« AnteriorContinuar »
involves any change in existing methods, however slight, or however beneficial. This is the difficulty in obtaining necessary legislation for the purpose of carrying out any needed reform. Without reflection upon or experience with regard to this matter, it would be assumed that opposition to action recommended by an association of members of the bar would most likely arise from other than members of the profession, and that where reforms had been agreed upon, after careful consideration by an organized body of lawyers, there would be little or no opposition from the bar. The contrary, however, is the fact, demonstrated by experience, aud it is found that lawyers who are members of legislative bodies are most sensitive to any change recommended by an association of members of the bar, and most difficult to win over from active opposition to any plan which has been adopted by bar associations. This seems to result from two conditions:
First, many of the lawyers who are influential in legislative bodies are political leaders, and, as such, have to a very great extent put aside their professional pride and their personality as members of the bar and devote themselves exclusively to the profession of statesmanship. A proposition which is not partisan in its character, or which fails to confer a personal benefit upon some constituents, or which is not likely to secure votes at the caucus or the polls, is not deemed worthy of consideration. Hence they are unwilling to give either time or attention sufficient for the examination of the wisdom or propriety of any reform, and are likely to become active opponents of proposed measures because they have not and will not carefully examine the merits of the matter presented.
Moreover, lawyers as a body are much inclined to criticise the labor of others, particularly members of the profession, and when an act, drawn by a committee of a bar association and approved by that body, is presented for action, lawyers in the Legislature are very much inclined to carp at and cavil about both the form and substance of the provision, although approving hundreds of bills during each session which are not at all creditable to either their literary taste or legal judgment.
NATIONAL, STATE AND LOCAL ASSOCIATIONS. The work of the national, of State and of local bar associations necessarily differs somewhat in character. An association of lawyers from every State in the Union must necessarily have somewhat different aims from one in which the membership is confined to a single State or locality. So a local association organized from the bar of a county or city has to a considerable extent other and different purposes from those which mainly occupy the attention of a State association, which, with its field not so broad as that of a national body but more enlarged than that of a locality, has within its purview many matters which are not relevant or proper to be considered by either of the others.
To illustrate: The American Bar Association, drawing upon every State and Territory for, its membership, and having chief among its objects the promotion of uniformity of legislation throughout the Union, has a broader field than any State organization, and its methods by reason of this fact and the wide distribution of its membership, must to a considerable extent differ from those of any other like body. That association acts chiefly through the papers submitted to and discussions had at its annual meetings and the inquiry, investigation and reports of its standing and special committees. It undertakes to influence legislative action to only a limited extent through direct action, and in doing so is confined mainly to such legislation as can be enacted at Washington and which will affect the powers or jurisdiction of the Federal tribunals, hence this associatian may be said to work mainly through its moral influence upon the bar and the public by creating a sentiment upon a given topic and thus bringing about changes and reforms in matters of interest and importance to the lawyer and the client throughout the country.
Again, the association of the bar of the city of New York has no literary side to its work but is solely a social and business organization, existing for ethical purposes as well, and devoted very largely to maintaining a high standard of integrity at the bar and opposing the elevation of incompetent or corrupt men to the bench. While not in full sympathy with the views entertained by this association in every case, it deserves to be said that it is a terror to evil-doers at the bar or upon the bench. It must be added that this association also devotes itself t a careful and rigid examination of the bills presented to the New York Legislature affecting the interests of the bar and the public, and fearlessly and effectually interposes its objections to whatever is regarded as improper or vicious legislation. It is en
On the other hand, there are to be found in legislative bodies many broad, progressive, liberalminded men who take up matters of this character with a will and who are disposed, through pride in their profession and belief in the necessity for reform in the law, to press matters to a successful issue. It is to such that we owe the fact that bar associations have a standing in legislative bodies; that lawyers, as such, have their legitimate influ-abled to perform this work in a most thorough and ence, and that any progress whatever is made in the satisfactory manner by reason of the facility for obdirection of law reform. taining meetings of the committee having this
matter in charge which is not possible in case of a State association, and by its numbers and standing is able to undertake and accomplish much that is ordinarily outside the scope and beyond the power of a purely local association.
The ownership of a valuable library in an accessiblé locality in most desirable quarters, makes the rooms of this association valuable for professional work, in which respect it is somewhat unique among bar associations.
As to the responsibilities of a State association, I can best carry out the purposes of this paper by briefly referring to the work carried on and the methods adopted by the New York State Bar Association. I feel at liberty to do so only by reason of the kind suggestion which accompanied the invitation to address you, that as a member of that body I am somewhat acquainted with the character of its work and the manner in which it has been
sought to be accomplished. I may be excused therefore in stating some of its recent efforts in the way of reform in the law and its administration and their results, rather than confining myself to a purely theoretical view of the subject.
THE WORK OF THE STATE ASSOCIATION ILLUS
In 1891, the attention of the association was called to the reports of the decisions of the courts of the State, nine sets of reports then being issued, many of them duplicates.
As in the case of the Constitutional amendment, a committee was appointed to take the matter in charge, and this resulted in such legislation and bringing about of such concert of action among the repórters and publishers that the official reports
now in existence are known as the Combined Series, consisting of the reports of the Court of Appeals, of the Supreme Court and of the Inferior Courts of Record, each constituting a series complete in itself, but issued in weekly numbers at a very moderate price, these pamphlets being subsequently replaced by bound volumes, giving a system equal if not superior to that existing in any State or country.
A little later began an agitation in favor of a more thorough system of examination for admission to the bar. At the annual meeting of the association, the deans of the several law schools of the State read papers advocating the movement, and it has resulted in the enactment of a statute providing for the appointment of a permanent commission to examine such applicants, the members of which receive a stated compensation, and whose duty it is to formulate proper rules and regulations for that purpose. Their recommendation is a condition precedent to admission to practice, furnishing a uniform system of examination which has been found to work in the interest of both the student
The New York association entered more actively upon the work of reform in the law and procedure in 1890. At the annual meeting in that year a a paper was read entitled, "What shall be done to relieve our courts?" in which it was urged that a Constitutional Commission should be appointed to report a new judiciary article for adoption by the people. This was followed by the appointment of a committee for the purpose of drafting an act and obtaining such legislation. This became a law and such a commission was appointed, upon which the association was very largely represented. A new judiciary article was framed by this body which, although not acted upon at that time, became the basis for the article adopted by the Convention of 1894. The association continued the agitation of the question of reform in the judiciary by mak-reported favorably upon the subject, and it was ing that subject a topic for discussion at two of its made a matter for discussion at the last annual annual meetings, at which leading members of the meeting, when a bill which was submitted by the bar throughout the State presented arguments and committee, providing for the appointment of three papers. A Constitutional Convention having at commissioners to revise the Code, was recommended length been provided for, a committee of the asso- for passage and the Committee charged with prociation was charged with the duty of presenting the curing its enactment. This bill became a law, and views of the association with regard to the judi- the governor of the State has just appointed the ciary. This committee urged substantially the three commissioners provided by its terms, thus plan which had been proposed by the Constitu- putting the State in the way of obtaining a revision tional Commission of 1890, and its recommenda- and simplification of its procedure. tions, with a single exception, were embodied in the provisions relative to the reorganization of the judiciary which became part of the Constitution as adopted by the people.
The Code of Procedure of New York, by reason of changes made from the original draft by David Dudley Field, and in opposition to his views, has become complex, complicated and cumbersome. In 1894, the president of the association, in his annual address, recommended that action be taken for the purpose of bringing about a revision and simplification of the practice. The subject was taken up by the committee on law reform, which
The methods pursued in bringing about these results have been already indicated. They are, in brief, in the first instance, to present the matter to the association in a paper prepared usually by some
and the lawyer, and must ultimately be highly beneficial to the client.
member of the committee on law reform, reflecting the views of its members, but not authoritative as such. This is followed by a reference to that committee for consideration and action, and a report follows, by which the subject is usually placed upon the programme for consideration at the annual meeting, and when favorably passed upon, the committee originally reporting is put in charge of the necessary legislation to carry out the views of the association. The committee has usually appointed a sub-committee to take charge of the specific matter and carry on correspondence with the other members of the committee and of the association and members of the Legislature with reference to the proposed enactment. It has in some instances been found desirable, in addition to the personal efforts of the members of the committee, to call the attention of the members of the association and of the bar generally, by a circular letter, to the proposed enactment, asking their opinion and endorsement. In such cases a postal directed to the chairman of the committee, printed so as to leave a proper blank for the member to insert his views, has accompanied the circular, and upon receipt of the answers the chairman and other members of the committee have appeared before the committee of the Legislature having the matter in charge. It has also been necessary at times to present the subject to the governor, and procure his approval.
IMPORTANCE OF COMMITTEE WORK.
The methods of work must, of course, vary with the specific matter in hand, but by far the most serious difficulty to be met in connection with active practical work of an association in procuring proper legislation such as it may recommend, is to be found in the indifference of members to the calls upon them by the respective committees, and unless extraordinary care is taken in the formation of the committees, much embarrassment arises in obtaining a sufficient number of men willing to take active and energetic interest in the affairs committed to their charge. But as the members acquire confidence in the methods adopted, and become encouraged by the results obtained, and the committees come to understand that their labors are appreciated and acted upon, there comes a decidedly increased interest, and very much stronger disposition toward effective action, which later ripens into something like enthusiasm for the work, coupled with a justifiable and honest pride in its results. The committee work necessarily falls upon a very limited number, but the support of the entire committee is necessary to enable its active members to give character and strength to its suggestions and recom
mendations. Names selected solely by reason of locality, influential connections or marked ability, are not in many instances those likely to be most useful in the work of committees of this character. In no part of the work of the association, however, is greater care necessary than in the selection of the committees who have in charge the securing of proper legislative action, and no committee can be charged with more important duties than that which "shall consider and report to the association such amendments to the law as they shall deem beneficial, oppose such as they shall deem injurious, observe the practical working of the judicial system of the State, and recommend from time to time such action as they shall deem best."
ESSENTIALS TO SUCCESS.
But beyond these considerations among the essentials to success in practical work of the association are:
First, unanimity and harmony of action. It will be impossible to accomplish results where action is recommended by a bare majority against the wishes of a powerful and energetic minority who will frequently be much more interested in defeating a measure than its friends in securing its passage; and on the other hand, a minority does well to bear in mind that it should bow gracefully and unqualifiedly to the will of the majority, and that nothing can be accomplished in an association of this character except by the hearty cooperation of all its members. The moral to be drawn from this suggestion perhaps is that it is unpolitic and unwise to attempt to bring about radical changes or decided reforms except in those instances where there is a substantial consensus of opinion among the members of the association.
The second suggestion is that the efforts of the association as a whole and of its members and committees must be directed to and concentrated upon a single important matter and that the energies of the body cannot be wasted upon a number of minor and unimportant details in which very few persons will be interested and which are in themselves of no great importance. It is necessary to arouse the sentiment of the bar in favor of some needed reform which is apparent to all and which is calculated to awaken the interest of the entire profession. Great danger exists that the efforts of the entire body will be frittered away in procuring the enactment of legislation of trifling importance, perhaps only affecting individual interests. This can only be avoided by the adoption of an inflexible rule that the association will not act upon matters except those of public interest and importance affecting the rights, obligations and remedies of the whole body of citizens and having some relation to the people of the entire commonwealth.
Again, I need only advert to the necessity, on the part of the officers and committees charged with the performance of any duty, of persevering labor and untiring vigilance. Nothing is more discouraging than the efforts to bring about a reform which is universally conceded to be desirable and necessary, but yet arouses no special degree of interest or enthusiasm in any except its active promoters; the temptation is great on the part of those charged with a duty of this character to feel that their obligation does not extend beyond its presentation to the proper authorities, and that in case the bar as individuals or the association as a whole does not exhibit that degree of interest which the occasion demands, the committee is absolved from further labors and responsibilities. If such a spirit is indulged in it will be fatal to success. The time and labor necessary to accomplish results are known only to those who have experienced the difficulties and discouragements of the work.
Still further, and of the last importance, is the
necessity for full confidence in and hearty support of the officers and committees charged with any given duty, by the members of the association individually and by the association as an organiza
tion. In such case only can an association obtain that degree of authority to which it is entitled, and the influence of such co-operation upon the officers and committees in enabling them to carry out the wishes of the organization is not only desirable but absolutely necessary. It is only by a long pull, a strong pull and a pull all together that LIMITATIONS-PRESUMPTION OF PAYMENT. -On a bar association is able to accomplish any results presentation of a claim against a decedent's estate in any field, and a failure to accord to those under-barred by the statute, indefinite evidence of declara
taking to carry out the measures resolved upon the warmest sympathy, heartiest support and highest degree of confidence, effectually dampens enthusiasm, discourages effort and invites defeat.
tions by the decedent that he intended to set up his nephew, the claimant, in business, because he owed him certain money, is insufficient to overcome the presumption raised by the bar of the statute. (Appeal of Ferguson [Penn.], 31 Atl. Rep. 733.)
THE FUTURE OF THE PENNSYLVANIA ASSO
Presenting my excuses for the apparently didactic manner of this paper and for its reference to the experience of other associations, as only justified by the practical purpose for which it is intended, I congratulate you upon the formation of this association, upon the interest manifested in it by your presence and enthusiasm and upon the genuine success of your first annual meeting. I can only express the wish, coupled with the confident expectation, that the bar of Pennsylvania, which has always maintained so high a standard of education, ability and professional honor, will make this association most creditable to lawyers, helpful to courts and beneficial to clients, thus fully realizing the highest and best results possible to be attained by the association of members of the bar.
Abstracts of Recent Decisions.
ADVERSE POSSESSION.- Where one who has color of title to a tract of swamp and timber land goes upon the land, cuts and deadens timber thereon, clears part of it, and makes rails and railroad ties out of the timber, he has such possession of the entire tract as will set the statute of limitations runuing. (Johns v. McKibben [Ill.], 40 N. E. Rep. 448.)
CORPORATION-POWER TO INCREASE STOCK-ESTOPPEL.—Where a corporation is absolutely without power to issue stock, or to increase its stock. above a certain limit, no act or consent of a stockholder who receives stock issued without authority can estop him to deny its validity, or his liability to pay for it. (Larda Imp. Co. v. Stevenson [U. S. C. C. of App.], 66 Fed. Rep. 632.)
FEDERAL COURTS--JURISDICTION OVER PARTIESNON-RESIDENTS OF DISTRICT.-In section 1 of the
judiciary act of 1887-88, the clause defining the districts in which suits may be brought is not limited in operation to the classes of cases enumerated in the preceding part of the section as being within the jurisdiction of the Circuit Courts, but applies to all suits, including patent cases; hence a New Jersey corporation cannot be sued in the district of Massachusetts for infringement, although it has a place of business there. (Donnelly v. United States Cordage Co. [U. S. C. C., Mass.], 66 Fed. Rep. 613.)
NEGLIGENCE Plaintiff, while turning an iron ladle fastened to car trucks and moving on a railroad track, put his foot on the rail, close to the wheel, and was injured by the sudden moving of the wheel. He could have done his work while standing out of danger, and he knew that the wheel was liable to move. Held, that he was guilty of such contributory negligence that the question need not be submitted to the jury. (Werk v. Illinois Steel Co. [Ill.], 40 N. E. Rep. 442.)
RAILROAD COMPANY-STREET RAILWAYS. The use of a street for an electric railway does not impose an additional burden or servitude to that implied by the dedication. (Limburger v. San Antonio Rapid Transit St. Ry. Co. [Tex.], 30 S. W. Rep. 533.)
THOMPSON ON PRIVATE CORPORATIONS. NEW YORK, July 2, 1895. Editor of the Albany Law Journal :
The work of Judge Seymour D. Thompson on Private Corporations,* is an event of so much importance in our legal literature and history that I will ask you to give place to this short notice of it. A careful examination of the three volumes which have already appeared (the rest will soon follow), has impressed me with the conviction that this work is far beyond the ordinary range of legal authorship. It will take as of right possession of the field that it is designed to cover, and I predict, for reasons which I shall briefly give, that it will permanently hold it.
It is national in its scope. It aims at nothing less than to state fully the law concerning private corporations as they exist to-day throughout the United States.
When we consider that the scope of such an undertaking requires an examination into the legislation and adjudications of about fifty separate States, as well as of Congress and the federal courts, we at once realize how laborious, how extensive, almost immeasurable, such an undertaking is. Diversity in details are infinite, but it is surprising after all to see in matters fundamental and basic what a substantial uniformity is found to exist. It is the latter fact that has made the author's attempt to state the whole law relating to private corporations in this country practicable.
The execution of the scheme requires six volumes of about 1,100 pages each, in which the vast and various details are, for the purposes of methodical treatment and reference, arranged into sections, numbering in all, about 8,000.
And this statement of its bulk raises a most im
portant question, namely, whether the treatise is constructed on the best plan, and if so, whether in the execution of that plan the author has been unnecessarily diffuse. The plan on which what goes under the name of an elementary legal work ought to be constructed depends upon the subject which is to be dealt with. Undoubtedly there are certain subjects which may largely be treated in what may be called an institutional manner, where the author's chief labor is to state ultimate principles, with their ground and reasons, without much detailed or specific reference to cases. But there are other subjects as to which such a mode of treatment is not the best; and to this class belongs the subject of private corporations. In this country it is funda
* Commentaries on the Law of Private Corporations, by Seymour D. Thompson. In six volumes. Bancroft-Whitney Co., San Francisco. 1895.
mental that all such corporations have a legislative origin; that all their powers are statutory; and, moreover, in the constitution of every State there are provisions limiting legislative power in respect of the creation of corporations and the powers that may be conferred upon them. These constitutional and legislative provisions are largely the basis of the judicial judgments relating to corporations and their powers, and make it necessary in many cases to give the text of the positive provisions in order accurately to understand and apply the doctrines of the courts as exemplified in the adjudged cases. The author has wisely recognized this necessity and has, in our opinion, constructed his work on the right, and, indeed, on the only true plan. It is not too large for the highest usefulness. It is a cyclopedia of corporate law. Inasmuch as the body of the profession throughout the country has not access to all of the statutes and decisions of the various localities, and if they had, would find it very inconvenient to refer to them in the daily work of the profession, the author's plan is one of the highest utility and practical value.
With this book before him the case will be exceptional where the inquirer will find it necessary to go beyond it in order to solve, or get the data to solve, any legal problem on the subject that may arise. I find that it is a work specially designed for the practitioner and the judge. My own experience illustrates this. On the day these volumes came into my hands I was engaged in tracing the law concerning the transfer of shares and the right as against the corporation of an assigneee of shares whose assignment had not been registered on the books of the corporation. I found the subject so exhaustively considered that it saved me several days' labor and made it needless to look further.
The author has the essential requisites for doing He is a man of unwearied diligence, his work well. and an active life has been exclusively devoted
to the literature and the actual work of the law. He has codified statutes. He has edited for He is years leading law journals and reviews. not a mere doctrinaire. He was for a long period a master in chancery, daily dealing with the actual adjudication of disputes of wide and varied range. He served for twelve years on an appellate bench. He has written various works, civil and criminal, on legal topics, all of which display his learning and his capacity for original thought, and the formation of independent and fearless judgments. All this learning and extensive and ripe experience he has brought to the production of this masterpiece of legal work. Not the least of its merits is that it is not manufactured " as so many modern law books are, by the aid of students and hired assist