CIHM
Microfiche
Series
(i\/lonographs)

ICIVIH

Collection de
microfiches
(monographies)

Canadian Instituta for Historical Microraproductioni / Institut Canadian da microraproductiont historiquaa

• !•

Technical and Bibliographic Notes / Notes technique et bibliographiques

The Institute has attempted to obtain the best original
copy available for filming. Features of this copy which
may be bibliographically unique, which may alter any of
the images in the reproduction, or which may
significantly change the usual method of filming are
checl(ed below.

r^ Colou. ed cavers /
' — ' Couvenure de couleur

I 1 Covers damaged /

' — ' Couverture endommagee

I I Covers restored and/or laminated /
— ' Couverture restaur^ et/ou pelliculee

I I Cover title misRing / Le litre de couvenure manque

I I Coloured maps / Cartes gtegraptiiques en couleur

I I Coloured ink (i.e. other than blue or black) /

Encre de couleur (i.e. autre que bleue ou noire)

I I Coloured plates and/or illustrations /
— Planches et/ou illustrations en couleur

I I Bound with other material /

Relie avec d'autres documents

I I Only edWori available /
' — I Seule edition disponible

I I Tigiit binding may cause shadows or distortion
along interior margin / La reliure serr^e peut
causer de I'ombre ou de la distorsion le long de
la marge int^rieure.

I I Blank leaves added during restorations r.nay a^Mar
' — ' within the text. Whenever possible, these have
been omitted from filming / II se peut que certaines
pages blanches ajout^es lors d'une restauration
apparaissent dans le texte, mais, kxsque cela etait
possible, ces pages noni pas ete filmSes.

L'Institut a microfilme le meilleur examplaire qu'il lui a
et6 possible de se procurer. Les details de cet exem-
plaire qui sont peut-Stre uniques du point de vue bibli-
ographique, qui peuvent modifier une image reproduite,
ou qui peuvent exiger une modifications dans la meth-
ode normale de filmage sont Indiques ci-dessous.

I I Coloured pages/ Pages de couleur
I I Pages c" 'maged / Pages endommagees

Pages restored and/or laminated /
Pages restaurees et/ou pelliculees

r~L Pages discoloured, stained or foxed /

^^ Pages decolorees, tachetSes ou piqu6es

I I Pages detached/ Pages detachSes

1^ Showthrough/ Transparence

Quality of print varies /
Qualite inegale de I'impression

I I Includes supplementary material /

Comprend du materiel supplementaire

I I Pages wholly or partially obscured by errata
— ' slips, tissues, etc., have been refilmed to
ensure the best possible image / Les pages
totalement ou partiellement obscurcies par un
feuillet d'errata, une pelure, etc., ont 6te filmees
a nouveau de fafon k obtenir la meilleure
image possible.

I I Opposing pages with varying colouration or
' — ' discolourations are filmed twice to ensure the
best possible image / Les pages s'opposant
ayant des colorations variables ou des decol-
orations sont filmees deux fois afin d'obtenir la
meilleur image possible.

I I Additional comments/

' — ' Commentaires suppl^mentaires:

This itwn it f ilmad it tht rtduction ratio chKkfd btlow/

Ce dacunitnl «t film* au uux dt rtduction indiqui ci^doious.

lOX 14X HX

12X

16X

2tX

Th* copy filmsd hara hu b«an rapreduead thank*
to tha ganaroiity el:

National Library of Canada

L'anamplaira filmA ful raproduil grica t la
gintroaiM da:

Bibliothaqua national* du Canada

Tha imagaa appaaring hara ara tha baat quality
pouibia conaidaring tha condition and lagibillty
o« tha original copy and in kaaping with tha
filming contract apaciticationa.

La* imaga* auivania* ont Ota raproduiia* avac la
plu* grand ioin. compt* tanu da I* condition *i
da la naitatt da I'anamplaira (ilmO, at »n
eonfermit* avac laa eenditiens du central da
fUmaga.

Onginal eopnt in priniad papar covar* ar* fllmad
baginning with tha from covar and anding on
tha laat papa with » priniad or illuatratad impraa-
»ion. or tha back covar whan appropriata. All
other original copies ara fllmad baginning on the
tint page with a printad or llluitratad impras-
sion. and anding on tha laat paga with a printad
or illuatraiad impraaaion.

Tha lait racordad frama on each microflcha
shall contain tha tymbol —^ (moaning "CON-
TINUED"), or tha aymbel V (meaning "END"),
whichavar appliea.

Mapa, platea, chana, ate, may ba fllmad at
different raduction ratio*. Tho*a too larga to be
antiraly included in ona axpoaura ara filmed
baginning in tha uppar laft hand cornar, laft to
right and top to bottom, as many framas aa
requirad. Tha following diagrama illustrate the
method:

Lea axamplairaa originaun dont la couvanura an
papiar aat imprimea sont filmaa tn commancant
par la pramiar plat at an tarminani sou par la
darniira page qui comporta una ampramia
d'Imprassion ou d'illuatration. soit par la second
plot, selon le caa. Toua lea autras axemplairas
originaux son. ">m*a an commancant par la
pramiOra paga i«ui eompona una amprainta
d'impraasion ou d'illu*tration at mn tarminant par
la dernidre peg* qui comporte una telle
ampreinta.

Un do* aymbole* *uivant« spparaitra *ur la
darnidre imaga da chaque microfieha. salon le
cos: le aymbole •^*ignifia "A SUIVRE". la
aymbole V aignifie "FIN".

Laa canaa. planchea. tableaux, ate. pauvant itra
film** d dea taux da reduction different*.
Lorsque le document est trop grand pour atra
raproduit an un *eul cliche, il est filma e partir
da Tangle supOriaur gaucha. da gaucha 1 droita.
at da haut an bas, »n pranant la nombra
d'images nOcessaira. Lea diagrammet auivants
IUu*treni le methede.

MKiocorr HKxuriON rcr chakt

lANSI Gnd ISO TEST CHART No. 2|

^ti^^

^ APPLIED IM/IGE Ini

' ^1

THE ADMINISTRATION
OF JUSTICE

ADDKESS BT

WILLIAM RENWICK

Of TwoirTo. CAHAiii. Binai thi iixniiu

KriTJ IU« AMUCIIIIU »T CaiCAOO.

Mil 2>. IM4

THE ADMINISTBATION OF JUSTICE.

William Renwick Riddell, of Tohonto, Canada.

The officers of your Association have paid me Oie very liieh
compliment of askinpf me to a.Mrcss you at this your annual meet-
ing; and I can think of no suhject o' more interest tlian that in
which wo are all concerned. The Administration of Justice And
believe me, I am fully conscious of the great honor you have thuB
conferred upon me, however unworthy may he its recipient

1 have no intention in what may be said to hold up our
methods, our Courts, as an eiatnple to te followed, much less to
criticise your methods, your Courts or the results you may attain
My remarks will he mostly of a general character; but if there
be found anywhere in them aught which will be helpful toward
the ends we all havf in common, I shall be glad.

It would seem tliat very shortly before historic times, man
lived m anarchy, vindicating his rights and avenging his wrongs
by his own strong right hand; when "wild in woods the noble
savage ran," he knew no law but his own desires, no master but
him who held him by force; everything was to him right iliat he
liked, wrong was what he disliked. The unutterable cruelty and
misery of those times may escape the poet, but never the sociologist
or statesman.

When man began to be gregarious and formed clan, and
sepU, It was soon recognliied that no community coul'" prosper
whose only rule was the ruie of might, where each was judge of
*iat he was entitled to and was permitted to acquire and keep
all he could. The desires of one crossing the desires of another
one must give way or be made to give way— the weaker slain
or disabled by the stronger, by so much weakened the community
and laid it the more open to conquest and destruction by other
communities— while even if matters were not pushed to that ex-
tremity, the rankling sense of injustice which corroded the heart
of him who had been forced to submit, was itself a deleterious
element. . ,

Accordingly it miiBt early have hcon di'termineil that con-
fliclintr intorcsts of two ihciiiIk'™ of 'lio same ootnmunity muit b*
detcmiineil liy an in(!i'|)<ii(lf nt triliunal. At first, no doubt, the
King or I'ricst— !lic words were long aynonymoui — the wite or
kenning Kl' r— wa» the ,I..dgc. For long the Judge receired
inspiration from the god, not unconiiiionly the c|>onymou( hero, in
each parti'ular case, "itory cane wan treated on its own merit*,"
and tlie ..ceision of tiie god v;o8 sought on the particular ca«c
witliout regard to general t.,]e. 'I'he litigants re<eiving the judg-
ment of the god. The (ireat Master, must needs be satisfied that
what was said to tlieni was as the (ireat Superior wished — He
could always say sic volo, sic jnbro. slat pro ratione voluniat.
Even when the dwtrin • of special liispirntion grew shaky, the
judge continued to adjudiciite on the particular case before him
almost if not quite irrespective of what he had decided in a previous
case and with little or no thou),'ht of how he might decide in *
subsequent, principle being far in the future.

Nor did this wholly cease to he the case when record or tra-
dition gathered the "themistes" which had been pronounced, and *
fauiily or order of functionaries, priests— call' them what you
will— were the guardians of past judgments and considered aa en-
trusted witli knowledge of the will of the gods. Something like
principle did indeed creep in— something approaching a general
rule was gradually appreciated, but still there was not law in
our modem sense.

That was practically the condition of the Indian when Amer-

ice was discovered; (it is said "the ludians had few laws but they
were well violated"); and it is the condition of many inbcs of
so-called savages today. It is a great mistake to suppose that
there is more litigation in Chicago or in Toronto in proportion
to population than there was among the Iroquois or 'i among the
wandering tribes of the desert. The difference is that In these,
every law suit is a thing by itself, in those every law suit is con-
nected with thousands of others which have preceded it. There is
no satisfactory ividenc3 of the advantage of one method over the
other in doing substantial justice.

In ancient Ath#na_p_rina»pJ«'did not quite make its way, did

. , t ,n „.„„, ,.„,,„.. l,.«-i,. «„.at n,.™„r.. whut .. wi,.,„. J
IK' 1 * .ns law, »n<l |„, ,l,v|,|,.,| aifunlinffly.

tlH full tLrnry of l„w „« „ primipl,, „, a ,o||,...tion of binding

i:t:;i'. '"""■"' "' ""■ ""*- •-•■- ^' »-''' -- .« ::';

Our T,.ut„ni,. nno..tor. I„„l their own l„w, cruel, JlloKi.-al

n ono , ."• ■" '''•*■'•"''''"•"• «- ''-V in^'i-et and cdu ation
prone (o look u|K,n ,t with not „,u.h le-s pride than they.

The history of Knglih civil luw for over e ght centuries ha.
b..en .„ «roat ,„e„M,re „ .„.,tory of conflict hetw.'n the o i™

of he leuton „nd the polished law of the Kenan; the ,„or!
-v.nz..l law, with but f, ,v »ot.back,, ha- be..n all th^ whil «
-Mnrtng a sreater and Rreater aaeendancy. Now in Kngland and in
ntar,o, when. ,1,.. rule, of Kquity and of Common Law eonfliJt

lieally all derived from the law of Home.

From the earliest ti„,es, the tribunal to decide right, might
be of a temporary character an,i pro hac dee. or it might be of .
permanent or quasi-pemmnent natur.. In tl.e fom.er case how-
over d,sgu,sed it was in substance a board of arbitration; 'in the
lat er, by whatever name it might be known, it wa, a court. The
Court has grown upon the Board as a means of settling dispute,
and I, now triumphant; and whenever an arbitration i, pref^rd
o a Court dee.s.on it is a disgrace either to the substantive aw
and therefore to the legislature, or to the practice, and theXe
m most .nstances to the-Courts-in eve-y such instance tlTiZ
h.- proved a failure nnd the Courts incompetent.

In international disputes indeed the progress just spoken of
does not appear. When two nations do not determiie thdr right,
by the cannon and bayonet, by ,,„unds and blood and death by
the ehmmation of their bravest and strongest, "wet eyes of w L,
broken old mothers and the wh„.e dkrk futcheiy »;*«.t a i""

Ilicy liavc lii^n'tndirc in nxwt i as<ii fominl a temporary Uoard and
left it to tlio Ronrd to decide without any principle but "llct ill
you eiin, give up wlmt you numl." Tuo often it ii fouuil thit the
ape and tiger still survive in that jungle

Within the nation, we of modern timet have deeiilc<l that our
rijjhti must be determined on principle— on principle that c«n b*
certainly known, for they con lie expretsed in writing.

In what I am now about to say, I speak in the main of civil
litigation. I shall later on s|icak oi criminal justice specially.

The function of the Court is to determine rights according
to principle, tliot is, according to law; and from one point of view,
in so far as it docs that, in so far is it a success and no furtlier.

It is not enough that the Court shall give litigants their right*
uci'ording to law. The Court was invented to prevent strife by
determination of right by and through a just and impartial
referee; and unless it is twlievcd that the Court is just and im-
partial, it fails in a most important part of iti object and loaea
much of its value.

Moreover such a course should be pursued that those
who have disputes shall le desirous of having them decided on
principle; that is, the superiority of the professional agent of
justice, the Court, should be manifest over tlio non-profetaional,
the Board of Arbitration. The medical profession should feel no
more regret at the prevalence of resort to the quack than the legal
profession at prevalence of resort to arbitration.

The relative importance of two great ends of the admin-
istration of justice, that is, determinatioi. of right according to
principle, and satisfying the public that justice is properly admin-
istered, may depend upon circumstances. In a judgment of my
own it was said: "all magistrates should remember that while the
most important thing for them is to be impartial and right, it ii
not much less important that litigan's and the public generally
should believe in their impartiality a.id rectitude," Bei t. Mc-
Arthur (1906), 8 0. W. H. 694. Nay, I am not at all sure that
it is not sometimes more important that the litigants and the
community shall think justice is being done than that the de-
..aieieq jshaW-Jxf/itriclly/ip'.aceoijjAith precedent. Not many yean

»K", m conv<.r8..hon will, o rdirwl Jui«F<, of the Supremo Court
of the ir„,tod Sint,*, I v,.nlur«l to cx|,r,«. the opinion that no
inrni «oul,l huv.. ,„,tm..,| jf t«„.tl,ir,N „f ||„. ,„^,, j„ „,„t ...^^

'»'' '"■''" '''••■' ' 'I I'" «">■; !"■ ..n»»vr«l, -If vn„ l,.,,v« „ut

the ™n«t.t»tio«,.l r«„., I ,1,„„1.1 „Kr.T, nnd i .„! | ,„i„), ,.„«

miKlit incn'.i,L. the ixrcentn^-e consich.nihly." Th.. ni„.|«tv „f one
not ilioronKhl.v ,|mmil,.,| «ill, ,l„. Cnn.tiluti.m, of k' VnU.i
SmUs an,] of th, .St«t„ of th,. t'nion, on,, who live. ,„ countrr
without ., C.n.titution (an,l lik..» it), prev,.nt,.,l nu- .en .peak-
"IB to an authority on the.,., from ,p.e»tionins <"V frien,!'. ,.,ee|,-
ti"n I v,.ntur,., however, here to suhioit to vo.i the <.on»i,l,.ration
-i...at harm woui.l have {...en ,lone if Ilaniel W.lmter iia.l fail,.,!
in the Dartmouth ('oll,.Ke ease? Your law wmil.l have km ,lif-

ferent, hut wouhl it have h, vors,.? h v.ur law he!t4..r for

the |».ople at larRt^-an,! it i.- the ,K.opl,. it must ulwav. have in
ll« eare-lhan if i» were as in Kn^'hin.! an.l Ontario? ' Are ..yen
jour rorporatums riuR the sittings of ConRn-ss an,l rx-Rislaturf
an.v more eomf.)r. .„e than oure or those in Kn^laml ? .An,i after
all, has th,. em.et lH.en niueh more than to ohiig,. l,.Ki»latur,.a to
introdu,.,. into private charters a clause reserving the power to
reimil or „ll,.r them-just as it i .i,l (hat practically the whole
clfct of the Stutut,. of Uses w. o intro.lucc live wor.ls into
conveyanees?

ni,l the decisions, or cither of them, on the constitutionality
of taxation of incomes do any good? an,l would any linrm have
beK>n done if they had bc.t.n the otlier way? No constitution.!
amondmem would have k*n necessary, hut what of it? Would
any one liave been injured if he wore validly taxed under the
constitution as it st.jod, rather than under an amendment? And
do,.« It feel any more ph.asant or hurt any less l„ pay an income
tax than if it had been levi,.,| under the ,locument of the Fathers?
Did the "Drci Scott" division settle anything? Perhaps
It hastened an inevitable conflict, but did it do more? Was the
conflict not inevitable under any decision, and was it rendered
less intense, costly, bloody, terrible by the decision actually
given ? ■'

Most hesitatingly and meekly (as bcomes an outsider* I
venture to suggest to you that all the decisions of the Supreme

Court are overborne in importanee by the one deeision of the
Senate of tlie tlnitcd States wlien that body refused to dismiM
Andrew Johnson; for in all human probability there will never
be anotlier inipeaehment of a I'residcnt of the United States for
the reason that lie does not agree with the majority of the people
or of Congress; the President is (S firmly seated on his throne
and is as truly a monarch for the term for which- he is elected
as any king or emperor in Christendom. Benjamin Robbina
Curtis' success before that tribunal was of vastly more significance
and of vastly greater importance to the United States and iti
people than would have been success in the Supreme Court when
he deli .>red the superb dissenting judgment which will continue
to be the greatest glory of his name so long as Courts endure
and lawyers reason.

Does not the decision of the New York Court of Impeach-
ment that a Governor of that State, their two year King, must
behave himself according to their views of honesty and propriety
before as well as after his inauguration, overtop in importance
the decision of the unconstitutionality of employers' liability legis-
lation? Did this do more than call for an amendment, inevitable
if the people wanted it? And what possible harm could have
been done had the decision been the other way?

It is the regular and conventional thing to speak of the great
principles of the common law as something sacrosanct ; to say that
the common law is the perfection of human reason. So far as
these principles are identical with enlightened reason, with the
teachings of the moral law, there can be no complaint. But how
do they differ from Justinian's triad? Praecepta juris sunt haec.
Honcste viverc, a//crwm non laedere, suum cuique tribuere. The
maxims of law are those, to live honorably, to injure no one, to
give every one his due. Any principles outside of these, of what
avail are they? And wliat harm if the rules laid down by the
Courts had been different? The laws of real estate at the com-
mon law no civilized nation would now endure; in your country
and in mine, the Legislature had to intervene so to change them
as to make them consistent with common sense. What advantage
is it that (or if) the laws of distress by landlord for rent be
retninod? AVlio woidd now lay down the "Rule in Shelley's Case?"

nnthin t ""! '""''•""»"'»' principles of honesty, therfC
notlnng either good or bad in law but thinking „,ake; itZ-

ZLcZ "•""'^"''r,"/"^ "•« -S^' "f the la." Braeton l":
leton Coke, ,8 as well founded as admiration of the middle a«
ehoolmen and no more so. Extraordinary ability, profound

learning eonsummate subtlety, oharaeteri^e lx,th elas,esf but no

one wou d be much the worse if they had deyoted their attVntion
o heraldo. or the tracing of pedigrees; or if in eight o,t r en

cases they found the law diau,etrieally opposite to that tKy did

tTfit^d ^1 f^ f '".P'^P'" "' '° ^' determined aceording
fixed rules la,d down e.ther by binding deeision or by legisla

C urt" as" '■ ^"^ ''°"' """' ""'^'"'"'^ "- conseryatiyef he
to elint .."""' ",":" *" ^'■''"«'= "■« '"- "« it finds it than
to ehminate the word "nof from the commandmenta; the S
pie are en .tied „ their law as it stands and must submit tHt
whether they hke it or not. We probably all agree Lt
.peakmg generally) the very first consideration underly ng Tur
ounding and going beyond all others, is that justiee slfll be
don according to the existing law. If the people do not like
the law let them change it, the Court cannot change it for them

nenf K I" • """ '"' ^™'* ''"'"''' ^ '"""^^^J ^ **» judg-
ment by the opinions of litigants or of any other person whoms!-

rin'„„?™rf °''' ■"*{ "'"' °"™ "'" ^ '^'^^ ">»' judgments
wm not ony be unpopular, but they may eyen be rr..pug,^t to
the sense justice of the community; and yet the CouTmu t
give precisely these judgments.

But that does not imply that the Court should so act as
to g.ye rise to the impression among the people that it is wholly
indifferent to a just public sentiment. Lord Mansfield could say
I wish popularity," and he showed himself a good public seir-
ant when he said so. if a better when he added, "but it i, that
popularity which follows, not that which is run after, it is h'

popularity which soonor or later never fails to do justice to
tlic pursuit of nohle ends hv nohle means. • * • 'fjgo hoc
animo semper fui. ut invidiam lirtutc partam, gloriam, non tn-
viiliam pnlarem.' " (I have always been of this opinion— that
unpopularity gained by doing one's duty is a glory not a dis-
grace.)

Now justice is not administered in the abstract, it is
justice to the litigant in the particular case that must be sought;
and the one essential of a Court is that the law is administered
in the particular cases brought before it.

.\ story is told of an importer who had been required to pay
$800 ns duty upon goods which he had brought in. He claimed
that no duty was payable, and paid under protest. He brought
his action which made its way by slow degrees to the Supreme
Court. In that Court all the Judges gave learned opinions, but
none said whether the unfortunate merchant was to have his
money returned, and the Court was shocked to hear a troubled
voice, "Do I get my $800?" Sc non i vero, i ben irovato.

The Court is not (at least in my country) the master of the
people, but their servant, supported by them for tlieir own use
and in their service; t)w judge is paid by the people to do their
work, and just as soon as the Court is not worth, directly or in-
directly, what it costs, it should he abolished — directly in adju-
dicating upon the rights of litigants, indirectly in preventing civil
wrongs, turmoil, assaults, thefts, trespasses, in the time-honored
phrase "maintaining the King's peace."

A Court docs not exist for itself; it is not an end in itself.
.\ Court is an evil and the less it is called into play the better
for the community unless the evils arising from this course will
be greater than those arising from the more frequent exercise
of its functions.

When Congress was proposing to give American coasting
vessels a privilege in the Panama Canal not granted to other
ships, and Britain made a protest, basing her claims upon treaty
(I am not going to discuss the rights and the wrongs of the
matter, the American people are guardians of their own honor
and need no advice or opinion from me or any other non-Amer-

ope .„erc will be n., n«.e.ity, 1 i.ope'tha, ,he na. ^n ^^'J
le the nmtter without litigatio,,, then: i« no saying what heart
bnrnmg, an,l ,l,sco„tent« ,„„y arise over the deciron wo ^n'
Canada still re„,e„,her the Alaska Boundary AwarT and no o^"
- a r,g t to ex-peet a repetition of the e/traoTdt^r; good f"
une whah followed the Fishery Award at The Hagul f^ other

'" ' "■''™ ™''' P-'-V ^■l"i' 1 -bstantial victory. A s ttlemen

be ueen the parties fhen.selves is infinitely to te preferred to .

mv.need; he was an American and consequently thought O.at
there is nothing like a court." ^

The court was made for man, not man for the court No
consHlerations of dignity, tradition, espHt iu ,,.,, Zui eve
induce a judge o forget that he is a servant of the peo le
paid by the people to do the people's worlc-if he fail to apprt:
eiate this elementary truth and to act upon it he is ant To 1^
an unfaithful servant, a dishonest recipi'ent of wag s p' i %^
work which he fails to do. Fortunately this class of judge is
rare; here is no "1 Won't Work" associations for tliem ^

The Court does not exist for the e:<hibition of the personal
dignity of the judge. Personal dignity in a judge Ly iTa
valuable asset to the community which he serves it maTLlp to
preserve decorum and thereby advance public Liness' bu? U
may be a detriment ,f of a certain kind. If the back be so
Iff that u cannot bend itself to work, and if the business of
the Court i„„.st be delayed because the judicial dignity craves
twenty-three hours rest of the twenty-four, the public can very
well manage to' get along without it. And the' dignitv whjh

Court-rrT. ^fj'^'^^ ^- «>'SWs and "coltompts of
Court that .t has little time for anything else, is bettor placed
e ewhere than on the bench. Ut a judge do his w rk S

S;o'';:rKt::,r "^•■^' ^"" "" ^^^-"^ -^^ «— "^ ^

Tradition is sometimes of much value: but it is tradition
of what ,s good ai^d useful; a traditional method of doiLg ZT

ness is cooTenient and not infrequently is the best srailable
method ; but a tradition, if there be one, of dilatoriness or in-
efficiency were better forgotten. What ia old is not necessarily
good, nor what is new, necessarily wrong.

I'erliaps tlie most frequent complaint made anywhere of the
administration of the law, is its delay — the law's delay. One of
the promises wrung seven centuries ago from a reluctant king by
a resolute aristocracy, was NuUi vendcmvs, nulH negabimua aut
differetnvs rectum aut jusiiciam; to none will we sell, to none
will we deny or delay right or justice. He who delays justice,
denies it — a truth profound though it lies on the very surface,
patent and obvious, so patent and obvious indeed that it is often
overlooked.

A very short time ago I read an able article by an eminent
judge of one of the United States, in which he said that delay
if not too long is a good thing in litigation. I then absolutely
repudiated that doctrine, as I do now; I assert most confi-
dently that every unnecessary delay is wrong if not asked for by
the parties concerned. The ideal method of determining righta
would be for the parties when diflRculties arose, at once to lay
the farts before a judge and have an Immediate decision. We in
Ontario have that method in substance where there are no facta
in dispute but the only question is the interpretation of a writ-
ten document whether will or contract. This cannot always be
done, there are generally in dispute facts upon which the rights
depend ; and these facts must be determined in some way. The
very speediest method of bringing them to a determine 'ion con-
sistent with thorough investigation is the best; and a litigant
has a legitimate ground of complaint if there is a day'i delay
beyond the time really necessary.

Delay in bringing a case to trial may be due to the people
themselves; their representatives may not have constituted a Buf-
fieient number of courts, elected or appointed a sufficient number
of judges; or they may have clogged the courts by an intricate
and dilatory practice. In that case the people cannot complain;
they have the courts and the practice they deserve. If they want
fomething better, let them do sgrnething better. It is idle

wliining about an evil ,.|,uh i. due to one.', self «n,l „n»-. ™

hTat::;" "''''-- ""^— « - "-" ^'^
have th: Sr;iir,:: rs:/rir^" r <"""

are derelict in their dut'y if a 0":;:"^ ^"n„ tZ'*'
iiglitly to be made. I have no hii!)! ouininn „f .1 „ « ■ j ,

rn'rrr';-;^ '^-^ ^^^-"^ "^'- -- »

men as those of the present time, and "there is a ereat ded of
human nature in man;" but any institution that Imslod thf

erlon ti T "^^' '""' ^' '^' non-reverent gen-

eration. Still everything must give wav to fh,. n„i,i,- j

reven-nee for antiquity included. ^ " ^'""'•

Speaking generally, if either litigant eannot compel the trial

practice, no skinnisliing of lawyers, should prev nt the t^Ul of I
case w.thin the time 1 have mentioned.

It is a matter of the most profound astonishment to those

States of the Union submit: our people would not stan.l it for !
year, there would be such an outcry'in the pi^s 'n"^ "J™
hat no government would refuse to bring in, no legis IZ

fuse to pass, amending and corrective legislation
ifow is a case to be tried?

There may be constitutional provisions which must be
obeyed or the legislature may prescribe. In Ontario theit a^
very few cases in wh cli a jury is of ri»hf ■ ;„ .
the presiding judge is ..J J Z IX' m^aTt;"?!::
with or without a jury as scms beat. At Toronto ^n To ?i
the lowest court, the Division Court, not oL p^t^t we"' tri^

wilh n jiirv,' in tlu' next lii;,'liiT, llic ('diinty Court, IH';; »'cri' ti-iod

with n jurv, iinil in (lie Siipicnic CiHiit, 211'.;. h st ol' tliiw

I'liBi's the jury wtTP not iillowptl to find a general vcrdiet but were
conlincd to answering certain questions of fact suliniitted to tliem
l)V tlio judge, he reserving everjtliing else to himself. In iioro than
thirty years' ;'Xi)erienee I have known of only two appeal? against
the action of a trial judge in striking out a jury notice — loth un-
successful.

The saying of time — and wind — is enormous. The oi>ening
and closing speeches of eouni.cl to the jury and the charge of the
judge are done away; in argument there are very few judges who
care to he addressed like a puhlic meeting and quite as few who
are influenced hy mere oratory - all indeed must ex officio be
patient with the tedious and suffer fools gladly. Vehement
assertion, gross personal attacks on witnesses or parties, in-
vective, appeal to the lower part of our nature, are all at
a dincount; and in most cases justice is lietter attained, righti
according to law are better ensured. Moreover during the course
of a trial a very great deal of time is not imcommonly wasted
in petty objections to evidence, in dwelling upon minor and al-
most irrelevant matters which may influence the jury, wearisome
cross-examination and reiteration, etc., all of whii.i. ^re mini-
mised before a judge.

But it is never to be forgotten that the courts belong to the
people, and ihc wishes — even the prejudices — of the people must
be borne in mind. If for any reason the body of the people were
to come to the opinion that a judge trial was not a just trial,
justice won'l not be satisfactorily administered if that form of
trial were adopted. There I leave the matter.

Very often during the course of a trial, facts will come to
light which give a new turn to tlie case; some courts are so ham-
pered, or so hamper themselves, that they cannot go outside of

•The official report of the Inspector of Division Courts for 1913,
.just to hand, shows tiiat in 1913 the total number of suits entered in
these Courts in the whole Province was 6^.675, and the number of
juries called for 117, a little less than one-fifth of one per cent. The
whole amount claimed in the suits broufjht was about two and a half
millions; the cost of tho juries averaged a few cents over $10.

1,1

me i)ioa(linj,'a, nml gnat injustco may result Wl.pnnv.., k
any l.ide-bound practice « c„,.rt cannot do u.iee TlL /
l.oca,.e a lawyer ha., n.ade a „.i„ake, there' fa „r „ t I

elementary duty „t the court. ,n the ideal state, every llrt

I-aw ,s not a game where the smartest man win, it i, ,

'ay. I^t me not be nii.,understood. I nitv tl„. I,iwv„; ,

.lit very lew fields of knowledge which mav nnt K„ „f i
in enlarging the mind and unders Inding pin d ™°i'^''
in the older authors will do no g at hlr^i if 11° f^, r"^""^
to fill the mind with antique viewT „ tl™ d Z . , " ""'

(liniinicli the signiliianco of the fact that tlie lawjer is a busineu
irmn, hirt'il to do liis ilii'iit's businoss.

A Holl pdiicntid Bar is a prcat ilpsideratum ; a 8clf-res[)ect-
ing liar i» of gnat value— a liar. wluLh never forgetting the rights
of the elient, does not think it ineonsistent with duty to assist
justice hv eoiirtes.v to ojiponents, by civility to witnesses and
others, by respect to the ec.urt. by a due regard to the exigenei.^s
of public business. The noisy showy barrister, who phus to tlie
gallery, seeks (o iru|iress his clii'nt or the populace with his abil-
ity nnil inip(jvlance by discourtesy to others, insr)lence (more or
less veiled) to (lu; court, inteririinabli' oratory to the jury, i- an
evil, a public nuisance. That class will always be met with where
the people wont it. Xo one can expect total self-abnegation and
disregard of his own interests even in a coun.sel ; ami "for peo-
ple who like that sort of thing, that is the sort of thing tliev
like.

What about appeals?

The ideal method would be for tiie losing party to take all
the evidence, pai>ers, etc., in the case, at once before the appel-
late tribunal, and, both parties being heard, the case to be dis-
posed of without delay. The nearer the practice is assimilated
to that ideal system the better, other things being e(iual. Tlie
Appellate Court should, if required by the amount of business,
lie continuously in session witli only such intervals as are neces-
sary to consider the cases presented. The material before the
Appellate Court should be all the material in the trial court;
tills should be got before the Appellate Court at the earliest pos-
sible moment and with the least possible expense; the proceedings
should be as little technical and complicated as possible, and in
this court as elsewhere ju»ti<e delayed is justice denied. Of
course there will often be circumstances causing delay, there may
bo facts alleged or statements made at or after the trial which
must be investigated ; people will die and even the counter-irritant
of a law suit will not always keep them alive. Leaving aside spe-
cial cireumstances and speaking generally, if a losing litigant
cannot have his appeal heard and disposed of in three months from
trial there is something wrong. In a certain country, a Chief

Just'ce ileolined to tit in an appeal because judjfment might not be
given before the expiration of hi» term, more than three monthi
distant ; tliat fact and the circumstance tliat it excited no aston-
ishment vill furnish their own commentary.

Moreover there arc often trifling errors (generally against
technical rules) at the trial; even judges are not exempt from
the imperfections of humanity. An Appellate Court should pay
no attention to such defects unless some injustice results. Tiiere
may he some fact left unproved or Inter discovi-reii. Why should
not the Appellate Court allow the fact to he proved before itself?
What is the sense in sending a case down for a new trial with all
its risks, expense and trouble?

'I'liere is one failing witi: which courts of appeal are very fre-
quently afflicted : they are apt to forget that the main obj«t of
litigation is the determination of the rights of the litigants be-
fore them, and to imagine that what they are for is to write
dissertations on the law. To i. lawyer, there is nc stronger tempta-
tion than to follow up a point suggested in a case and to exhaust
the law on such point, although it is not really material in the
case under consideration. There can be no objection to that
course, but it should iiot he followed so as to delay a decision
unduly and thereby deprive the litigant of his right to speedy
jii»tice.t What is important is, "Uo I get my $800?"

tl i)rudiice to you the list of our Appellate Division,
the Court of Appeals in Ontario, for tlie May, 1914, sittings.

There arc eighty-one ca-es on the list. The judgments from
which these appeals are taken were delivered as follows:

Before January 1, 1914 n

In .Tanuary, 1914 ,.

In February, 1914 j.

In "Search, 1914 44

In April, 1914 11

In all g.

Of those before Januarv 1, 1914, two are cases of a Municipal
Street Railway which is being reorganized, and all parties desire
time to complete the financial arrangements. The parties have

1(1

had •cviml opportunitici to arffiic the appc-nls if Ihoy bo dwire,
and the caaci arc kept ou the liHt ex abundattii cauMa for foar the
arrangement may fall U.rough. Three otheri have stoo<l by ar-
rangement of counnel ; and one to enable the appi'llanl to proeure
a preliminary onler from a county court judge, per>otm ,le»ifnata
under the statute. All of there have had at least one chance to be
argued. The tevonlh is a case tui gencru. \ wife |g ,u|ng !,„,
huslrand and conducting her own case. Two motions have been
made by the defendant to dismiss the appeal for want of proaccu-
tion, hut the court has extended the time. Much of the evidence at
the trial is said to bo irrelevant, and the plaintiff is linding diffi-
culty in extracting what is material. She scorns professional help
and is perhaps looking for a grievance. At all events we Ihuugbt
we should not cut her out of an appeal.

Of the five decided in January, 1!)14, two were delnved by
illness of counsel, and counsel on the other side agreed to "let the
eases stand; two by reason of omission of stenogi nphers to get out
evidence in time; and in the fifth, counsel mislaid his papers and
the other side consented to delay. All these have liad at least one
chance.

We do not allow cases to stand from month to month without
inquiry. From time to time all cases looking stale are called on
to be spoken to; and if the reporters are found derelict tliey arc
brought to time. If the parties are not really intending to go on
with the appeal promptly, it is dismissed.

During the May sittings all the appeals from judgments de-
livered in .January, 1914, have been disposed of; of those before
Januiiry, the two about the Street Railway still stand ; one other
will be disposed of June 1, another June 5 ; all others have been
heard.

There have been added to the May list 3 cases in which judg-
ment was given in March.
We have heard

Of those in February, 11 leaving 3
Of those in March, 35 leaving 12
Of those in April, 9 leaving 2
In addition to those fully heard, two involving disputes

hitwccn till- Muniiipniity ami privato indiviilualt hive been beard
in part and ntnml for a proponed «;ttliiiicnt.
And wimt Inw Hliould be adniininterwl ?
M(wt of dm KnKli«li-»|HiikinK |Kopl(« In c llio tradition of the
fundiinicntiil dJHtinrlioii of Ijiw iind Ivpiitv. TIiIh riiHiinplion i»
hifrniiiid nnd hionc from ou.- luurstorn Imvin),' ii liiw of their own of
which thiv HIT.. inonlinuti'l> and stuhlHirnly prou.l and tonacioni.
"NnUmtis lrge.1 Angliae. miilare" «aid the barons on a fnuniorable
orcnfion; nnd nolumiis hgm Angliiie mulare tlicy continuwl to
think (»ome indeed eonsider that the Imrona have not ceased to
be intensely conservative even at the prenent day). The jfrosa
and palp«l)le injustice done by these venerated legri Angliat
became intolerable, and after legal fiction had failed to permit
justice to be done in the law courts, Equity was invented.
"Equity mitigated the rigor of the common law" is the conven-
tional and euphemistic way of putting it; hut this clooks the ia-
famies which the common law enjoin.d or pennitted. 'I'he Itiw-
yer was not till comparatively late entrusted with this new
weapon; the churchman was the early chancellor. But it got at
Ingth into the hands of lawyers and became as technical and
as formal as the common law whofo rigor it was to alleviate.
These two systems of law ran along side by side, administered
by different courts for centuries, and the English lawyer came to
think that this division subsisted in the very nature of things.

It is hard to dislodge inveterate and traditional opinion!
even when they are wholly without solid foundation. The colo-
nial lawyers raised on English pncedents as pabulum, absorbed
the English idea and it stuck. I have before me as I write a
letter on the subject of the Courts of Law of Upper Canada ad-
dressed to the Attorney General and Solicitor General in 1847.
This was written by a member of our bar of the highest standing,
one who «as afterwards Chancellor and then Chief .Tusticc of
Ontario. Addressing the "Chief law officers of the Crown for
ITppcr Canada upon a subject interesting alike to the profession
and to the country— the due administration of justice," and at a
"time when changes iinocar to he contemplated in some of our
ConrtF of Justice," ,ic-s that "law and equity ought to be

con.i.lereU «. di.linct ..,t..,n.. .„,! ,h.t the, are « con.idered
.n.l kep apart in K, ,il„n.l, i,, porh.p., „ne of the be.t pro.i.ion.
of our ton.t.tutmn." If,, approve, the .tate.i.ent of LorJ Ehlon
a. to the mwMity „f that teparation of Court, of l^w u>,\
Kquity which ... mainly contribute, to the tomplcte anj effectual
«.linin,.tration of jn«ti™ to an extent and in a degree ,uch a.
are unknown and n.u.l 1« ever unknown where thai .epar.tion i,
not effectually made and „h,efved." In Upper Canatla we had
got along without a "ourt of K.|uily lili 1837, and there wa. in
1S4, talk of gettrng rid of it. Mr. Spragge (,|,e writer .poken
of) . eprwta e, ,ueh a ,our.e, .li.pute. the statement of th.«c who

'"■' Z'u , 'iT/'" *'"""" " *^''""' "'" f'o'-rt "f Chancery
WH. estabh.hcd," for, he .ay,, "the .„,nmon law wa. never n.eant
nor I. ,t calculated by it,elf to form the juri.prudence of a coun-
try. Without being tempered by equity law, it would often work
injustice, and in it. actual operation in thi. country the applica-
lion of lU rule, did work injustice until a language began to l
used m our Court of King'e Bench which would have «,unded
B rangely in the ear of a common lawyer in England." He think,
that without separate courU "the law • « . would degenerate
into an uncertain hybrid system neither common law nor equity
but an incongruous compound of both, so that no man could tell
what h,s rights are." "We mu.t • • • have English law, a
combmed system of law and equity, or we must abrogate the
Engl.8h law, throw our whole system of law to the winds and
adopt the c-vil law. But were so mad a scheme proposed me-
thinks Upper Canada would answer as with one voice nolumut
yg,s Angha, mutare." This reasoning was adopted, and a. at
the Parliament of Merlon so at our Canadian Parliament "Omne,
comites et barones una voce respondentni quod nolunt leges in-
gliae muiare quas hucusque usiiatae sunt et approbatae.

If any lawyer were asked to lay down a code of laws for a
new community he would be thought insane if he laid down two
codes, one of laws to govern the people and another, to modify
and to that extent to nullify the f! .t; and yet because from his-
toncal reason, that system grew up in England, many lawyer,
thought it a necessary system. Even in 1847, some could not

conceive o( tlio IcgUliturc cdinbining the two iyitemi into one, u<l
dirwting the fuwd .v.lcm to Ik- upplie.l in ill courti. And tn
we liail law anil oiuilv for over thirty yean longer. In 1S81
when a •iiiiplc proiuion wai niaili^ that where the rulea of law
differ from the ruica of «|uity, the rulea of efjuity nhall prevail,
and this waa appliid to all court*, many were the mournful
lamer .« for the <leparted glory of our juriiprudence. Rarhel
we..ping for her ihildren eould be ai eaiily comforted aa the
"e<iuity lawyer" when he found that a proceeding to foreeloae
a mortgage could Iw taken hy writ in the Queen'i Bench Divi-
Bion, or the purely common lawyer when he found that the be-
loved principlci of llie cr.irimon law were ruthlcialy aubdued to
the alien rules of eiiuity. I have myself heard a practitioner, atill
living, curse what he i lUd the •'confueion" of law and equity;
but time is the great assuager of grief nn.l the change haa vindi-
cated itaclf. No one now would think of going back to tlic old
•ystem.

This fusion of law and equity haa had lomcthing to do
with the gradual decay of the jury system.

A word or two as to the administration of criminal justice.
The abominable cruelty of the Knglisf, law, whether the com-
mon law as interpreted in curly times by the high placed judge
or made in later times by th high phiced member of parlia-
ment for the gove-nance of the lower classes in either case (.
mandate in the vast majority of instances of the superior to the
inferior— revolted the humane. Rules were .xtended or invented
to save the shedding of blood for petty nr even serious offenses.
The law was bnital, and its brutality was mitigated or evaded
by the ingenuity of less blood-thirsty judges. Trifling defects
errors of form, omissions to prove immaterial allegations, mat-
ters of no importance whatever were laid hold of to prevent
a judicial murder. Consequently the result of a prosecu'ion be
came very much a matter of chance; criminals looked jpon a
verdict of guilty as a bit of bad luck. A chaplain of i-Tewgate
of the time has left an awful account of the view taken by prii-
oners of trials, an account which haunU the reader aa a horror
for years.

Accordingly, the proiecution of w aUeged offender became

a kind of sport. The prisoner had so much of a start, so many
proceedings were forbidden to liis pursuers, he might double and
dodge, and in the end, in spite of facts wholly proved, might
escape. It was a kind of glorified fox hunt, the quarry having
a much greater chance than a fox.

This was about tlie condition of the law in England when
the United States branched off and when Upper Canada was
given legislative independence. Both took the law with them.
The rights of the accused, the protection of the accused, gave
the watchword; and some courts have not forgotten it yet. In
not a few courts the prisoner has so many and so sacred rights
that no one else has any, the State included. Instead of a crim-
inal trial being a solemn inquiry by the State into a crime al-
leged to have been committed against it, a criminal trial is apt
to degenerate into a game, a play, a spectacle for the curious and
a subject for lurid newspaper writing. That provision made by
the State for its own protection that no one shall be punished unless
and until convicted by a competent court is made a cloak to shelter
those who have undoubtedly committed crime; the pettiest of
all petty technicalities are invoked as though they were the most
profound of principles, on the violation of which the heavens
should fall. Time seems not to be considered of importance in
many jurisdictions; and in one the members of the bar say openly
that a conviction for murder is but the beginning of the criminal
trial.

Solemnity and formality in a criminal trial have great in-
fluence upon the criminal classes. Severe punishment has not
at all the same deterrent effect as certain and speedy punish-
ment. Many a degenerate or wilfully wicked person would be will-
ing to be made the central feature of an eight days' or eight weeks'
show with a good chance of evading punishment.

Is all this good for the State?

Once again, if the people really want that sort of thing they
must have it; but do the people really want it? Of co.urse the
criminal claeses, the potential criminal, the lawyer who" is p/ud
by the length of time lie can make a case last or who seeks glory
from teclmical ingenuity or florid rhetoric, tlie yellow and near

yellow paptT and its rcailers, all are in favor of it. But the man
wlio has to pay for it, the soher-mindcd citizen who takes an in-
terest and a pride in liis eoimtry, who is jealous of her honor
and reputation— what of him? and is he not to be considered?

If a criminal trial is a game, well and good. The fox hunter
who was expostulated with on the cruelty of his sport said, "The
men like it, the horses like it, and nobody can be certain that the
fox does not like it." But even fox-hunters pay for their game
out of their own pocket, and if a ta^a docs get away now and
then, there is no great harm. We in Canada are too poor to be
willing to pay for sucli a sport and too busy to be willing to waste
weeks on an investigation for which days or even hours are am-
ple. \Vc think that except in very grave offenses, sucli as mur-
der and the like, an accused should have the option to be tried
by a judge and witliout delay, instead of waiting for a jury sit-
tings. If one charged with crime be desirous of trial by jury
we allow him a copy of the jury panel in sufScient time to" make
inquiries as to any objection to the jurymen, and when a trial
is set we insist on it being proceeded with, with due diligence
and reasonable speed. The first time I met your ex-president,
Mr. Taft, he s))oke of the intolerable delay in criminal trials in
the United Stales. I told him that a short time before, I had gone
to a Canadian city to hold the Assizes on the same day that a few
hours further along the same line of rail but across the inter-
national boundary, a judge began to get his jury in a murder
ease; that I had tried four criminal cases and seven civil cases,
and was homo in Toronto before my American brother had half
his jury. 1 told the New York Bar Association that in my thirty
years experience I never saw it take more than half an hour to
get a jury. Let me add that I have never but once heard a pro-
posed juryman asked a question about reading newspapers, form-
ing an opinion, or anything else. I have never known even a
murder case (except one) take four days; very few indeed take
more than two; none tried before me has taken as much as two
full days; and meilical or other exports are not allowed to drag
out proceedings. We tliink four on each side enough except in
special circumstances and we keep tliese well in hand.

la fair play not the only natural right of one accused of
cnme? It may bo that in some courts the proceedings are pro-
tracted by (he gladiaiorial spirit. The prosecuti g counsel feel,
that he has a brief for conviction and that he is vannuished and
d.8graco.l ,f he fails in procuring it. He strains every nerve
to that end. .trctchcs the law and colors the facts; and if
per fasaulper nefas he hears the jury say "Guilty" he is tri'
umphant. I venture to think that that tl.eory and the practice
based upon it are wholly vicious and debasing. In an investi-
gation by the State into an alleged offense against itself, the
counsel representing *!.. State has the plain duty to investigate;
and the State not desirmg that an accused be pronounced piilty
If m fact or .n law he is not, it is the plain duty of the pios^
cutmg counsel to bring before the court and jury all the facta and
all the law-what helps as well as what incriminates the accused.
The wholly brutal system of the judge being the moat determ-
ined and effective prosecutor has long gone out; the only excuse for
It was that not seldom the judge had been the investigator and
had become certain of the guUt of the accused. Howell's State
1 rials are appalling reading at the best; and a judge who would
act now as the most venerated of the sages of the law acted in
the past would be cursed and despised of all men.

Has not the spirit of these judges descended to some prose-
cuting counsel? *^

In Canada, the theory is that the Crown Counsel rcpresenta
the State. He has no concern with whether the accused is found
guilty or not. His whole duty is performed when he has brought
out all the facts by direct evidence or by cross-examination of
witnesses for the defence and has summed up to the trial tribunal
fairly all the facts. If the judge or, in case of a jury trial the
jury think no case has been made out, that is no concern of' his;
he is not to blame. Of course, human nature is human nature'
Counsel will instinctively want to fight the eoimsel on the other
side. It is difficult to be impartial, particularly when one has a
strong conviction of the guilt of tlie accused ; but if counsel wilfully
concealed or failed to bring out facts favorable to the prisoner's
innocence, if lie imduly pressed for a conviction, if he were to urge

unfair arguments to the jury, he would lay himself open to un-
favorable comment of his professional brethren and the public,
as well as to stem rebuke by the trial judge. The method of
candor and fair play brings more convictions than the opposite
course. A jury like fair piny, and if they see a prisoner is not
getting it, they are not at all unlikely to feel resentment and to
••help tlie under dog." I am an old Crown Counsel, and I speak
whereof I know.

Speed is called for in an appeal in criminal matters. The
deterrent effect of punishment varies inversely with the delay
in punishing: while if there is to be a new trial, it should be as
snon as possible, witnesses disappear or "forget" more quickly
and effectively in criminal than in civil matters.

Punishment should follow swiftly; we think, in the Dominion
if a Canadian murderer is not lianged within a year of his crime
be is justified in complaining of being deprived of his just rights
given him by Magna Charta.

There is abroad in some quarters a feeling of unrest and
dissatisfaction with the administration of justice, civil as well as
criminal. It will not do to say that this is due to machinations of
demagogues, to the ambition of politicians out of office. No dema-
gogue or dissatisfieil politii : , can long make any considerable
number of the conmiunity lielieve in what has no foundation in
fact. The causes of dissatisfaction should be sought out and if
possible removed.

Some part of this may be due to a misunderstanding of the
.rue function of the court. It seems impossible for some, and
those not the most ignorant or least American, to understand that
the court does not make tlie law. Just as it is said we have in our
bodies remains now dormant and useless, even harmful, of or-
gans which were alive and active in the reptile stage through
which we are told our race has come, so there is away down in
many minds the relics of what was real when the early judges
laid down the law to suit themselves. As the nightmare which
frights the bravest before a danger which does not exist is said
to be a rominisccnco of the terror of the ancestor, the naked sav-
age running through the dark forest of old, fleeing a very real

ilangcr, bo the present nightmare— if it is right to call it a night-
mare— may he, at least in part, an atavistic reminiscence of what
was .,n<e a grim reality. It may bo that means can be foun.l and
used by the liar or others to correct such misapprehension.

But is that the only reason? Of course substantive law is for
tlie legislature, but there are many ways in which the Court can do
much to make the administration of laws accord with the require-
ments of the people.

Conservative, Courts must needs be from their very constitu-
tion, but that does not imply that they must be unsympathetic to
any suggestion of im,,rovcment or grudging in giving full effect to
amendatory nu-nsiires, permi.ssive or imperative. Dignified tl--
should be, but that does not imply otium cum dignitate with oUam
mncty-five per cent of the prescription. Deliberate, too, but tlmt
doi^ not mean so slow that before judgment is given the litigant
■s dead or hope deferred has made the heart sick. Independent of
public opinion every judge must be, but that is not synonymous
wi h indiflTerencc to the manner in which the public receive his
judgments and the opinion the people have of his honesty Like
Ix.rd Mansfield, while he should despise the ponularity that is
run after, he may well prize that which follows. He is called
upon for imperative public reasons to avoid the very appearance of
evil and see to it that nothing in the manner of his judgments
IS unnecessarily ofiPensive to his fellow-countrj-men, however un-
palatable the matter may be. That judge received no commenda-
tion who, while be feared not God, neither regarded he man-
and no judge may use the objurgation, so well known as attrib-
uted to a multi-millionaire, "the public be damned."

The position of a judge is one of the very highest to which a
man can be called in a free country; the influence for good of an
upright and conscientious judge is incalculable; and when he ex-
hibits defects of manner, lack of prudence and decorum, contempt
of the commonalty, he grieves the judicious and does as much or
nearly as much harm as if he were ignorant of law, indifferent to
the soundness of his decision, partial in his treatment of the Bar
or litigant and subservient to sinister interests.

It is a matter of frequent comment and almost unbounded

wonder to those under another system that in these United States,
judges wlio achieve tlie Keneli tliroiigh a method wholly repugnant
to the sentiment of the British peoples are so almost universally
found to be of high legal attainment, sound judgment and indi
pendent mind. It is a matter of pride to all Knglish speaking
lawyers that the method of election or appointment has heen
tounri to be wholly immaterial; the honest liiwyer, who the satir-
ists says is the noblest work of God and about tlie scarcest, is
not scarce on the Bench of the Union or any of its component
States.

It is a matter of congratulation that it is almost unknown
that even the bitterest critic charges want of learning, ability or
honesty in the occupants of the Bench. It is, however, alleged that
dissatisfaction has been felt with an apparent indifTerenee to the de-
mands of an advancing society, an unsympathetic attitude towards
the masses. So far as that means that the courts should cliange
the law laid down for them by decision or statute, the criticism is
unjust and cannot be accepted. If it means that rules are allowed
to crystallize into technical language so rigid that the letter can
ilefeat the underlying spirit and purpose, "the case is different."
The application of rules "must correspond with the practical ne-
cessities of the times." At least that is so in my democratic
country; and I ghnlly adopt the language of the great lawyer
whom many of you heard last summer in Montreal, the Lord
Chancellor, Viscount Haldane, delivering judgment in the House
of Lords, (1914) A. C. at pp. 37-38.

IIow far tliose in a land in which a system different from
ours prevails can go in making the rules "correspond with the
practical necessities of the times," I cannot say ; hut is not some of
the real foundation (as distinguished from the political pretext)
of this agitation, based upon the conviction that the practical
necessities of the times have not been considered?

Be that as it may, it is perfectly certain that in every free

country the people will and must have their way in the long run

with courts as with all else. It is the part of the patriot and the
statesman to see to it that that way is the right way, and that
the right way is found with the least possible delay. The

riKM way in litigation implies ju.ticc cheap, gpeedv full and
certain; and anything i„ ,he constitution a'nd practice of the
courta wh,ch ,s not conducive to that end i. wrong and must b^
amended; ,f by the courts themselves, so much ,he better and tim
sooner the better, but in any case it must be amendii

We live in an age of unrest; the principles underlying in-
t,tut,ons are be.ng investigated as never before; nothing ifak™

.terated and rc.:terated .,uestion is "Why?" "Why?" .'^ny"
1 he courts should not and cannot hope to be an exception. "If
our „rtues d,d not go forth of us, 'twere all alike as if we had

^"L vl^e:? '"'°'""°'' "' "'"- '^ - "' '^'»'- ^^
So long as there is a moral law ga^.erning the universe so
long as ,ts affairs are governed by the Divine Law. the vdi"
must bo certain. With a Bar alive with a keen sense of ^i „ f
w^^h a Bench whose men.bers can say with truth and prL, 'iZ;
judged the people w.th righteousness and the poor with iudgmeni
-J..dgmen have I aid to the line and righteousness to the pL
.net-I have executed the judgment of truth and peace in the

lese-I have done no unrighteousness in judgment-I did not
r spect the person of the poor nor honor the person of the migMy
but m righteousness did I judge my neighbor-for I did noT „:
spec persons m judgment but heard the small as well as the
great and was n^t afraid of the face of man-I did not wres
judgment nor ake a gift, nor did I ask for a reward-^ id no
take bribes and pervert judgment-but I judged righteous iX

"'"*\"'f,i",^"""' "'''^'' ™""^"' f™"' the Lord"-the ve^dt
must be "Well done, good and faithful servants »