting elections of judges the system is certain to become less satisfactory. Now we are to have no state or county or district conventions, and the judges are to be nominated by a plurality in a popular primary, and to be voted for at the election on a nonpartisan ticket, without party emblems, or anything else to guide the voter. Like all the candidates for office to be elected under such conditions, they are expected to conduct their own canvass for their nomination, to pay the expenses of their own candidacy in the primary, and in so far as any special effort is to be made in favor of their nomination and election, they are to make it themselves. They are necessarily put in the attitude of supplicants before the people for preferment to judicial places. Under the convention system it happened not infrequently, for reasons I have explained, that men who were not candidates were nominated for the Bench, but now in no case can the office seek the man. Nothing could more impair the quality of lawyers available as candidates or depreciate the standard of the judiciary. It has been my official duty to look into the judiciary of each state, in my search for candidates to be appointed to federal judgeships, and I affirm without hesitation that in states where many of the elected judges in the past have had high rank, the introduction of nomination by direct primary has distinctly injured the character of the Bench for learning, courage and ability. The nomination and election of a judge are now to be the result of his own activity and of fortuitous circumstances. If the judge's name happens to be the first on the list, either at

the primary or the election, he is apt to get more votes than others lower down on the list. The incumbent in office, because he happens to be more widely known, has a great advantage. Newspaper prominence plays a most important part, though founded on circumstances quite irrelevant in considering judicial qualities.

The result of the present tendency is seen in the disgraceful exhibitions of men campaigning for the place of state supreme judge and asking votes, on the ground that their decisions will have a particular class flavor. This is the logical development of the view that a popular election is the only basis for determining right and justice; but it is so shocking, and so out of keeping with the fixedness of moral principles which we learned at our mother's knee, and which find recognition in the conscience of every man who has grown up under proper influence, that we ought to condemn without stint a system which can encourage or permit such demagogic methods of securing judicial position. Through the class antagonism unjustly stirred up against the courts, fiery faction is now to be introduced into the popular election of judges. Men are to be made judges not because they are impartial, but because they are advocates; not because they are judicial, but because they are partisan.

It is true that politics have played a part even when judges have been appointed. They have usually been taken from the lawyers of the prevailing party. The president or a governor appointing them has been elected on a partisan ticket, is the titular head of his party, and is expected to give preferment to those who supported him. This has not, however, resulted in political courts, because the control of the government has naturally changed from one party to another in the course of a generation and has normally brought to the Bench judges selected from both parties; and then, if the judges are made independent by the character of their tenure, the continued exercise of the judicial function entirely neutralizes in them any possible partisan tendency arising from the nature of their appointment.