statutes, "that the executive officers have acted in some unlawful or improper way and abused their discretion, their finding upon the question of citizenship must be deemed to be conclusive and is not subject to review by the Court. . . . The record fails to show that their authority was not fairly exercised, that is, consistently with the fundamental principles of justice embraced within the conception of due process of law. And, this being so, the merits of the case were not open to judicial examination.”

CHAPTER XVII

THE COURTS AS "EXPERT AGENTS OF DEMOCRACY"

IN the address which he delivered before the New York State Bar Association last January, Justice Hughes discussed phases of the work of the courts, and indicated lines along which the constructive statesmanship of the future, on the bench and in legislative councils, may proceed in obtaining a better organisation and adjustment of the American judicial system. His statement of the standards which should prevail in the interpretation of statutes will long be quoted as a classic exposition of the judicial function in a democracy and of the forward-looking spirit which has come more and more to pervade the law:

I like to think of the courts as in the truest sense the expert agents of democracy, expressing deliberate judgment under conditions essential to stability, and therefore in their proper action the necessary instrumentalities of progress. We are constantly reminded of the fact that legislation, even when making important changes, is new only in part. It cannot escape its roots. In providing what is new, it also brings forward what is old. Concepts long fa

miliar in the law are introduced into new statutes; language can hardly be used otherwise, despite crudities in drafting, and in nearly every line is a connection with the past which demands the expert judicial interpreter. And further, what may seem at the time to be an abrupt or catastrophic change takes ultimately its place in legal history, when causes and effects are better understood, as a natural evolution. It is undoubtedly the duty of the courts to construe legislation according to the intent of the Legislature. But the question remains, What is the intent of the Legislature? The man in the street will tell you at once what it is, but when you put the case to him in its details he hesitates. What seemed clear becomes doubtful as the particular application to concrete facts is faced. Much that arises in the controversies which the courts must decide was not or could not have been foreseen and actual intent to deal with it was lacking. There is no one who has had anything to do with legislation but knows how various are the views inducing votes, and it is recognised that it would be highly unsafe to take even expressions in debate as representing the opinions of others whose concurrence was necessary to the passage of the measure. The intent of the Legislature is sometimes little more than a useful legal fiction, save as it describes in a general way certain outstanding purposes which no one disputes, but which are frequently of little aid in dealing with the precise points presented in litigation. Moreover, legislative ambiguity may at times not be wholly unintentional. It is

not to be forgotten that important legislation sometimes shows the effect of compromises which have been induced by exigencies in its progress, and phrases with a convenient vagueness are referred to the courts for appropriate delimitation, each group interested in the measure contending that the language adopted embodies its views. Legislation does not execute itself; very rarely does it fully explain itself; and with the legislative word, in order to make it effective, must go the judicial judgment. How important this work is in connection with recent legislation is at once apparent. For it is through the courts that consistency and symmetry will be given to new departments of law.

I have said that every statute shows its connection with the past and contains in its language references to familiar legal concepts, but the work of interpretation cannot faithfully be performed in a technical spirit which would sacrifice the growing substance of the law to a lifeless formalism. Nor can it in linking the future with the past ignore the evident purpose of many legislative changes. Thus, in the case of our Uniform State Laws, formulated and adopted with the purpose of unifying the commercial law of the country, nothing could be more lamentable than to treat the Uniform Act as an outgrowth of the separate law of the State and through conflicting interpretations to create a new diversity in place of the desired unity. It is an old maxim that in construing statutes the court should consider the old law, the mischief and the remedy. The maxim has

become so hackneyed that its fine quality is often not perceived. It calls for a statesmanlike appreciation of past, present and future, through which alone the judge can meet his responsibilities as the interpreter of legislation in the expanding life of democracy. In judicial tribunals, the Legislature is happily, though somewhat mythically, personified as possessed of all accessible information, learned in the law of the past, wise to the point of infallibility in matters of legislative discretion, generally using legal language with legal acumen and certainty and imbued with the spirit of unfailing consistency. The intent of this ideal legislative intelligence is found in the words it employs, and when found must be faithfully applied; and the general success of the courts in this arduous endeavour is shown by the fact that although the Legislature is always free to repudiate any misconstruction of its purpose, such action is rarely taken.

"A tendency

opposed to a proper conception of the function of the Courts," in the opinion of Justice Hughes, is that

which denies to judges the authority which would seem to be needed for the efficient discharge of judicial duty. Thus in some jurisdictions the freedom of the judge in instructing the jury is very considerably curtailed in a manner which betrays a regrettable distrust. This of course carries the lesson of the extreme importance of such conduct on the part of our judges as will commend their office to the com