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The Chair would remind the gentleman that we cannot recomment affirmative legislation without a two-thirds vote.
Albert W. Biggs:
Then, sir, I move that the Association does not concur in the third recommendation made by the committee in its report.
Stephen H. Allen, of Kansas:
Ernest T. Florance, of Louisiana:
If the gentleman who made the motion will refer to the top of page four of this report, he will find that the committee there says that “ The committee accordingly recommend that further efforts be abandoned to procure an amendment to the Bankrupt Act in this respect."
Albert W. Biggs:
Then I yield on that proposition and withdraw my motion. I had not read that.
The report was read by Charles Noble Gregory, of Iowa, Chairman, and on motion, received and ordered printed in the proceedings.
(See the Report in the Appendix.)
The report was read by the Secretary, and on motion, ordered printed in the proceedings.
(See the Report in the Appendix.)
Is there any report from the Committee on Law Reporting and Digesting?
The report was presented by Charles Henry Butler, of New York, and on motion received and ordered printed in the proceedings.
(See the Report in the Appendix.) The President: The Committee on Patent, Trade-Mark and Copyright Law?
The report was presented by Robert S. Taylor, of Indiana, Chairman, and on motion, received and ordered printed in the proceedings and the efforts of the committee to procure the creation by Congress of a Court of Patent Appeals, were approved, and the committee continued with directions to continue their efforts in this regard.
(See the Report in the Appendix.) The President: Is there any report from the Committee on Taxation ?
The report was read by Amasa M. Eaton, of Rhode Island, and on motion received and ordered printed in the proceedings.
(See the Report in the Appendix.) The President: The Committee on Uniform State Laws ?
The report was presented by Amasa M. Eaton, Chairman, and on motion, received and ordered printed in the proceedings.
(See the Report in the Appendix.) The President: The report of the Comparative Law Bureau.
The report was presented by Simeon E. Baldwin, Director of the Bureau, and, on motion, received and ordered printed in the proceedings.
(See the Report in the Appendix.) The President:
This disposes of the business on our programme for this morning
A recess was taken until 8 P. M.
Wednesday, August 26, 1908, 8 P. M. In the absence of the President, the meeting was called to order by John A. Gibson, Vice-President for California. New members were then elected.
(See List of New Members.) On motion of W. E. Mikell, of Pennsylvania, A. A. Freeman, of Carlsbad, was elected member of the General Council for New Mexico.
The Chairman :
I understand that Judge O'Day, of Portland, desires to make an announcement.
Thomas O'Day, of Oregon:
My associates have requested me as a resident of Portland to invite you to come and see us before you go home. We will open wide our doors and give you a hearty greeting. Someone suggested that I tender you the keys to the city, but I happen to know that we have no keys. The town is wide open.
I am satisfied that if you will come to our city, you will enjoy yourselves, and with this invitation, and in the anticipation that we shall see you, I bid you a hearty welcome.
The Chairman :
Mr. Frederick Bausman, of the Seattle Bar, will now deliver an address on the subject, Whether Our Laws are Responsible for the Increase of Violent Crime. Frederick Bausman then read his paper.
(See the Appendix.)
There is a report of a special committee which deals in some measure with the matters that have been suggested by Mr. Bausman and I suggest that we proceed to the consideration of that report and then both can be discussed together.
The Chairman :
I believe that report was made a special order after the address this evening; therefore it will now be received. The report was presented by Everett P. Wheeler, of New York.
(See the Report in the Appendix.) Everett P. Wheeler, of New York:
I listened with the greatest interest to Mr. Bausman's address. It suggests very serious matter for consideration, and it may very well be that the points he makes could be wisely considered by a committee of this Association. Let it not be thought, however, that because he dwells upon the awakening of public sentiment, that it is, therefore, inappropriate that this committee should report on the legal side. I am sure my friend would agree that it is desirable that the moral side, the public sentiment, and the legal side should go hand in hand. Our committee has dealt with the legal side and I will state the substance of the report. The evils of the present practice are very great. In the first place, we have all had this experience: We have attended in court, tried our case, had a good case, and succeeded in it. The defeated party has taken an appeal, and on some technical point, quite apart from the merits of the case, the appellate court has ordered a new trial. You go back for a new trial. Not only are you put to the expense of the trial, and the delay of the reversal, but you find your witnesses scattered. If it is suggested to you, as it sometimes is, that you may read their testimony from the record, you find that the reading from the record of a previous trial has not the same effect on the jury that seeing the witnesses and hearing them testify had. That is the first grievance that we sought to remedy.
The second is this, which has also been frequently encountered. You attend in court; your witnesses are there, perhaps brought from a great distance and at large expense; you open to the jury and present your evidence, and then you are met by the legal objection, in various forms, according to the procedure in different jurisdictions, that even admitting all your allegations to be true, you still are not entitled to judgment and so your suit is dismissed. You take your appeal; the appellate court holds that
upon your allegations you were entitled to recover, but it does not render judgment in your favor, it sends you back for another trial. Your witnesses are scattered, and you are put again to the expense involved in the new trial.
The third evil we deal with is that discussed in the very interesting paper that we heard tonight, and that is the allowance of appeals in criminal cases, without the color of merit. I may mention a recent case in New York. The private secretary of a wealthy man was charged with murdering his employer. One thing was certain, that he had gotten the money of his employer into his possession. He was put on trial, he had the benefit of able counsel, medical evidence and experts. He was convicted, and his conviction was affirmed by the Court of Appeals, which in New York has the right to pass upon the merits in murder cases, and to reverse the judgment if in the court's opinion the accused should not have been convicted upon the merits. The Governor refused to commute the sentence, saying he thought that would be an interference with the jurisdiction of the court for him to interfere when after a full and fair trial the man had been found guilty. Then a counselor of the court sued out a writ of error to the Supreme Court of the United States, alleging in his petition that there was a federal question involved. There was no federal question involved, but under the law, the justice to whom the application was made, Mr. Justice Day, was bound to allow the writ of error and he did allow it. That of course gave delay, and on almost the last day of the Governor's term of office, when he was in fact a dying man, the counsel for the prisoner succeeded in extorting from him a commutation of the sentence and then the writ of error was dropped. Now that is what is possible under the present system.
Let me before I sit down answer the objection that has been made to the first of our recommendations: It has been said that if the appellate court is at liberty to consider whether or not an alleged erroneous ruling has prejudiced the case, it substitutes the judgment of the appellate court for that of the jury. The answer to that is that the object of a trial is to get at the merits of a case. Surely that is the object for which law should be adminis