Lapas attēli
PDF
ePub

Copyright Law which you have just had presented by its accomplished Chairman, Mr. Steuart, shows that it generally takes three years to get an important measure through that conservative and deliberate body. So that your committee in that respect is not discouraged. We had a very full hearing before the Committee on the Judiciary of the House extending through a whole day; we had a very careful hearing from the sub-committee of the Senate, and we feel that the matter was presented to Congress in a satisfactory way, and now we come back to you this year with the propositions that are annexed to this report.

I have learned a lesson since I came here. Mr. Justice Brown, whom I had the honor of meeting the other day, told this anecdote of Judge Baxter, whom some of you may remember as having been judge in the Tennessee Circuit. A very important equity case came on for hearing before him, and the counsel who was to open the case arose and said, "Your Honor, I will read the bill." Said the judge, "I don't want to hear the bill; state the substance of it." But the counselor held out the bill, and said, "Your Honor, I don't see how I can state the substance of this bill; I think I must read the whole of it." "Then," remarked the judge, "I will adjourn court until tomorrow, so that you may have time to familiarize yourself with your law suit." I will not ask to have this case adjourned until tomorrow, because the diligent study that the committee have given to the subject of this report makes me feel that I can state the substance of it now.

In the first place, when the bill which we recommended last year for adoption came on to be discussed before the House Committee, they recommended two amendments that met our approval, and those are embodied in our report. The first suggestion is the omission of the word "affirmatively” in the first section. Some of our friends in Congress, particularly Mr. DeArmand, of Missouri, seemed to think that "affirmatively " meant too much; that it put too great a burden on the appellant, and on the whole it seemed to us that the adverb did not so much strengthen the proposition that it was necessary to make a fight for it. Then Mr. Moon, whom some of you remember was one of the committee who had under consideration the

revision of the statutes of the United States, suggested that there was some question as to whether the particular statute which we proposed to amend had not been repealed by implication. It had been amended after the supposed repeal, but still legislation on that subject was in such shape that it seemed to us advisable to adopt the suggestion. Accordingly, we framed the fourth section in regard to appeals in habeas corpus proceedings, so as to be an affirmative enactment without reference to any previous statute. We were told at Washington that the justices of the Supreme Court were of the opinion, after considering the matter among themselves, that this would very materially relieve the labors of the court to have the allowance of such an appeal submitted in the first instance to a judge, with the discretion to him whether to allow or disallow the appeal. Under the present system, as you may remember, the judge is bound to allow it, and you can get an appeal in a criminal case on any frivolous pretext. One illustration has been brought to the attention of the committee since the last meeting of the Association. A man in New York was convicted of a capital crime. His counsel was so clearly of the opinion that he was guilty, and that there was no error in the record, that he declined to prosecute an appeal. Thereupon the convicted man succeeded through the aid of a clever criminal practitioner in taking out an appeal in his own name. Then the question came what should be done with it. Counsel was appointed by the court, and he consulted with the previous lawyer in the case, and was advised by him not to go and see the client; he said, "He is such a brutal wretch that if you go and see him you will be disgusted with his case and won't argue it." So the counsel appointed by the court refrained from going to see his client. The case was affirmed at once, and thereupon somebody was found who sued out a writ of error to the Supreme Court of the United States, in which it was alleged that the constitutional rights of the condemned man had been infringed because his counsel before the Court of Appeals had not actually seen the client before he made the argument in that court.

Now, it is on such frivolous pretexts that a great many cases have been taken to that court. It did seem to your committee

and, as I may say, I think that part of the bill met the unanimous approval of the Committee of Congress-that such delays in the administration of criminal justice were intolerable, and that it was all wrong to give anybody the right of appeal in any case on an allegation of the infringement of a constitutional right when the defendant had had a full hearing in the court below, and it had been determined that he was guilty and should receive the punishment provided by law.

So much for the changes in the bill as we presented it last year at Seattle. The second section as we recommended it was discussed and referred back to the committee for further consideration. This is the form in which we recommend it to the Association, and I will read it: "The trial judge may in any case submit to the jury the issue of fact arising upon the pleadings, reserving any question of law arising in the case for subsequent argument and decision, and he and any court to which the case shall thereafter be taken on writ of error shall have the power to direct judgment to be entered either upon the verdict or upon the point reserved, if conclusive, as its judgment upon such point reserved may require."

The Association will perceive that there are two points involved in that proposed legislation which seem to the committee extremely important. In the first place we all have had this experience: You go to trial, your witnesses are present, and they are examined, and the trial judge decides against you on some point of law. Now, instead of taking a verdict on the questions of fact, including the assessment of damages, he rules on that point of law, and dismisses your case. Then you appeal, and, if the appellate court holds that the trial judge was wrong, they send you back for a new trial. By that time your witnesses are scattered, or, if not, their memory is naturally less clear than at the time of the first trial, because it is more remote. The result is oftentimes that you really do not get justice on your second trial when you would have had it on the first trial. Not only that, but you have had the labor and expense of a second trial, a burden has been put upon your client which in itself is an injustice. Without taking away the power of the

court in a clear case to non-suit, we propose to restore the common law practice of taking a verdict on the disputed questions of fact, when you get before a jury with your witnesses, and then go up on the questions of law.

One member of this committee, Mr. Eastman, of New Hampshire, tells us that they have gone even further in his state, and they will hold a verdict on a question of damages even where a new trial may be ordered for errors in some part of the record not affecting the question of damages. Experience in that state has shown that the procedure we recommend has proved most beneficial.

I will state further that in Wisconsin and in Kansas bills have already been adopted by the legislature substantially on the lines of these recommendations. And I may state that by recent decisions of the Supreme Court of Oklahoma (the Bar of which state had the benefit of a discussion of this subject by our President), and by a recent decision of the Court of Appeals of New York, a similar rule to that contained in the first section has been laid down as a rule of practice in those states. I was very glad to be informed by a member of this committee, Judge Amidon, who, I am sorry to say, is not here, that the Circuit Court of Appeals in the Eighth Circuit has overruled a previous decision of Judge Sanborn, and has substantially adopted the practice which is here commended. All of which goes to show that one of the great advantages of our meetings and of our discussions is the creation of what I may call legal public sentiment.

We have to appeal to the judgment and good sense of the members of the Bar and the judiciary. While it is true that in many cases legislation is desirable and necessary, yet I submit that it is also true that to have public sentiment with you is a matter of great importance in reference to the utilization, if I may use that phrase, of your legislation. We all know that characteristic of the American whom Kipling satirized, that we "flout the law we make." We do sometimes. Sometimes we get a law in advance of public sentiment, and then it is left to be enforced reluctantly, and does not get enforced. So I do not feel that the prolonged discussion in this Association and out of it

has been at all prejudicial to the cause of reform which we have at heart.

One word more and I will have finished that part of the report which covers the first bill that we recommend. Can we hesitate when we are appealed to by the highest court in the most populous state of the union to rectify the condition of things that they state they find under the practice there prevailing. This is a quotation from the opinion of the Court of Appeals of New York, which we make on page 6 of our report:

"There can be no doubt but the learned courts below, both at trial and general term, were actuated in their course by most praiseworthy motives, fully believing that they were promoting good morals, honesty and justice; but the question is, Was their holding in accordance with law?"

It seemed to your committee that it was a monstrous thing in a civilized country to have as an alternative the law on one side opposed to good morals, honesty and justice on the other. Certainly that is not the purpose for which theoretically courts are constituted and judges administer the law, and we hope that it will seem to the Association that your committee has wisely recommended reform in this matter.

Now then, coming to our next recommendation—

The President:

Let me suggest, Mr. Wheeler, that the subject matter of these bills is so different, that it would be better to take them up separately.

Everett P. Wheeler:

That will be entirely agreeable to me, Mr. President.

Therefore, I will move that the first resolution reported by the committee be adopted.

The President:

That is the bill, "Appendix A"?

The motion was seconded.

(See the Report in the Appendix, page 578.)

« iepriekšējāTurpināt »