court of last resort, and thus get a final review of his case by a judicial body acting according to orderly judicial procedure and reasoned judgment, based on established rules and precedents.

Most of the progress made by the French towards judicial review of the acts of administrative officials has taken place under the Third Republic. It was by the law of May 24, 1872, that the Council of State was given its character as an independent court of law, and that the present Conflict Court was created. The Council of State has since then been so liberal in finding grounds to protect the rights of individuals and in checking or restraining any arbitrary, oppressive, or unjust action on the part of administrative officials that to-day the humblest citizen in France, at a trifling expense, may judicially question the act of any administrative or executive official, from a constable to the president of the Republic. In the protection of individual rights the French Council of State has repeatedly annulled acts and orders of the highest governmental departments and even of the president himself. Under the administrative system as now developed in France, the private citizen has probably a greater measure of protection by judicial bodies against arbitrary, unjust, or illegal acts of government officials than in any other country. In a word, since 1872, the whole tendency in France has been toward judicial control. The use of the word "administrative" is apt to mislead us. Though in their origin the present French administrative courts were strictly administrative bodies, to-day they are truly courts of justice, offering all the guaranties afforded by fixed rules of law enforced by learned, impartial and independent judges. The people now look with confidence to these tribunals for the protection of their legal rights and regard them as essentially judicial. It has been found in France, as it will be ultimately found with us, that private rights can be afforded full protection under the rule of law impartially enforced by independent judicial tribunals without unduly interfering with or hampering administrative efficiency.

I find it impossible within the limits of this address to deal satisfactorily or comprehensively with such a large and important subject as the regulation and control of public utilities by means of administrative commissions, and particularly the aspect of judicial review. I can do no more than suggest some points for reflection. It seems to me that the theory of regulation by commissions is inherently sound. Large legislative bodies such as Congress or our state legislatures cannot act in these matters so intelligently and competently as a board or commission of trained experts. The people at large must be protected against those who are engaged in certain businesses in which the public is interested and upon which the public must depend. The managers of these concerns generally have it within their power to oppress the public and make a prey of their necessities. But it should be recognized that such bodies as these commissions are not fitted or qualified by training or temperament for the exercise of judicial power. The corporations and individuals whose businesses are regulated, whose earning capacity may be destroyed, or whose property may be practically confiscated by unwise and unjust regulation, ought to have a day in court as of right before an impartial judicial tribunal composed of men learned in the law and bound to decree justice according to law. If this involves delay and expense, it is far better to submit to that inconvenience than to withdraw the protection of the law from any class in the community. The example or precedent is altogether too dangerous. Neither expedition nor economy has resulted or ever will result in the long run from disregarding fundamentals and confusing powers which in their nature and in their proper exercise are radically different and require different treatment and different points of view.

I am not prepared to say that it would be wise or unwise to create special courts similar to the French administrative courts, or our Court of Claims, or the ill-fated and short-lived Federal Commerce Court. I recognize also that it is by no means

certain that the ordinary law courts are in all cases the best bodies for adjudicating upon the errors or abuses of administrative bureaus. Some exceptions may be necessary. However, generally speaking, my own view is that it would be better and more satisfactory to afford full review of all essentially judicial questions in our regular courts, in view of their learning and training, their long-established prestige, and their moral authority. We might well create special divisions of such courts to hear and determine controversies relating to orders or regulations of our public service commissions. For example, our Court of Claims would probably be a more satisfactory tribunal if it were composed of Supreme Court justices and were organized as a branch or division of that court. A study of the decisions of our ordinary superior courts, federal and state, in cases involving the most complicated problems ever submitted to commissions, such as the Minnesota and Missouri Rate Cases and People ex rel. Kings Co. Lighting Co. v. Willcox,2 must convince us that they are fully competent to deal with all judicial questions likely to arise from time to time in the administration of federal and state commission laws. In most cases much more expedition and economy would be secured if long and formal hearings before commissions were dispensed with and if controverted issues about to be litigated were at the outset taken into a court of justice. A plain and concise statement of the grounds upon which an order of a commission has been based ought to be sufficient to enable the courts to test the contention of the individuals or corporations affected that such order is unreasonable or illegal.

Finally, I venture to predict that the continuance of the present tendency towards vesting judicial power in these administrative bureaus, unless checked, will defeat the whole experiment of public service commissions. The American people will not long be content with having their rights conclusively determined by administrative fiat, but will inevitably

1 230 U. S. 352, 474; 1913.

210 N. Y. 479; 1914.

turn back to the courts of justice and insist upon a judicial trial, with its guaranty of a fair hearing, and will demand reasoned judgment consistently applying ascertained general principles and precedents and excluding official discretion with its danger of action dictated by caprice, prejudice, or passion. We will not permanently tolerate despotism in any form, however temporarily expedient or benevolent. The corresponding risk of ultimate arbitrary power and bureaucratic tyranny is altogether too great. In the last analysis, the survival of selfgoverning democracies and what our fathers termed regulated liberty will depend, as English and American history ought surely to teach us, upon the separation of the judicial power in nation and state and upon its freedom from executive and political control, in a word, upon its complete independence, but above all, if I may recall the immortal language of Magna Carta, upon its exercise only by judges "such as know the law of the realm and mean to observe it well."