a sacrifice of his client's interests. When he goes to litigation, he does so with his heart as well as with his mind; but he knows that the business of the world is advanced by calm counsel rather than by bitter controversy; that litigation is prevented by careful preparation of clear and certain contracts, and that a client should not have his business operations suspended for the mere purpose of obtaining a re-determination of some matter involving no great principle.

And here lies a large part of the province of our activities in maintaining the rules of action, and the peace of life. Business does not care for turmoil; what it desires is certainty in its field of action. It may be interesting to lawyers to discuss a question as to whether demand need or need not be made upon a specific written obligation; but, to the practical business of which we are aids, the important thing is to have the question settled, so that there may be safety in future action. No matter which way it is settled, the vital thing is that it be settled.

It may be that no question is ever really settled until it is settled right, but in most of the things of life this philosophic dictum is of little real importance. In the long run, it is better in matters of no great moment that even faulty precedents should remain unshaken rather than that the law should stand confused and uncertain. What assistance can we give to the development of the ever-ramifying business of the present age, better than through the assertion of the doctrine of stare decisis, and through our aid to the courts in this assertion? But is it not true that in recent years there has been a marked development of the tendency to urge upon clients the questioning of settled things, and upon courts the shaking of established and practical precedents?

There are and always will be questions of large importance which involve so much of human life and its development that change must come, and here the law is and must be a changing thing; but the great majority of business issues is of such a character that their definite settlement is of more importance than the

manner of their settlement or its theoretical accuracy. No house can be built upon shifting sand.

The first volume of the Colorado Reports stands at the threshhold of our local self-government; but, with few exceptions, it contains no case which could not have been decided contrary to the actual decision, and with safety to the development of the present State, and to the happiness and prosperity of its people--provided, such contrary decision had been scrupulously maintained and sustained as a stable declaration of the rule of action upon which the people could rely. It is a rule of action that business demands; and to this it is entitled. It is to the establishment and maintenance of a rule of action that the lawyer is, and should be, by profession committed.

The very impulse away from certainty, has brought with it its natural corollaries. We demand reforms in procedure-and properly so-but let us be careful lest, through an indolent desire to find the avenue of least resistance, we yield to a tendency to shatter the forms of law so much that a lawyer will not even have to master his client's cause.

But perhaps our greatest danger, and the greatest danger to those whom we elect to aid, and whom the courts must serve, lies in a tendency to depart from certainty of rule through a glorification of so-called "substantial justice." The law can rid itself of insubstantial forms and technicalities, but it can not determine causes without rule, and remain "the law." In Colorado, we have not gone far on this path, but elsewhere there are courts that have. The path itself leads to a morass. There are many cases in which the facts so speak the legal conclusions on established lines that formal opinions may not be needed, and, certainly, the elaboration and re-statement of settled rules serves no good purpose. A strong statement of a principle in one case, and a later reference to that case tends to greater future precision than do repeated attempts to demonstrate and to justify the same principle. But, on the other hand, a naked statement that the sub

stantial justice of the case demands a certain judgment means nothing, for it starts with no premise and it ends with no guidance. If a court and the Bar be at liberty to say that a decision for the plaintiff in one cause is to be sustained as exhibiting substantial justice, then on the same state of facts in another cause they can declare that a decision for the defendant is likewise to be so sustained, and the case become chaos.

Substantial justice is a personal and not a legal conclusion. The substantial justice of one case may readily become substantial injustice in another case. The substantial justice of today may be the substantial injustice of tomorrow. A thing that is "as long as a piece of string" and "as big as a piece of chalk" has no dimensions. It is better for a litigant to lose and be told why he loses, even if the ground be originally debatable, than that he should win blindly and be lead to repeat his actions, only to be told, in a later and more important case, that he has built in vain. It is true that here and there, there may be an individual loss, but it is a loss to the common weal. No rule exists if we are at liberty to dispense with it, and no progress can exist without an occasional individual loss, and the only real and legitimate substantial justice is that which on a given state of facts declares a rule.

But there are broader matters in which as lawyers we should examine ourselves. In these latter days we have passed to economic and governmental questions which are perhaps more important than the Bar has confronted theretofore, and which involve the attitude of the lawyer toward the law as it has not heretofore been involved. The fundamentals themselves are being questioned. With politics we have no concern, as lawyers; but with any growing tendency toward the undermining of free institutions we have every concern. We, in Colorado, have taken to ourselves, through the processes of direct popular government, the means of ready adjustment of assumed wrongs, to as great an extent as seems possible. It would seem that with the initiative.

the referendum and the recall, we should be fairly satisfied; and yet is it not true that, even here, the clamor against the courts is louder, the assertion of individual judgment as against the deliberate decision of the courts is greater, and the right of the individual to depart from obedience to any definite rule of action is more boldly asserted than ever before. The power we have taken to ourselves to correct, and to correct quickly, whatever of fault we think we find in established things, does not appear to have advanced us in the maintenance of or in the desire to maintain, those things prior to such correction.

Of course there has never been a golden age, and of course it is of vital importance to the continuance of our institutions, and to the administration of the law itself, that there be freedom of fair criticism both of men and of measures, and that there be honest and patriotic criticism of the courts themselves. But this does not mean that we as lawyers should stand idly by and listen without protest to personal, prejudiced and unwarranted attacks upon the courts, and upon the official action of the judges through whom the courts must speak, and through whom the law must be declared, if it be declared at all. In many quarters, it is almost assumed to be a constitutional right to charge corruption against courts in general, and to charge individual and deliberate dereliction against the judge whose judicial declaration does not conform to somebody's personal point of view.

Under such attacks are we doing what we can to protect the courts?

It is neither the duty nor the right of a judge to be the forerunner of reform in social theories. He can but follow when the theory has been crystallized by legislative action. It is not his right to change a rule which he has been sworn to enforce and which the people themselves have not seen fit to change. It may well be that in the gradual development of society, opinions may differ as to the application of an established rule to present conditions; but it is not for a judge to set himself up as the arbiter

of this matter.

Any at

His own conviction may be that the law should be changed, but the subsequently and deliberately expressed conviction of the people may prove him to be in the small minority. These matters must be settled, but not by the courts. tempt on the part of a judge to sit as a referee in economic questions results, as a rule, in demonstrating that he is a poor referee; and any proneness to yield to his personal convictions or to an apparent temporary popular demand results in departures from salutary rules which the people may in fact desire to continue in force.

In the clash of personal and judicial opinion, it was Justice Romer who wisely said: "What I desire to point out is that I wish the law was not so, but that being the law I must follow it." Strange to say, the very complaint that courts at times exceed their authority is frequently coupled with the complaint that they do not decide in the way in which the curbstone critic thinks they should have decided, in order to meet what he thinks to be the will of the people, regardless of the law as the courts may find it. How far do we as lawyers go in our daily life in explaining that any judicial tendency to yield to this sort of demand is of necessity an excess of authority?

No man is more helpless against unjust criticism than the man upon the bench. He sits by without defense except his own conscience while the jury tries the murderer and the newspapers try him. Before he has heard the merits of a case he is frequently compelled to listen to all sorts of prejudiced appeals and to threats based on selfish or ignorant demands. If, under long-settled decisions, which the people have accepted and acted upon for years without change, he rules that a statute does not conform to the requirements of the constitution which the people themselves have said shall be his guide, he may become the brunt of a popular attack which will convince the average layman that the court has deliberately departed from the law. Under these circumstances the frequent demand is not that, by orderly processes, the law