Judges and their Environment. set out. " Hence," he continues, " the cate gorical contradictions between one writer and another which abound. Colonel Mure appeals in defense of one historical thesis to the fact of the Hellenic confederacy combining for the adoption of a common national system of chronology in jj6 B. C. Mr. Grote replies : ' Nothing is more at variance with my conception,' (he just now spoke of the preconceptions of others, ) ' than the idea of a combination among all the members of the race for any purpose, much more for the purpose of adopting a common national system of chronology,' " etc. In this country, more so than in any other country in the world, judges are in fact makers as well as interpreters of the law. The United States Supreme Court might, with little exaggeration, be described as our highest and most important legislative body. The general principles laid down in the Con stitution are so few and simple that they are capable of the most diverse interpretation and application. Whether the legal tender act was constitutional; whether State legis latures have a right to reduce rates of fare upon railroads; how far the police power of the State extends; whether a State statute discriminating between white and colored persons is void or not: — these and many other questions like them are decided by the Supreme Court not so much on legal as on practical grounds. So far as the law of the case goes, a good enough argument can be constructed either way : — the real question is, on which side does the public interest lie? It is obvious that in order to deal satisfactorily with such cases, either in Federal or in State courts, judges must be not only good lawyers, but also men imbued with the spirit of Republican institutions, — men who understand and sympathize with the great mass of the people, who know both the strength and the weakness of their countrymen. Such men are not often found among those who were born and brought up in a city, and who have never been in
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familiar contact with a single person who lived by the labor of his hands. Perhaps they are most often found among that large class who have grown up on New England or western farms, who have paid their own way through college, and who have finally achieved professional eminence in the rival ries of a great city. Many cases also arise from the conflicting claims of capital and labor, and a judge who was born and brought up in a wealthy and exclusive circle would be apt to have a pre conception in favor of capital. His friends and associates would, in most cases, be drawn from the capitalistic class. It has been said by a modern philosopher that no man can really sympathize with the mass of his fellows unless, at some period in his career, he has been accustomed to black his own boots. If this be true, — and the proposition must, I think, commend itself to every candid mind, — then it follows that those fortunate — or shall we not rather say unfortunate — persons who have never performed this menial office, are so far forth disqualified for holding judicial posi tion. Of course, if the association and bringing up of candidates for judicial appointment were considered by the appointing power, they would need to be estimated in connec tion with the geographical situation of the court. In some western States, for ex ample, an ultra conservative man might be of value, as a counterpoise, on the bench. On the other hand, the most common fail ing of judges in this part of the country is that of regarding the common law too nearly as an exact science, to be applied regardless of practical results. There is a certain iciness in the blood of some ju rists : — it is almost a physical defect. One has even heard a story of an eastern judge, who sat upon the bench for three con secutive days, and gave no sign of life. During this time a case of great importance was argued before him by able counsel who
