in the selection of judges. It is undesirable that judges should be so much under the influence of members of the bar as they must be if the lawyers are to have a special influence in the selection of the judge and his continuance in office. In the larger metropolitan districts it may be surmised that the lawyers would very quickly be divided up into groups controlled by the leaders of the political organizations if those leaders determined to keep control of the appointment of judges.

Appointment by the Governor directly, as in Maine, New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Florida and Mississippi, or indirectly, by designating nominees to be voted upon, as is now being urged in New York State, is better than appointment by party leaders. It is conspicuous and legal. The Governor is directly responsible to the electorate. It is not, however, an ideal method of appointment. The governor's responsibility for and interest in the due administration of

justice is remote. Justice by the court is administered by a department of government kept separate and independent of the executive. The governor can only affect it through his influence with the legislature. In many states it is fair to say that the governor has no responsibility for the way the courts operate. Our state executives are always busy building and keeping in repair a governor's political organization, which is usually separate from the various local political organizations controlling the name of the party to which the governor ostensibly belongs. This building and keeping in repair the governor's political organization is done by appointments to office, and the appointment to judgeships would undoubtedly be used as freely as appointments of heads of the State Insane Asylum and Penitentiary. Furthermore, our state executives have legislative programs and are likely to trade appointments for support in the legislature at a critical moment.

It has been suggested that appointment be by the highest appellate tribunal of the

State, the members of which are subject to the electorate. Very likely this would be better than the present method. It might well be better than appointment by the governor, because such a court is more responsible than the executive for the due administration of justice and the members of it have a stronger motive for appointing fit men, as well as an excellent opportunity for determining the character and ability of lawyers. On the other hand, there is danger that the judges of the most important tribunal of the State may become subject to political pressure and incur political animosities by reason of the exercise of the power in question. Furthermore, responsibility for selection is not concentrated.

The least objectionable method of appointment, and the one which promises the most, is that of vesting the appointing power in an elective chief justice who is given large powers over and responsibility for the way in which the court operates. Such an appointing power would be legal and conspicuous to a marked extent. It would be subject directly to the electorate. It would be in the highest degree responsible for the due administration of justice and interested in the efficiency of the court.

The plan is plainly an application of short ballot principles to the judiciary.

A precedent for this method of selecting judges exists in New Jersey. There the chancellor for the State at large, who is appointed by the governor with the approval of the senate, for a term of seven years, is given power to appoint his vice chancellors to the number of seven, each for a term of seven years. This seems to have worked admirably in building up a court with an able and effective corps of judges.*

Cambridge, Mass.

ALBERT M. KALES,

*The following extract from the letter of Mr. Charles H. Hartshorne, of Jersey City, N. J., to the author, dated November 4, 1912, explains the plan of administering the chancery jurisdiction in New Jersey: "The constitution

of New Jersey provides that "The court of chancery shall consist of a chancellor.' The chancellor is appointed by the governor with the approval of the senate, for a term of seven years. He is usually reappointed, though it is an open question whether this office is an exception to the custom that judicial officers of the superior courts shall be reappointed, regardless of their political affiliations, so long as they are capable of giving efficient service. That custom has resulted in our having upon the bench of the higher courts, judges who have served for very long periods-twenty-five years and upwards.

"A number of years ago, the work of the court of chancery having become too great for one judge to dispose of, a statute authorized the appointment by the chancellor alone (without confirmation by any other authority) of a vicechancellor, as assistant. By further statutes, the number of these was increased to seven. The court now consists of a chancellor and seven vice-chancellors, who sit separately in different parts of the state. The vice-chancellors are appointed for seven-year terms. That bench is generally regarded as the strongest in the state and has given entire satisfaction to the bar and to the public.

"The vice-chancellors hear interlocutory motions in nearly all cases under a standing rule of the court, but they conduct trials and final hearings only upon an order of reference from the chancellor. After trial they write the opinion of the court, which is usually reported, and advise the decree, which is then signed by the chancellor. No appeal lies from their decree to the chancellor, but all such decrees may be appealed directly to the court of errors and appeal.

"Theoretically, the vice-chancellors are merely referees who report and advise the chancellor, the decree being made by him upon their report. In actual practice however, they are members of the court of chancery, in fact (but not in form) making the final decree of that court.

"The system has worked very satisfactorily in respect to the character and attainments of the members of that bench, but the work of the court in populous cities is a good deal in arrear. This is due to the volume of business having outgrown the number of vice-chancellors."

WAR-HABEAS CORPUS FOR MINOR SOLDIER.

In re Petition of Mrs. Henrietta Rush, on behalf of Thomas F. Caldwell, a minor for habeas corpus.

District Court, N. D., M. D., Ala. Nov. 13, 1917.

HENRY D. CLAYTON, District Judge: This application for habeas corpus is filed by Mrs. Henrietta Rush on behalf of her minor grandson, Thomas F. Caldwell, her natural ward whose custody and control she has had, his parents being dead, alleging that he is illegal

ly restrained of his liberty under and by color of the authority of the United States and in violation of the laws of the United States by William R. Smith, Brigadier General, N. A., commanding 37th Division in training at Camp Sheridan, Montgomery, and seeks Caldwell's discharge from the custody of the mil itary authorities.

The facts in the case are not disputed and from them it is established that Caldwell was born September 28, 1899; that on October 13, 1916, while a little over seventeen years of age, but under eighteen years of age and without the consent of his grandmother, his natural guardian, he enlisted in the Alabama National Guard, which, prior to that time, had been mustered into and was then in the service of the United States; that Caldwell went with his Company to the Mexican Border, received the pay and allowances and performed all the duties of a soldier for nearly a year and that with the knowledge of his guardian; that he accompanied his Company to Camp Mills, N. Y., the point of embarkation for France, and that while at Camp Mills and on September 15, 1917, he voluntarily left his company without permission of his commanding officers and returned to his home. Upon his arrival in Alabama, he was apprehended by the military authorities and the return of General Smith to the writ shows, and it is not disputed, that Caldwell is being held by him as a soldier of the United States, that formal charges alleging the crime of desertion have been preferred against him and that Caldwell awaits trial by court-martial.

At the time of Caldwell's enlistment, Section 27 of the National Defense Act, act of Congress approved June 3, 1916, 39 Stat. L. 186, contained the following proviso:

"That no person under the age of eighteen years shall be enlisted or mustered into the military service of the United States without the written consent of his parents or guardians, provided that such minor has such parents or guardians entitled to his custody and control."

It is insisted by petitioner's counsel that this provision quoted renders Caldwell's enlistment void and that although he is held by the proper military authorities on a charge of desertion, nevertheless, the Court should discharge him and award his custody to his grandmother, his guardian.

While it is true that for a time the decisions of the courts varied as to whether the enlistment of a minor in the army or navy without the written consent of his parent or guardian,

and in view of the statutes of the United States prohibiting the same, was void or only voidable, the question was settled more than twentyfive years ago by the decision of the Supreme Court of the United States in re Morrisey, 137 U. S. 157, construing a provision identical with Section 27 of the National Defense Act, except the age then was 21 years and not 18 years as at present, and holding that such provision is for the benefit of the parent or guardian, and gives no privilege to the minor.

The law is equally well settled that a parent or guardian seeking the discharge of a minor son or ward must act seasonably-he cannot delay unduly. As was said in Ex parte Dostal, 243 Fed. 664, 669:

"He may be released from the service by a timely application of the parent or guardian having a superior right to his custody or control. But this application must be made with reasonable diligence, after the parent guardian has acquired knowledge of the actual enlistment, and before an offense has been committed by him."

or

As between the United States and the minor, the enlistment of a minor over sixteen and under eighteen years is valid and the minor becomes de jure and de facto a soldier, subject to military jurisdiction. He cannot himself seek his discharge by habeas corpus and where the parent or guardian of the minor seeks his discharge, the guardian or parent must make application with reasonable diligence and before the minor has committed any offense against the military law. He is not entitled to the minor's custody prior to the expiration of his military offense. Ex parte Dunakin, 202 Fed. 290. This rule has been announced in many cases and the reason is well stated by Goff, J. in Willingham v. Boecker, 163 Fed. 696, 698, where it is said:

"To hold otherwise will make enlistment a farce, will destroy discipline, and offer a premium for desertion. It will not do to hold that he cannot be punished by court-martial for crimes committed when he was in the naval service simply because his parents did not consent to his enlistment."

In ex parte Dostal, supra, one of the late cases on the subject, this same question was presented and the court there held that:

"After an offense has been committed by the minor against the military law, and especially after he has been placed under arrest and charges have been preferred against him, it is too late for the parent or guardian to oust the jurisdiction of the military authorities by an application to the civil courts for a writ of habeas corpus."

Citing many cases.

See also Ex parte Foley, 243 Fed. 470, where the same rule is laid down.

The question is not new in this, the Fifth Circuit. It arose in the case of Re Miller, 114 Fed. 838, 52 C. C. A. 476, and was ably discussed by Shelby, J. The court held there that a minor who had enlisted without the consent of his parents, having falsely represented that he was of age, became a soldier, amenable to military jurisdiction for military offenses, and subject to release only on application of his parent or guardian, who cannot prevent court-martial for past military offenses. Judge Shelby, speaking for the Court, said:

"His enlistment having made the prisoner a soldier, notwithstanding his minority, he is amenable to military law just as the citizen who is a minor is amenable to the civil law. The parents cannot prevent the law's enforcement in either case. It is not reasonable that a minor, of age to enlist, who secures the honorable and responsible position of a soldier in the United States army, could abandon his colors in the face of the enemy and on the eve of battle and avoid trial and punishment for desertion by the intervention of his parents, who had not consented to his enlistment, but who had taken no step to avoid it before the soldier's arrest for desertion; or that he could endanger the army by betraying its secrets to the enemy, and not be amendable to jurisdiction, his parents objecting. We cannot approve a view that leads to such results."

The question again came before our Court of Appeals in the case of the United States v. Reaves, 126 Fed. 127, where a minor had enlisted without the consent of his parents and afterwards deserted from the navy and the ruling in Re Miller, supra, was upheld and confirmed.

The Court is familiar with the recent case of Hoskins v. Pell, 239 Fed. 279, (decided Feb. 5, 1917) where this same question again received consideration of the court. While the minor in that case was discharged from the custody of the military authorities, it was because he was under the age of sixteen years and the court took the view that the statutes (U. S. Rev. Stat. No. 1118, Comp. St. 1913, No. 1886) declared him incapable of changing his status by enlistment and that his contract of enlistment was void and the government acquired no right to his services. In this case Caldwell was over sixteen years of age at the time of his enlistment and, as was said by the Court of Appeals in this same case, Hoskind v. Pell, supra:

"It is settled that the age of one who, when he is over sixteen years and under eighteen

years of age, enlists in the army without the consent of his parents or guardian entitled to his custody and control, does not render his enlistment void and that he is subject to the jurisdiction of the military authorities for an offense committed prior to the exercise of his parents or guardian of the right to avoid his enlistment." (p. 282.)

These three decisions by the Circuit Court of Appeals for the Fifth Circuit are not only sound in principle and correct expositions of the law, but they control here and no useful purpose would be secured by citing other cases in other circuits, though it may be remarked that with one or two exceptions they follow the same ruling as our Circuit Court of Appeals.

An order will, therefore, be made refusing to discharge Caldwell and dismissing the petition filed in his behalf, but following the practice in U. S. v. Reaves, supra, the dismissal will be without prejudice.

NOTE.-Right of Parent or Guardian to Secure Discharge of Minor from Military or Naval Service. In re Miller, 114 Fed. 838, 52 C. C. A. 472, Judge Shelby of Fifth Circuit refers to In re Grimly, 137 U. S. 147, 11 Sup. Ct. 54, 34 L. ed. 636, as holding that enlistment is a contract between the soldier and the government involving a change in status, and, therefore, a minor cannot throw it off at his will. The case was one in which habeas corpus was applied for by the soldier himself.

When this case was before the Circuit Court it was there held that enlistment by one over 35 years of age was absolutely void. In re Grimley, 38 Fed. 84. And reasoning by the Supreme Court was in showing, that creation of the status applied to a person sui juris, though possibly not where there is insanity, idiocy, infancy, or any other disability, which, in its nature, disables a party from changing his status or entering into new relations.

But in the next following case in the same volume (In re Morrissey, 137 U. S. 157, 11 Sup. Ct. 501, 34 L. ed. 644) the court declared that a minor over 16 years of age who enlists without the consent of his parents is held to be "not only de facto, but de jure, a soldier amenable to military jurisdiction."

In McConologue's Case, 107 Mass. 154, it was said that while the contract is voidable, it is not void, and the minor may not be released therefrom while proceedings in which he has been arrested are pending before a court martial.

In the Miller case it was said that though a parent or guardian has the right to custody of a minor, he cannot be released so to obtain immunity from crime for which he is being prosecuted before a civil tribunal. So where he is being prosecuted under military law, there is jurisdiction as well in one as in the other case.

In Dillingham v. Booker, 163 Fed. 696, 90 C. C. A. 280, decided by Fourth Circuit Court of Appeals, there is announced the same view as in the Miller case, and it is stated, that if enlistment is fraudulent or by a minor, a status is created which gives jurisdiction for the trial of

a military offense and "to hold otherwise will make enlistment a farce, will destroy military discipline and offer a premium for desertion. It will not do to hold that he cannot be punished by court martial for crimes committed when he was in the naval (or military) service, simply because his parents did not consent to his enlistment. The lack of such consent will necessitate his discharge from the service, but it will not absolve him from punishment for the crimes he committed when in service." See also U. S. v. Reaves, 126 Fed. 127, 60 C. C. A. 675, where it was declared that jurisdiction of a naval court having fully attached, an offender though a minor enlisting without consent of the father and voidable on the latter's demand, he cannot be released until the court shall have passed on the case or, if convicted, the minor shall have suffered the punishment imposed.

In Hoskins v. Pell, 239 Fed. 279, 152 C. C. A. 267, Fifth Circuit Court of Appeals, the Miller. Reaves, Grimley and Morrissey cases are referred, as supporting the proposition that enlistment is not void and the enlisted minor is subject to jurisdiction of military or naval authorities as to any offense committed prior to effort by parent or guardian to avoid the enlistment. But the Grimley case was relied on as holding, that this rule did not apply to an attempted enlistment of a minor under 16 years of age.

The Morrissey case: "The age at which an infant shall be competent to do any acts or perform any duties military or civil, depends wholly upon the legislature. ***Congress has declared that minors over the age of 16 are capable of entering the military service and undertaking and performing its duties."

Grubb, D. J., dissented on the theory that: "Whatever may be the legal effect of enlistment of a minor under 16 years of age, if the minor has sufficient age and intelligence to be capable of committing the offense of desertion, has actually deserted and is in confinement awaiting trial before a military court on the charge of desertion, I do not think he should be released from military custody until the charge has been disposed of by the court having exclusive jurisdiction to try it." It seems to me that this dissent is supported by the authorities.

In Ex parte Foley, 243 Fed. 470, the offense charged was fraudulent enlistment in representing that soldier was over the age of 18 years. After charges had been preferred the mother of the enlisted man applied for habeas corpus. It was said: "It needs no argument to show, that while in the absence of any charges against this soldier, his mother might claim him from the custody and control of the army, yet, now, that a charge is made against him that he had committed a military offense, her rights must yield to the delay necessary for the trial of that charge and for the enforcement of any sentence the court martial may impose." Here, if the position taken in Hoskins v. Pell, supra, is true, there could not have been any offense of a military character in a mere attempt to enlist, whatever may be thought about desertion or other offense after accepted enlistment.

In Acker v. Bell, 62 Fla. 108, 57 So. 356, 39 L. R. A. (N. S.) 454, it was held that, where the constitution provided that all able-bodied male inhabitants of the state between 18 and 45 shall constitute the militia of the state and noth

While Scaevola, a Roman jurist of the Later Republic (100 B. C.) gave private legal instructions and while subsequent thereto the jurisconsults followed Scaevola's practice, it was not until the time of Diocletian that the state established law schools of its own with prescribed courses of study.

The law school at Beirut is the oldest in the world; she bears the proud title of "mother of law." Rome, Alexandria, Athens, and Constantinople also had law schools.

The Emperor Justinian, noted for his codification of Roman law in his Institutes, Code and Digest, was equally active in putting legal education on a sound basis. He reformed the course of study, which covered a period of five years and substituted his own Institutes as the text book for first-year students to take the place of Gains' Institute, heretofore used. This was followed by a study of the Digest and then the Code. The three Justinian law books were all the books necessary to the entire five years course of study.

The method of study was to give the student in his first year a birdseye view of all the law, going into no one subject thoroughly, but showing the relation of the great principles of the law to one another. Thereafter for the next three years he studies cases in the Digest-thus getting the appreciation of general principles or reasons to different states of facts. His fifth year was spent in the study of statutes, administrative law and public institutions.

In Sherman's recent work on Roman Law in the Modern World (1917), the author has this pertinent comment:

"The Roman system of first text books, then cases, has been successfully tried and tested throughout the ages. It was employed in the Roman world: First an easy and simple explanation, and afterwards one thoroughly, careful and exact," says the Emperor Justinian. And

it was expressly provided that the Roman student, after a thorough drill in elementary law, should then spend much time in the later years of his course, applying inductively to the great mass of cases in the Digest, that knowledge which he had previously deductively acquired."

Judge Baldwin, of Connecticut, in 13 Yale Law, p. 11, said:

"The Corpus Juris proceeds from assertion of principles, to their application to various cases. The Institutes are a compendium of elementary law prepared by law school professors avowedly as a law school text book. They are followed by the Digest in which the same principles are more fully stated and illustrated. Then follows the statute law of recent times. Can indeed, in the nature of things, a science like law be intelligently taken up by anyone who has never been introduced to an acquaintance with its fundamental terms and conceptions?"

HUMOR OF THE LAW.

A witness in a court of a western state, illustrating his testimony by a diagram, asked for a rule. On his honor offering the "rules of court," lying near, the witness (not a lawyer) said:

"They won't do; no one could draw a straight line with them."

The court appreciated the objection.

The fact that Sir Douglas Halg attained his fifty-sixth birthday on June 19 brings to mind a story told of him a short while back.

It is, of course, well known that Sir Douglas is a soldier first, last and all the time, regarding all other professions as of quite negligible importance, a trait in his character which lends point to the anecdote.

He was, it appears, inspecting a cavalry troop, and was particularly struck with the neat way in which repairs had been made in some of the saddles.

"Very good work," he remarked to the troop sergeant major. "Who did it?"

"Two of my troopers, sir," was the reply. "You're fortunate to have two such expert saddlers in your troop," said Haig.

"As a matter of fact, sir," was the reply, "they're not saddlers, in civil life being lawyers."

"Well," ejaculated Sir Douglas, "how men who can do work like that could have wasted their lives over law I can't imagine!"-Seattle Times.