3. Uniform State Legislation, to the Committee on Uniformity of State Laws.

4. Legal Education and Admission to the Bar, to the Committee on Legal Education and Admission to the Bar.

5. State University, to the Committee on Legal Education and Admission to the Bar.

6. Discipline, to the Committee on Grievances.

7. The Abuse of Affidavits, to the Committee on Judicial Administration and Remedial Procedure.

8. Passes to Legislators and Judges, to the Committee on Jurisprudence and Law Reform.

All of which is respectfully submitted,

JOHN P. HOYT,

EMMETT N. PARKER,

JAMES Z. MOORE.

Hon. Charles O. Bates then read before the Association his. paper on the subject of Juries and Jury Trials. (See Appendix.) MR. THOMPSON : - I must say that I have never heard read a paper before a Bar Association that so completely and thoroughly pleased me in every respect, as the paper you have just heard read. I have always been a strong advocate of the present jury system, and have defended it as strongly as I could defend anything. I know it has been attacked on every side, but do not believe that any of the attacks I have heard are just ones. That it is not perfect, is to be admitted by all, from the fact that it is a human institution. We are inclined to attack anything that belongs to time past. Anything ancient meets our criticism. Now, when men first begin to cast about them to establish an institution they go at it sincerely. Of course they cannot make it perfect, but the great central idea is right. If we were to look for architecture, we must turn to the past; there can be nothing greater in building than the Parthenon. There may be more artistic grace in certain departments, but in solidity, durability and boldness of design nothing can be better. When we turn to the department of learning, we can find nothing superior to Euclid, nor Shakespeare, nor Homer. Now, a system for the purpose of meting out justice to men is one of such serious nature, men have never trifled about it. The present system, drawing men from every walk of life, is calculated to better serve the ends of justice than could be

expected from the conclusion of any one man from one walk of life; such as our learned judges, were they to pass upon the facts as well as the law in a case. The judge will not believe that a man could be so foolish as to make a certain contract; while, on the other hand, take the men from the various walks of life, they are better qualified to pass upon questions of that kind; their vocations are various; they, or some one of them, have probably seen and met men who acted in a very similar way to the conduct of the party on trial. Then, this modification of the unanimous verdict is a thing that I have always advocated; in fact, I wanted it to be nine instead of ten in the law of the last Legislature. Now, in conclusion, with reference to this paper, I must repeat that it meets my utmost approval; I think it is strong and right; I feel like complimenting the author of it.

MR. PRESTON:- I heartily endorse all that Brother Thompson has said complimentary to the address of this morning. thoroughly enjoyed the presentation of the subject-matter of the paper of Mr. Bates. I, however, do not agree with the conclusion which he has drawn, and, without having any idea of convincing any one of the incorrectness of the conclusion arrived at by Brother Bates, or even attempting it, I wish to express my views on the subject, lest it be thought that the whole Association is unanimous on the matter. The jury system is a fine thing. However, in my limited experience, I have never seen a jury trying a case in time of general excitement and feeling, either for or against the defendant, that was not influenced by sympathy one way or the other. I have never seen a jury upon a case in which there was great public interest manifested return a verdict strictly upon the evidence adduced before it. I have in my experience seen a ease where the verdict was directly opposite to the evidence in the case, because the accused had many friends and much money. But let someone come before the same jury who has no friends and no money; his conviction is sure, even if there is no evidence to convict upon. Take the case of a man who plunders the public money, but who has friends everywhere, who has money and position, the chances are more than even for his acquittal; he will be found "not guilty." The fault may not be with the

jury; I think it is not with the jury; but the fact exists, and it exists in the administration of the law of the system. The movement in the late Legislatures, and especially the last, in making a majority of the jury sufficient to render a verdict, is a good thing, a step in the right direction; and I believe there is ample reason for the abolishment of the entire jury system in the trial of civil cases. And the trial of this class of cases could be more satisfactorily had before three or more Judges sitting en banc. I do not believe that the law will ever abolish the jury system in the trial of criminal cases, but there is room for great improvement in the administration of it.

MR. BLAKE:- I am not always in full harmony with all the juries that I have had to do with. I have had occasion to differ from juries as well as Courts; but, in the main, it is my opinion that the trial by jury is one of the best elements in our jurisprudence. In fact, I believe that it is thoroughly understood to be so by the people, and by the bar of this country. The jury system is in no danger of abolishment. I do not believe that the people of this country are prepared to take the great questions of property and property rights, the questions of liberty and life, out of the hands of their peers. This seems to me to be the pivotal point of the matter; we are not prepared to place the decisions of these questions into the hands of officers of the government, notwithstanding these officers may be chosen by the people. We want these questions decided by our peers. The men who are to decide these multifarious questions ought to be taken from all the walks of life-fellow citizens called into Court-and, under the solemnity of an oath, to decide these questions according to their best intelligence and integrity. Nobody thinks the jury system is perfect. That it is deserving of all the eulogiums pronounced upon it in the last paper, I am not prepared to say; but it is a human institution, therefore must be imperfect in many respects. But it does not seem to me that it ought to be understood by the people, and this Association ought to put itself on record as being unfavorable to anything that threatens the right of trial by jury in our jurisprudence.

MR. P. H. WINSTON: -I wish to express my very great pleasure in listening to so interesting and learned a paper as

the one now under consideration. Instead of restricting and limiting the powers and right of a trial jury I would enlarge it in at least two respects. I would give the jury the right to fix the penalty. I would allow the statute to remain as it is as to maximum and minimum punishment, but would allow twelve men to say what punishment should be administered instead of one. There is no reason why the judge should fix the punishment any more than the jury should fix it. On the contrary, there is some reason why the jury should fix the punishmentthere are twelve to one.

MR. PARKER:-The force of the last proposition of Colonel Winston, to me, is particularly timely. There is certainly no reason why the judge ought to be any more competent to pass upon the question of punishment than the jury. It is not a question of law, but of fact. The jury determines the facts from the evidence, and it is from the nature of the evidence that the degree of punishment is fixed. My experience has been that in more than a few instances in criminal cases the jury has failed to find verdict of "guilty" for the reason that they were afraid the sentence of the presiding judge would be too severe. The law is such that, while a man convicted of murder cannot be sentenced for more than twenty years in the penitentiary, but can be hanged for the same offense, juries hesitate and fail to convict the guilty because they do not want to cause a man to be put to death; but if they had the power to sentence-pronounce the penalty as well as find guilty or not guilty they would feel more freedom in bringing in a verdict according to the evidence; for, in making up their yerdict, they have in mind the punishment that ought to be meted out to the convicted person. Of course, the jury system is indispensable in criminal causes; it is, in fact, the great bulwark of the liberty of the American people. Also, the fact that this system tends to strengthen democracy, as against plutocracy, is beyond question.

MR. TURNER: -I wish to add my testimony to that of the other gentlemen who have spoken regarding the splendid paper of Mr. Bates, and I agree with many of the things that it contains, but not with all of them. I agree that, probably, we ought to retain the jury system; but my experience has been

that, nine times out of ten, one judge, or a bench of judges, will do better work and give better satisfaction in rendering a judgment in a case than a jury of twelve men drawn from the country; but it is the tenth case, where liberty is at stake or power is directing oppression toward the citizen, that the duty of the State comes in, and it is there where the unconquerable spirit of our people shows itself where it is needed. For that reason only, I would say that the jury system ought to be retained. If it were not for that, I think justice would be better administered by trained men accustomed to look both at law and fact than by ignorant persons having no experience whatever to apply the law. Juries did better prior to the adoption of our Constitution than since. Since that time a bench of judges would be better to try civil causes than a jury with the present restrictions. Prior to that time, the jury had the benefit of the advice and counsel of the judge: now, the jury does not pass upon questions of fact at all, but upon questions of both fact and law mixed. While a jury would be competent to pass upon a pure question of fact, they are not competent to pass upon questions of mixed law and fact. Now, to take away from the judge the power to confer with the jury and explain the balance of things, and show the jury how the law ought to be applied to the facts, what to emphasize and what to strike out, is to leave the jury out on an unknown and untried sea; they do not know where to land. Most certainly the jury system, or its application, would be improved if the judge were permitted to confer to some extent with the jury, leaving it, of course, in the long run, to determine as to the facts brought out by the evidence. I think that the modification of our last Legislature permitting, in civil cases, for less than an entire and unanimous verdict of the twelve jurymen to stand, is a good one. Probably it ought to be still further modified to three-fourths instead of ten.

Mr. Chadwick moved that the paper of Brother Bates be accepted and placed in the archives of the Association. Carried.

The Secretary then read the paper of David E. Baily, on the subject of Stare Decisis. (See Appendix.)

Mr. J. W. Feighan said that he was wrong, or this paper,