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telegraphing to many sections of the country to get a substitute, but was unable to secure anybody. Then it occurred to one member of the Executive Committee, the day before yesterday, that we might, perhaps, have a symposium for this evening, which would prove an interesting and instructive occasion for all of us. I happened to know that the gentleman who has been invited to speak this evening had written in the Atlantic Monthly upon the subject of the wrongs of the jury system, and as he chanced to be in my office on Monday morning I asked him if he could not come here and address us on the subject. He will open the debate upon the question : “What can be done to improve the jury system?” This is a subject upon which, as lawyers, we are all interested, and on behalf of the Executive Committee I wish to request that all members who are at Narragansett Pier be present, and as many of them as care to do so will come prepared to take part briefly in any discussion that may take place.

A recess was taken until 8.30 P. M.


Wednesday, August 23, 1905, 8.30 P. M. The President called the meeting to order. New members were then elected.

(See List of New Members.) Charles Claflin Allen, of Missouri:

There is a slight technical amendment to the by-laws, which should be adopted to make them conform to the Constitution. The Constitution now provides for eleven standing committees, among which are the Committee on Patent, Trade Mark and Copyright Law, the Committee on Insurance Law and the Committee on Uniform State Laws. The by-laws provide in section 2, subdivision (f), for the exercises at the annual meet

ing and call for the reports of standing committees and name the original eight committees, but omit the three committees which have since been added and for which provision has not been made in the by-laws. I therefore offer the following amendment to the by-laws:

Amend by-law 2, section (f), by adding after the words “ On Law Reporting and Digesting," the following, “On Patent, Trade-Mark and Copyright Law; on Insurance Law; on Uniform State Laws."

The result of this amendment will be to make the provision for the exercises at the annual meeting include all of the standing committees provided for by the Constitution: I move the adoption of the amendment.

Rome G. Brown, of Minnesota :
I second the adoption of that amendment.
The amendment was adopted.
Theodore Sutro, of New York:

Mr. President, I desire to take this opportunity to offer an amendment to the Constitution. There is one subject which I take it deserves a separate standing committee. I have mentioned the matter to a number of members, and they seem to think that it would be desirable. It is to have a standing committee on the subject of taxation. The members will remember that last year at St. Louis a discussion took place on a certain subject relating to taxation on a report from one of the committees. That was referred to the Committee on Uniform State Laws, but there is no report from that committee this year.

Now this subject of taxation is so vast and is growing in importance in this country every day to such an extent that I would like to offer this resolution and at the same time move that it be referred to a committee of three, to be appointed by the Chair, which committee shall report as to the desirability of so amending the Constitution. The committee can make their report under the head of miscellaneous business on Friday morning, so that if it is the recommendation of the committee that the amendment be made the proper

committee can be appointed to consider the subject and report at the session of the Association in 1906.

Resolved, That Article III of the Constitution be amended by inserting near the end of the second paragraph, after the words “ On Insurance Law," the following, “ On Tax Law."

The President:

The Chair would state, for the information of the gentleman from New York, that the form in which the resolution comes would require an amendment to the Constitution, and that would necessitate a three-fourths vote of the members of the Association present. The motion of the gentleman, as the Chair understands it, is merely that his resolution shall go to a committee appointed by the Chair to consider it.

Theodore Sutro:

Yes, sir; and to report under the head of miscellaneous business on Friday morning.

Amasa M. Eaton, of Rhode Island:

I second the motion and desire to say that I hope the attention of the committee that will be appointed will be directed to the fact that other changes will be called for, such as we have just made, in order to conform with certain other points in our Constitution and by-laws.

Theodore Sutro:
Of course, and I will embody that suggestion in my motion.

The motion referring the resolution to a special committee was adopted.

The President :

The Chair will appoint the following committee: Theodore Sutro, of New York; Amasa M. Eaton, of Rhode Island ; Jacob Klein, of Missouri.

The Chair would also at this time announce the appointment of the following committees :

On Auditing the Treasurer's Accounts: William A. Ketcham, of Indiana; Richard Bernard, of Maryland.

On Publication : George Whitelock, of Maryland; Edward A. Harriman, of Connecticut; Charles Claflin Allen, of Missouri; Francis B. James, of Ohio; Robert M. Hughes, of Virginia

On Dinner: Frederick E. Wadhams, of New York; Rome G. Brown, of Minnesota; Walter George Smith, of Pennsylvania ; Lee W. Hagerman, of Missouri; V. Mott Porter, of Missouri; Albert A. Baker, of Rhode Island.

Gentlemen of the Association : You are aware of the fact that the Honorable Thomas J. Kernan was expected to read a paper before us this evening, but he has been unavoidably detained by illness in his family. We are fortunate, however, in being able to supply a very able-bodied substitute for Mr. Kernan, and it gives me pleasure to present to you the Honorable Harvey N. Shepard, of Boston, who will address us upon the subject of what can be done to improve the jury system.

Harvey N. Shepard, of Massachusetts :

Mr. President and gentlemen of the American Bar Association: It is, of course, rank presumption on my part to attempt in this presence to speak upon so large a theme with only a few hours' notice, with no opportunity for research and with little thought; but I felt under obligation to do what I might when the officers of the Association were confronted with a sudden and unexpected emergency, and I felt myself under particular obligation to the member of the Executive Committee who asked me to speak, because I began practice in his office, and ever since I have been indebted to him for many kindnesses. I venture upon this preface not by way of any apology, as no man need make an apology for doing his duty as well as he can, however imperfectly, under the circumstances; but, if


will bear with I must confine my attention to a few memoranda, which I jotted down this afternoon in anticipation of this meeting, and I trust you will deal leniently with me if I attribute an illustration to the wrong state, for I speak from memory, without opportunity to verify


what I have to say; and, as we all know, one's memory is apt to be imperfect. If I do not give the right state, it was some state; and I assure you that the illustration has some application, though how far it is worth anything is for you to determine.

I read in the proceedings of the Universal Congress of Lawyers and Jurists of last year that a professor of the law school connected with the University of Belgium, said: “ Jury duty has become so onerous in Great Britain and the United States that no man of high character serves upon a jury.” I do not know how that may be in Great Britain, but I remember not long ago on the trial of a cause in Boston the foreman of the jury was one of the largest real estate owners and taxpayers in the city; and, at the same time, in another session of the Superior Court, which is the trial court of our commonwealth, I was trying a case before a jury, one member of which was and is connected with one of the largest banking houses in Boston. The same professor also said : “Nearly all the lawyers of the United States prefer to take their causes before a judge rather than before a jury." If this be so, it is remarkable, when in most states it is provided that litigants may waive a jury, and in very many of the states must claim a jury, that, nevertheless, there are many more cases which are tried before a jury than those which are tried before the court. He said also : “ It is the universal opinion that jurors are not competent to render expert opinions.” I cannot quite comprehend that, because I never supposed it to be the province of a jury to render expert opinion, but to decide between expert opinions. We do not put a general at the head of the war department, nor an admiral at the head of the navy department. We find it better to have a civilian in such office that he may judge between the expert opinions given to him from the general staff of the army or from the naval board of the navy. So, it seems to me, it is the province of the jury not to be experts nor to give expert opinions, but in some way to decide between the expert opinions which are offered them.

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