paid. Our conclusion, therefore, is that the plaintiff can remain in court for the sole purpose of defending the claim pleaded by the cross-complaint; and that, no question having been raised as to defendant's capacity to sue, it is entitled to prosecute the cause of action pleaded in its cross-complaint."

In the case of State ex rel. Preston Mill Co. v. Howell, 67 Wash. 377, the court was called upon to construe another provision of the act regulating corporations, and in so doing said: "These respective acts were not primarily directed against corporations; they were revenue acts, pure and simple, and the provisions directed against corporations were for the purpose of enabling the state to enforce the payment of its revenue and not leave it to the voluntary act of the corporation."

The language here used, and that found in the first opinion rendered in the North Star Trading Company case, was relied upon for support in the last decision made by the Washington court on this question, namely, Eastman & Company v. Watson, 72 Wash. 522, decided March 28, 1913. In this last case the action was begun on December 23, 1911. Upon cross-examination the president of the plaintiff corporation testified that the license fee was paid February 16, 1912. The case was tried May 1, 1912. Judgment went for the plaintiff, and the defendants appealed, basing their appeal upon the failure of the plaintiff to prove payment of the license fee prior to the institution of the action. The court, after quoting from the North Star Trading Company case, and the case of State ex rel. Preston Mill Co. v. Howell, said: "There can be no doubt that the objects of the statute were correctly stated in these cases. If the plaintiff corporation failed to prove at the trial that its license fee has been paid, the court is required to dismiss the complaint; but where it is shown that the fee is paid at that time, the courts will not dismiss the action, because the requirement of the statute is fully met. If the action is brought when the fee is in default, the action may be abated, upon proper showing, until the fee is paid. If no showing is made, the defendant waives the question. [Citing cases.] But after the fee is paid, though tardy, the corporation is restored to its right to maintain actions."

The last holding seems to be in harmony with the modern tendency as to the treatment of corporations. Legislatures and courts are getting away from the idea that corporations must be penalized merely because they are corporations. It is also in harmony with the present day tendency as to the interpretation of statutes in general, and especially statutes relating to the conduct of industrial affairs. When the purpose of a law has been accomplished, the courts should be satisfied therewith, and where this is true there will the greatest measure of substantial justice be meted out.

W. F. MEIER, of the Seattle Bar.

"It is a mistake to say . . . that if the man on the spot, even an expert, does what his judgment approves, he cannot be found negligent. The standard of conduct, whether left to the jury or laid down by the court, is an external standard, and takes no account of the personal equation of the man concerned." Per Mr. Justice Holmes, in Oceanic Steam Nav. Co. v. Aitken, 196 U. S. 589, 25 S. Ct. 317.

THE SELECTION AND TENURE OF JUDGES.*

THE most conspicuous feature of the new government under the Federal Constitution was its division into three parts-the legislative, the executive and the judicial. Experience has vindicated that division, except, it may be, that some lack of efficiency has shown itself in the absence of more useful co-operation between the executive and the legislative branches. The wisdom of keeping the executive and the legislative branches apart from the judiciary has, however, been confirmed by the event, not only under the American Constitution, but in England and in all the states under her flag. In the United States, where judicial systems have different degrees of this quality, permitting comparison, the greater the independence of the courts the stronger their influence, and the more satisfactory their jurisdiction and administration of justice.

In a popular government the most difficult problem is to determine a satisfactory method of selecting the members of its judicial branch. Where ought such power to be placed? It is a great one. It is said it ought not to be intrusted to irresponsible men. sible men. If this means that judges should not be men who do not understand the importance of the function they are exercising, or the gravity of the results their decision may involve, or do not exert energy and sincere intellectual effort to decide according to law and justice, every one must concur. But if it means that judges must be responsible for their judgments to some higher authority, so that for errors made in good faith they incur a personal liability, then we know from centuries of actual experience that the interest of justice, pure and undefiled, requires their immunity. Finality of decision is essential in every branch of the government, or else government cannot go 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 to-day 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 legisla

*Address by William H. Taft at the meeting of the American Bar Association at Montreal.

ture 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 attorney-general 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 in 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 limitations 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 non-partisan 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 endency 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.

The

More than this, there is a noticeable disposition on the part of some chief executives to disregard party in making judicial appointments, and this ought to be so. In the early history of our country, and indeed down to the Civil War, the construction of the Constitution as to the powers of the federal government was a party question, and doubtless affected the selection of federal judges. Yet the effect of the judgments of Marshall and his court was not weakened by Taney and his Democratic associates when they came to consider the Constitution. Federalist party died in 1800, but its national view of our government was vitalized by John Marshall, and preserved by the Supreme Court in unchanged form until the Civil War robbed the state's rights issue of its political and sectional importance. To-day a sound and eminent lawyer of either party who can conscientiously take the oath to support the Constitution may be appointed by a conscientious executive. What is true of the national government is true of the state governments, and there is not the slightest reason why an executive should not appoint to the judiciary of his state qualified persons from either party.

I come now to consider what should be the judicial tenure of office. In our federal and state Constitutions the rights of the individual as against the aggression of a majority of the electorate, and, therefore, against the government itself, are declared and secured in a way peculiar to our Anglo-Saxon ancestors. The abstract declarations in favor of personal liberty and the right of property in the fundamental law of the continental countries were often as simple as in ours, but it was in the provision for the specific procedure to secure them that the early English charters of freedom, the Magna Charta, the Petition of Right and the Bill of Rights, were remarkable. This procedure is preserved in our constitutions, and upon the initiative of the individual who conceives his rights infringed, is to be invoked in the courts. Therefore, the first requisite of the judiciary is independence of those branches through the aggression of which the rights of the individual may be impaired. The

choice of the judges must always rest either in a majority of the electorate of the people, or in a popular agent whom that majority selects, and so must be directly or indirectly in control of the party to be charged in such controversies with the infringement of individual rights. How, therefore, can we secure a tribunal impartial in recognizing such infringements and courageous enough to nullify them? It is only by hedging around the tenure of the judges after their selection with an immunity from the control of a temporary majority in the electorate and from the influence of a partisan executive or legislature.

Our forefathers who made the Federal Constitution had this idea in their minds as clear as the noonday sun, and it is to be regretted that in some of their descendants and of the successors in their political trust this sound conception has been clouded. They provided that the salaries of the judges should not be reduced during their terms of office, and that they should hold office during good behavior, and that they should only be removed from office through impeachment by the House of Representatives and a trial by the Senate. The inability of Congress or of the Executive, after judges have been appointed and confirmed, to affect their tenure has given to the federal judiciary an independence that has made it a bulwark of the liberty of the individual. On the other hand, this immunity has had some effect in making Congress grudge any betterment of the compensation to these great officers of the law. Congress has failed to recognize the increased cost of living as a reason for increasing judicial salaries, although this fact has furnished the ground for much other legislation. They have declined to conform the income of the judges to the dignity and station in life which they ought to maintain, and have kept them at so low a figure as to require from that class of lawyers who are likely to furnish the best candidates for judicial career a great pecuniary selfsacrifice in accepting appointment. I presume, therefore, that in spite of the efforts of the Bar and of men of affairs to increase judicial salaries, and in spite of the confession as to the cost of living in Washington that actual service in the government wrings from the advocates of a simple life who happen to get into office, we must continue to require from those who have the honor, the responsibility and the labor of the exercise of judicial functions under the federal government, mean living and high thinking, and we must endure the indignation that is justly stirred in us when widows and children of men, able and patriotic, who have served their country faithfully and have done enormous labor for two or three decades on the Bench, are left without sufficient means to live. Nothing but the life tenure of the federal judiciary, its independence and its power of usefulness have made it possible, with such inadequate salaries, to secure judges of a high average in learning, ability and character.

When judges were only agents of the king to do his work, it was logical that they should hold office at his pleasure. Now, when there is a recrudescence of the idea that the judge is a mere agent of the sovereign to enforce his views as the only standards of justice and right, we naturally recur to the theory that judges should hold their office at the will of the present sovereign, to wit, the controlling majority or minority of the electorate. The judicial recall is a case of atavism and is a retrogression to the same sort of tenure that existed in the time of James I, Charles I, Charles II and James II, until its abuses led to the act of settlement securing to judges a tenure during their good behavior. It is argued that there is no reason to object to a recall of judges that does not apply to judges elected for a term of years. The answer is that the conceded objections

ture 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 attorney-general 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 in 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 setiled public opinion which should affect the limitations 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 non-partisan 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 endency 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.

The

More than this, there is a noticeable disposition on the part of some chief executives to disregard party in making judicial appointments, and this ought to be so. In the early history of our country, and indeed down to the Civil War, the construction of the Constitution as to the powers of the federal government was a party question, and doubtless affected the selection of federal judges. Yet the effect of the judgments of Marshall and his court was not weakened by Taney and his Democratic associates when they came to consider the Constitution. Federalist party died in 1800, but its national view of our government was vitalized by John Marshall, and preserved by the Supreme Court in unchanged form until the Civil War robbed the state's rights issue of its political and sectional importance. To-day a sound and eminent lawyer of either party who can conscientiously take the oath to support the Constitution may be appointed by a conscientious executive. What is true of the national government is true of the state governments, and there is not the slightest reason why an executive should not appoint to the judiciary of his state qualified persons from either party.

I come now to consider what should be the judicial tenure of office. In our federal and state Constitutions the rights of the individual as against the aggression of a majority of the electorate, and, therefore, against the government itself, are declared and secured in a way peculiar to our Anglo-Saxon ancestors. The abstract declarations in favor of personal liberty and the right of property in the fundamental law of the continental countries were often as simple as in ours, but it was in the provision for the specific procedure to secure them that the early English charters of freedom, the Magna Charta, the Petition of Right and the Bill of Rights, were remarkable. This procedure is preserved in our constitutions, and upon the initiative of the individual who conceives his rights infringed, is to be invoked in the courts. Therefore, the first requisite of the judiciary is independence of those branches through the aggression of which the rights of the individual may be impaired. The

choice of the judges must always rest either in a majority of the electorate of the people, or in a popular agent whom that majority selects, and so must be directly or indirectly in control of the party to be charged in such controversies with the infringement of individual rights. How, therefore, can we secure a tribunal impartial in recognizing such infringements and courageous enough to nullify them? It is only by hedging around the tenure of the judges after their selection with an immunity from the control of a temporary majority in the electorate and from the influence of a partisan executive or legislature.

Our forefathers who made the Federal Constitution had this idea in their minds as clear as the noonday sun, and it is to be regretted that in some of their descendants and of the successors in their political trust this sound conception has been clouded. They provided that the salaries of the judges should not be reduced during their terms of office, and that they should hold office during good behavior, and that they should only be removed from office through impeachment by the House of Representatives and a trial by the Senate. The inability of Congress or of the Executive, after judges have been appointed and confirmed, to affect their tenure has given to the federal judiciary an independence that has made it a bulwark of the liberty of the individual. On the other hand, this immunity has had some effect in making Congress grudge any betterment of the compensation to these great officers of the law. Congress has failed to recognize the increased cost of living as a reason for increasing judicial salaries, although this fact has furnished the ground for much other legislation. They have declined to conform the income of the judges to the dignity and station in life which they ought to maintain, and have kept them at so low a figure as to require from that class of lawyers who are likely to furnish the best candidates for judicial career a great pecuniary selfsacrifice in accepting appointment. I presume, therefore, that in spite of the efforts of the Bar and of men of affairs to increase judicial salaries, and in spite of the confession as to the cost of living in Washington that actual service in the government wrings from the advocates of a simple life who happen to get into office, we must continue to require from those who have the honor, the responsibility and the labor of the exercise of judicial functions under the federal government, mean living and high thinking, and we must endure the indignation that is justly stirred in us when widows and children of men, able and patriotic, who have served their country faithfully and have done enormous labor for two or three decades on the Bench, are left without sufficient means to live. Nothing but the life tenure of the federal judiciary, its independence and its power of usefulness have made it possible, with such inadequate salaries, to secure judges of a high average in learning, ability and character.

When judges were only agents of the king to do his work, it was logical that they should hold office at his pleasure. Now, when there is a recrudescence of the idea that the judge is a mere agent of the sovereign to enforce his views as the only standards of justice and right, we naturally recur to the theory that judges should hold their office at the will of the present sovereign, to wit, the controlling majority or minority of the electorate. The judicial recall is a case of atavism and is a retrogression to the same sort of tenure that existed in the time of James I, Charles I, Charles II and James II, until its abuses led to the act of settlement securing to judges a tenure during their good behavior. It is argued that there is no reason to object to a recall of judges that does not apply to judges elected for a term of years. The answer is that the conceded objections