played comparatively little part in the various aspects of the public discussion of our judicial system, and it is therefore especially gratifying to note that the first paper of the afternoon will be devoted to an examination of our system of appointing judges.

The censorship of laws, through the determination of the rights of individuals, with the consequent detachment, in practise, at least, of our judges from direct assaults upon or defense of our laws, has continued to be the method of squaring our legislation with the mandates of our constitutions, state and national. This device was believed by the founders of our political system to be, and has until recently been praised by political philosophers and writers as being the most powerful barrier yet devised against the tyranny of political assemblies and of popular majorities. Changing times and changing conditions have, however, brought change in opinion, certainly with a very considerable number of our political thinkers, and it is now insistently urged that the judicial interpretation of laws and constitutional provisions which some members of the community believe to interfere with social progress should be modified by subjecting the judicial function to popular control through the devices of recall of judicial decisions and recall of judges.

The recall of decisions, as it has been defined by ex-President Roosevelt, its most prominent advocate, as will doubtless be made to appear by the discussions at these meetings, is in its essence a form of constitutional amendment, and in practise will affect the judiciary in about the same manner and to the same extent as any other method of constitutional amendment by popular vote. The recall of judicial decisions, therefore, despite its somewhat misleading name, does not directly affect the judiciary, but rather is a scheme for a perpetual popular convention, by which the constitution may be made always to mean what a majority of the electorate wish it to mean. Whatever our views may be about the desirability of this method of constitutional amendment (and personally it seems to me an innovation which will be found to be impracticable in operation and fraught with danger to our institutions,) we shall be obliged to concede that its adoption would leave our judicial system in just about the

situation which it now occupies in our scheme of government, although it is to be feared that judges would not find the task of interpretation of our constitution any less perplexing and difficult after its provisions had been subjected to the process of amendment by the recall of decisions.

The recall of judges, however, vitally affects the position of the judiciary in our governmental plan. The recall of judges, if adopted, would be exercised, we may assume, either because the recalled judge is corrupt or incompetent, or because his view of the law does not agree with that of the electorate, or so much of it as takes a sufficiently active interest in the subject to go to the polls and vote on the question. In so far as we favor the recall as a cure for the corrupt or incompetent judge, I have already suggested the wisdom of careful inquiry directed toward the question whether our system of selection is the best adapted to prevent the recurrence of this evil. A second consideration should be whether, assuming the existence of a properly safeguarded system of selecting judges, the rare case of corruption or gross incompetency in judicial office under such a system could not be adequately dealt with through the process of impeachment. We should also inquire whether the right or privilege of recall would be likely to be wisely and justly exercised, so that only the corrupt and incompetent judge would be recalled, and finally, whether the recall would leave to the judge that freedom and independence which are essential to the maintenance of personal rectitude and to the exercise of sound professional judgment.

In the case of the recall of the judge because his view of the law or the constitution is not acceptable to the people, we subject, always potentially at least, the law itself, through the person of the judge, to "the wanton assaults and the daily aggressions of party spirit." The law itself, through its duly constituted mouthpiece, becomes the center and subject of political strife. The judge's position is changed from that of the arbiter of private litigation determining rights of individuals, unbiased by personal or political considerations, to that of the assailant, or defender, as the case may be, of the law or the constitution, and the soundness or unsoundness of his decision as the sufficient

reason for the continuation or cutting off of his official life becomes the subject of political controversy. Such a step is necessarily the great and final one, not only toward pure democracy, but toward shifting the law, wherever it affects in the same way any considerable number of people, from its semi-scientific basis, as developed by the skill and professional learning of the magistrate and of the legal profession generally, to a political basis, and its development in form and substance must be profoundly influenced by the determination of popular vote.

Such are in brief outline the issues, or rather the salient points which present themselves in any orderly and logical examination of the current discussions of our judicial system. How genuine are the faults with which our existing system is charged, whether the proposed changes are wise or unwise in principle-in short, whether they are worth the price we must pay for them—and whether they will work in practise, are questions which I shall leave to the speakers of the afternoon to answer. They will support their conclusions with appropriate arguments.

I shall take the liberty of introducing to you all three of the speakers of the afternoon at once; not only to avoid the usual unnecessary repetitions in performing that function, but in order that the harmonious development of the discussion may be jarred by no discordant note from your somewhat conservative presiding officer.

The paper on the elective and appointive methods of selection of judges will be read by the Honorable Learned Hand, United States District Judge for the Southern District of New York. Of Judge Hand it need be said only that any system of selecting judges which operates to select a judge of the learning, ability and fidelity of Judge Hand has much to commend it, and if a system could be devised by which all judges should be of like character and ability, there would be no occasion for this discussion.

Mr. Roe and Mr. Dougherty, who will read papers on the recall of judges, are well-known lawyers in this city, well qualified by experience and ability for the discussion of that subject. I suspect that the unconscious influence of environment

will be revealed in their respective papers. I do not know what their views are upon this important subject, but I know that Mr. Dougherty was born and has lived all his life in conservative New York. Mr. Roe, on the other hand, was for some years the law partner and associate of Senator La Follette, and must have imbibed progressivism in the very air he breathed, and so they are typical representatives of the two schools of thought on this subject, and we may look to them to present the views and strongest arguments of each with respect to it.

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THE ELECTIVE AND APPOINTIVE METHODS OF

SELECTION OF JUDGES'

LEARNED HAND

United States District Court, New York City

'N England the crown has from the earliest times appointed the judges, originally with no very definite limitation of their duties to functions now regarded as judicial. They remained subject to removal by the crown until 1688, after which time their tenure was during good behavior. One of the important causes which dethroned the Stuarts was their coercion of the judges, and much of the American feeling for an independent judiciary as the security of liberty undoubtedly goes back to that period and to the great English struggle for popular government, because the colonists were nearly all good Whigs and especially fond of the Bill of Rights. Nevertheless, it was George III, the apostle of absolutism, who finally secured the entire independence of the judges by providing that they should keep their commissions on the demise of the crown.

When the colonies came to make their constitutions, they generally accepted such institutions as they were used to, and most of them provided for the appointment of the judges by the executive. Yet even at the outset, in some states the elective principle obtained. Thus in New Jersey, Virginia and South Carolina the legislature elected the judges, and Vermont and Tennessee when they became states in 1793 and 1796 each adopted the same practise. Georgia has the distinction, good or bad, of being in 1812 the first state to elect any judges by vote of the people, though the change applied only to the inferior courts, and it was not till twenty years later that Mississippi, in

a burst of democratic enthusiasm, became the first to elect all its judges by popular vote. Since that time this method has been very generally extended. The great state of New York,

1 Read at the meeting of the Academy of Political Science, October 25, 1912.