is no other course than for the appellate court to order a new trial, in any case where the lower court has erred in its ruling, if the jury may have been affected thereby.

Under the proposed plan, the number of new trials would be reduced to an absolute minimum. All those cases where a new trial is now given, because of the refusal to grant proper instructions or the granting of erroneous instructions, would be eliminated. New trials would not be awarded because of the introduction of irrelevant testimony by the trial court, but the Court of Appeals, ignoring the irrelevant testimony, would enter a tinal order in the case in accordance with the merits. And, even when the trial court had excluded evidence which was material, a new trial would not be granted, unless the Court of Appeals thought that the excluded testimony should have changed the results. It would be rare, therefore, for a case to be sent back by the Court of Appeals to be re-tried, and few cases would go to the Appellate Court from the trial court in common law cases except upon the very merits of the cause.

If it be said that the plan calls for the creation of a great many new judges and involves too much expense, the most obvious answer is that expense cannot be considered, if it is necessary for the maintenance of a good and efficient judicial system in a modern civilized State. But I do not believe that the expense would be great. It would not require the creation of a very large number of new judges to enable each county and city to have three judges sit at these terms at which common law cases are tried and, as against the expense of the judges' salaries, we have the saving of the jury fees.

The need of improvement on the present jury system is very widely felt and some plan must be adopted to better meet the requirements of advanced civilization.

Confining the jury to the determination of the answers to certain formulated questions of fact; abolishing the necessity of unanimity in arriving at a verdict; electing or appointing professional jurors to sit in all cases; are merely partial remedies at best.

As has recently been stated by the New York Times, quoted in the February Virginia Law Register:

"Trial by jury is, of course, a noble, a venerable, an almost sacred institution, but its beautiful adaptation to conditions long since passed away never to return is the source of all its present inaptitudes, inadequacies, and absurdities. Bench and Bar itself suggests that real reform lies in presenting to the jurors only definitely formulated questions of fact, to be as definitely answered, and in making the foreman a chairman, with power to direct and control the discussion of the evidence. That, too, might work improvement in the system, but it would still remain true that the average juryman, especially in civil cases, is often confronted with problems for the solution of which he has little or no real competency."

What is needed is the abolition of the entire jury system in civil cases, and the substitution therefor of three judges. But the wisdom of such a plan is based on the idea of the entire independence of the judiciary. Without this, the abolition of jury trial would be a calamity.

If our Virginia judges are not to be what they are to-day, independent; if the position of a judge should no longer attract able and high-toned lawyers, then the jury system will become essential to the safety of the State.

If the new and dangerous doctrine of "Recall" is to find. favor with our people, and is to be extended, under specious pleas or demagogical argument, to the judiciary, then the judges will be reduced to the level of baseball umpires to be howled at and pelted by the excited and unthinking mob; then no man of any sensibility, unless driven by financial embarrassment, will consent to occupy the position; and then the jury will be the bulwark against the aggressions and irresponsibility of the rabble, as it has been, in times past, the bulwark against the aggressions and tyranny of the Crown.

Progress toward a Permanent International Court.

ANNUAL ADDRESS, DELIVERED AUGUST 10, 1911, BEFORE THE VIRGINIA BAR ASSOCIATION BY HON. HELM BRUCE, OF

LOUISVILLE, KY.

Mr. President, Members of the Virginia Bar Association, Ladies and Gentlemen:

The main purpose of all government is the administration of justice the determination of what is right between man and man, and then the enforcement of the right as thus determined. Hume in one of his essays on the origin of government, says:

"Man, born in a family, is compelled to maintain society from necessity, from natural inclination, and from habit. The same creature, in his farther progress, is engaged to establish political society in order to administer justice, without which there can be no peace among men, nor safety, not mutual intercourse. We are, therefore, to look upon all the vast apparatus of our government as having ultimately no other object or purpose but the distribution of justice or in other words, the support of twelvejudges. Kings and parliaments, fleets and armies, officers of the court and revenue, ambassadors, ministers, and privycounsellors, are all subordinate in their end to this part of administration."

It is an extraordinary fact that although the main purpose of all government is what has been indicated and although it has for centuries been considered barbarous to permit men to settle questions of right between them by force and arms, yet in this present day, when nearly two thousand years have expired since the birth of Christ, nations, which are but aggregations of men,

continue to settle their differences by mere brute force, acting according to what has been said to be

"The good old rule, the better plan, That he may take who has the power; And he may keep who can."

I propose to-day to speak on the subject of the progress which the world has made toward the establishment of an international court of general jurisdiction, for the decision, not by diplomats, but by jurists, according to fixed legal principles, of questions arising between nations. I do not hope to be able to say much that is original. What I shall say will be rather in the line of history than of prophecy. And in the beginning I desire to acknowledge that by far my most valuable source of information has been the extremely interesting and instructive work entitled, "The Hague Peace Conferences of 1899 and 1907," by Mr. James Brown Scott, a Solicitor of the Department of State of the United States, who was himself a delegate to The Hague Conference of 1907. In addition to the information derived from this valuable work a great deal has been learned from different addresses delivered before various societies in this country by eminent statesmen, lawyers, and scholars of this and other lands; much of which literature I have secured through the kindness of Mr. Scott.

As courts and the judicial administration of justice by having controversies between individuals determined by some impartial tribunal, are the result of society organized among men, so an international court for the determination of controversies between nations must be the result, when it comes, of an international society, to-wit: a society of nations. Such a society does exist, and has long existed; its bonds are continually strengthening; and in my judgment an international court will inevitably result in course of time.

It is interesting and instructive for our present purposes to trace some of the steps in the formation of this society of nations. It has been said that it was formed by the Congress of Nations which resulted in the Peace of Westphalia in 1648, whereby the Thirty Years' War was concluded, and of which Congress it has been said:

"It may be chosen as the epoch from which to deduce the history of the modern science of international law. It terminated the long series of wars growing out of the religious revolution accomplished by Luther and Calvin, and the struggle commenced by Henry IV. and Richelieu, and continued by Mazarin against the political preponderance of the house of Austria." (Wheaton's Law of Nations, pages 69, etc.)

From this Congress dates the practice by which every State belonging to the Society of Nations is permanently represented at the capitals of all other States by resident representatives, called ordinarily ambassadors or ministers.

Speaking of the results of this great Congress, Wheaton says:

"The peace of Westphalia continued to form the basis of the conventional law of Europe, and was constantly renewed and confirmed in every successive treaty of peace between its central states until the French Revolution."

* * *

After the French Revolution and after the downfall of Napoleon came the Congress of Vienna, held in 1814-15, by which the relations of the European States were practically reconstructed; there being represented at this Congress Great Britain, Russia, Austria, France, Spain, Portugal and Sweden. Of this Congress, Sir Travers Twiss said; "It inaugurated a new era in the history of European public law, in proclaiming the principle that the states of Europe owe to the community of nations duties to which their special interests must be subordinated Napoleon I trampled under foot the international law of his epoch, but upon the ruins of the old system there arose a consciousness of a community of interests which has called into being the consciousness of a community of duties. This consciousness has contributed powerfully to the establishment of a new order of affairs whose highest expression is the European Congress." Among other things it declared in favor of (1) the free navigation of international rivers, and (2) the abolition of the slave trade.

The Congress of Paris, held in 1856, came at the conclusion of