the judge an elective officer, the advocates of the appointive system continue, renders him dependent on political leaders; party service — not fitness is made a test for the office; in order that the republican form of government may be a success and justice done between man and man, the judiciary must be absolutely independent; the judge must feel that he need not come up for a renomination before the leaders of his party; he must not be afraid to render an unpopular decision which may perhaps cause his defeat if he is candidate for reëlection. Therefore, they conclude, the appointive system is the only one which puts the judges in such a position.

373. Barristers and solicitors in England. Lowell describes as follows the distinction between two branches in the practice of law which, although uncommon in the United States, is usual in England and the continent: 1

In the face of a legal education until recently very unsystematic, the excellence of English law as a body of jurisprudence has been promoted by the method of recruiting both the bar and the bench. As in most European countries, the practice of law is divided into two branches, that of the barristers, and that of the solicitors or attorneys. The solicitor or attorney alone comes into direct relations with the clients. He is their confidential adviser and friend; draws up their legal papers; carries on for them business of all sorts that may have only an incidental connection with law; does the preliminary work of preparing a case for trial'; and can himself conduct the trial before inferior courts. A man is admitted by the court to practice as an attorney only after an apprenticeship and a series of examinations. These last are conducted by the Incorporated Law Society, an association composed of solicitors, which has done much to raise the standard of legal education in the profession. Other forces have, indeed, worked in the same direction; for in England, as elsewhere, the business side of law has grown in importance, and the great firms of solicitors have attained a position lucrative and dignified to a degree that would hardly have been thought possible a century ago.

The barrister gives the solicitor opinions on doubtful points of law; and has the exclusive privilege of conducting trials and making arguments before the higher courts. Unlike the solicitors, who are scattered over the country, the barristers are mainly concentrated in London. . . . The barristers have, in fact, a rigidly aristocratic organization. They all belong to one or other of the four Inns of Court; the Inner Temple, The Middle Temple, Lincoln's Inn and Gray's Inn, each Inn being

1 Copyright, 1908, by The Macmillan Company.

governed by a body of Benchers, who fill their own vacancies from the leading or senior men at the bar. Having almost uncontrolled power to admit or expel members of the Inns, the Benchers hold the keys to the profession; although in fact they very rarely refuse admission to any one who eats the dinners and passes the moderate examination required. An organization of this kind, of which, by the way, the judges continue to be members, gives to the bar a great solidarity and capacity to maintain its traditions.

The late Lord Coleridge, Chief Justice of the Queen's Bench, expressed the opinion that the separation of the two branches of the profession was better for the development of law, while the American habit of combining them was probably better for the client. From the standpoint of perfecting the law the English system has two advantages. Instead of expending much of their time on business affairs, the counsel who assist the court by arguing cases have their minds engrossed by legal principles, and by the practice of law as a distinct art; and they are selected and retained by solicitors who are themselves lawyers by profession, instead of by clients with whom a business connection, a cheap notoriety, or engaging manners may have more influence than a profound knowledge of the law.

374. Importance of lawyers in the United States. Burgess emphasizes the part which lawyers have played in our constitutional development and points out the responsibilities resting upon the profession.

This consciousness has been awakened and developed by the fact that the political education of the people has been directed by the jurists rather than by the warriors or the priests; and it is the reflex influence of this education that upholds and sustains, in the United States, the aristocracy of the robe. I do not hesitate to call the governmental system of the United States the aristocracy of the robe; and I do not hesitate to pronounce this the truest aristocracy for the purposes of government which the world has yet produced. I believe that the secret of the peculiarities and the excellencies of the political system of the United States, when compared with those systems founded and developed by priests, warriors, and landlords, is the predominant influence therein of the jurists and the lawyers.

But government by lawyers has its weak points and its dangers. If the lawyers separate law from history and jurisprudence, and jurisprudence from ethics, they will inevitably and speedily lose that spiritual influence over the consciousness of the people, which is the sole basis of their

power. Let this once happen, and the courts will be unable to stand between the constitution and the legislature. The legislature will become almighty. That branch of the government in which, especially under universal suffrage, party blindness and passion are most sure to prevail, and in which the least sense of personal responsibility exists, will have at its mercy those individual rights which we term civil liberty. The student of political history knows only too well that the despotism of the legislature is more to be dreaded than that of the executive, and that the escape from the former is generally accomplished only by the creation of the latter.

I think there is reason to fear that the legal profession of to-day in the United States does not appreciate its position, and is not sufficiently impressed with its duty to preserve the ideal source of its power. There is reason to fear that law is coming to be regarded by the mass of lawyers too much as an industry; and if this be true of them, it will surely follow that it will be so regarded by the mass of the people. It rests with the lawyers and the teachers of law to determine for themselves whether they will divest themselves of their great spiritual power over the consciousness of the people; whether they will give up the commanding influence which their predecessors have held in the making of this great republic, and which those predecessors exercised with such beneficent results to the welfare of the whole people.

III. RELATION OF JUDICIARY TO EXECUTIVE

375. Necessity of judicial independence. Judicial independence of executive control has been found essential to individual liberty.1

First, we may note the need of rules reducing within the narrowest possible limits the power of the executive to imprison private citizens before trial. The most important provisions under this head are (a) that no one shall be arrested except on a definite charge of having committed a certain offense; (b) that the person arrested shall be brought as soon as possible before a judicial functionary who shall decide whether the charge is made on grounds prima facie reasonable, and whether the offense charged is sufficiently grave to render it needful to keep the accused in confinement until the trial; (c) that if the charge is of this grave kind the accused shall be brought to trial as soon as possible, and that if it is of a lighter kind, he shall be set at liberty on bail. In order that these latter provisions may be effective, it is clearly desirable that

1 By permission of The Macmillan Company.

the judicial functionary before whom the accused person is brought should be distinct from the executive and independent of its influence. This independence is further required to secure an impartial trial in any case in which the conduct of private persons which is alleged to be illegal is certainly inconvenient to the executive. It is also required to secure the effectiveness of another of the constitutional bulwarks of freedom to which I above referred, the right of suing or prosecuting government officials for any illegalities committed by them in performance of their functions. For if the conduct of one member of the executive had to be judged by another, or by a judge practically under its control, the esprit de corps which may be presumed to exist in the executive as a body, and its natural tendency to resist any restriction on its powers, would diminish the complainant's chance of obtaining an impartial hearing and adequate redress.

376. Advantages and disadvantages of separate administrative courts. The European method of a distinct system of courts for officers of the administration has certain advantages and disadvantages.

The chief advantage claimed for the system is that the subjection of the public authorities to the continual control and interference of the judicial courts is detrimental to prompt and efficient administration. Administrative controversies are somewhat peculiar in their nature and involve questions which for proper consideration require a special and technical knowledge not ordinarily possessed by judges whose training and experience have been confined to the field of private law, and whose education has been academic rather than practical. Such judges are likely to have exaggerated notions of the rights of private individuals, as against those of the public; they are inclined to a natural timidity in deciding issues between individuals and the government adversely to the claims of the individual; and with their disposition to adhere strictly to legal rules and traditions they sometimes unnecessarily hamper and obstruct the legitimate operations of the government. .

The chief objection that has been urged against the European method of relieving the public authorities from the control of the regular courts of justice and intrusting the determination of so-called administrative controversies to special tribunals, is that it destroys to a large extent the legal protection of the individual against the acts of the administrative authorities. The legal remedies which are allowed by these courts for the infringement of individual rights by the authorities are quite different

from, and, it is asserted, less effective than, those afforded by the regular judicial courts in other cases. Moreover, their responsibility is to a class of tribunals made up largely of administrative officials who, being a part of the government themselves, are apt to be less favorable to individual rights than are judges of the regular judicial courts. This may be due partly to their natural zeal for the rights of the administration, or the result of pressure on the part of the government itself.

IV. RELATION OF JUDICIARY TO LEGISLATURE

377. The great writs. Courts issue certain writs which affect fundamentally the rights of citizens.1

1. The first and most famous of these writs is that of habeas corpus. This writ is designed to secure to any imprisoned person the right to have an immediate preliminary hearing for the purpose of discovering the reason for his detention.

2. The second writ is the writ of mandamus which is used against public officials, private persons, and corporations for the purpose of forcing them to perform some duty required of them by law. The mandamus is properly used against executive officers to compel them to perform some ministerial duty. Where the duty is purely discretionary and its performance depends upon the pleasure of the official or upon his own interpretation of the law, the court will not intervene. . . . The writ of mandamus is also often used to compel an inferior court to pass upon some matter within its jurisdiction which it has refused to hear or act upon.

3. The third great writ is the writ (or bill) of injunction. This writ may be used for many purposes. Sometimes it takes the form of a mandatory writ ordering some person or corporation to maintain a status quo by performing certain acts. Thus, for example, the employees of a railway may be forbidden to refuse to handle the cars of some company which they wish to boycott; in other words, may be ordered to continue to perform their regular and customary duties while remaining in the service of their employer. Sometimes the injunction takes the form of a temporary restraining order forbidding a party to alter the existing condition of things in question until the merits of the case may be decided. Sometimes the writ is in the form of a permanent injunction ordering a party not to perform some act the results of which cannot be remedied by any proceeding in law.

1 Copyright, 1910, by The Macmillan Company.