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United States. I appreciate it as such, and I tender you my thanks for this opportunity. Perhaps I should add that it is a pleasure also, were it not for a certain very disagreeable consciousness that the paper which I am about to present to you, hurriedly prepared in the midst of exacting duties, is little worthy of your attention, and also to an impression derived from my experience as a hearer in this hall, that the presentation of anything from this platform is an exercise somewhat painful both to the speaker and the listeners. The paper
which I am about to read has received a title mainly because the Secretary demanded of me that I should give it one. It is “Government by the People,” to the discussion of which I have essayed to impart somewhat of an abstract and philosophic tone; but I wish particularly to emphasize at the outset this title and beg you to bear it in memory, because, otherwise, I fear very much that you would have extreme difficulty in determining what was the subject of the address. The speaker then read his paper.
(See the Appendix.) The President:
The unfinished business of the morning is now before the Association, and the Chair understands that there was a point of order raised by the gentleman from Missouri to the motion made by the gentleman from New York that the Association adopt the minority report of the Committee on Commercial Law.
Walter S. Logan, of New York:
Since we adjourned this morning, Mr. President and gentlemen, I have conferred with my adversaries and we have entered into a protocol, or perhaps only a truce. We have agreed upon a resolution which, if it is adopted by the Association, will save the Chair a great deal of trouble, though it may perhaps make trouble for his successors. The resolution is as follows:
Resolved, That the recommendations of the minority report of the Committee on Commercial Law for 1904, together with
the recommendations of the supplement thereto for this year, be referred to the Committee on Commercial Law with instructions to report thereon at the next meeting of the Association.
I beg to offer this resolution, which I think overcomes the point of order made, and move its adoption.
Frederick N. Judson, of Missouri:
I second the motion to adopt the resolution. In doing so, I will state that the distinguished Chairman of the committee and the other members of the committee were influenced in their very pacific action by the very bountiful hospitality we have enjoyed today at the hands of our Rhode Island brethren.
George Whitelock, of Maryland:
I think it is only proper that I should add, Mr. President and gentlemen, that neither Mr. Judson nor myself claim any credit for this resolution. Mr. Logan is entirely and wholly responsible for it.
I think, sir, there will be considerable discussion on it. This Association, in the year 1903, at Hot Springs, Virginia, recommitted the report of the Committee on Commercial Law with instructions to the committee to report specific remedies in legislative form for any unlawful combinations which might threaten commercial intercourse. That was done after a very bitter attack had been made by a former President of this Association upon the report of the committee. Following that action, the Committee on Commercial Law was recast. not packed, but everybody, except its Chairman, who entertained a certain line of view, was taken off and a substitution was made including an honored former President of this Association, and it seemed that those gentlemen who were then placed on the committee were opposed to the doctrine of the committee's report as presented at Hot Springs. Following that, in 1904, the committee divided along lines that might have
been expected, and a majority and a minority report were presented.
Following that, it was resolved by this Association that the majority and minority reports should be received and filed, but that, inasmuch as the reports were not printed and distributed fifteen days before the meeting, their consideration should be postponed until the next annual meeting of the Association, with leave to the majority of the committee to make a majority report, and with leave to the minority of the committee to make a minority report, to amend or to supplement the report, provided that when so amended or supplemented the report should be printed and distributed to members as required by the by-laws.
Now I understand that the supplemental report of the minority of the committee has been filed in accordance with the rule, and that the majority of the committee has not filed any amended or supplemental report. So that it now stands that there is before this Association a majority report, the one made at St. Louis, in 1904, with the minority report and a supplemental ininority report. Now it is proposed, there having been a partial stifling in 1903, and a little more stilling in 1904, that we should again stifle. I think this Association will make a mistake if it adopts this protocol or truce, or rescission or whatever it may be termed. If this Association wants to deal with this question, let it deal with it. Let us meet it fairly. We have heard this morning a most glowing eulogy, truthful and appropriate, of the Bar and of the profession. This is the great lawyers' association of America. It ought not to be afraid to meet this question. It ought not to evade the issue. It evaded it in 1903, it evaded it again in 1904, and now here is a truce that says evade it in 1905. And what will happen in 1906 the Lord only knows if the committee should happen to be again recast upon different lines! I think this Association would do itself more credit if it should disregard this truce and pass upon the merits of these two reports. Let the gentlemen of the majority of the committee maintain their
position, and let the gentleman who constitutes the minority of the committee maintain his position. Then let this Association consider what, if anything, it desires to do. But do not let us run away from this spook. Let us stand up and meet it like men and express our views and decide what we think ought to be done.
John Morris, of Indiana :
I heartily endorse the sentiments expressed by my colleague from Indiana ; and for the mere purpose of bringing the matter properly before the Association, I move as an amendment to the pending motion the following:
Resolved, that the recommendation of the minority report of the Committee on Commercial Law with reference to the amendment of the Act of Congress, entitled “An Act to protect trade and commerce against unlawful restraints and monopolies,” passed July 2, 1890, be approved.
The adoption of this resolution would not amount to an approval or disapproval of the language of any of the reports. I wish to say that I presented the resolution at St. Louis, for the postponement of the consideration of this matter until
I did it at that time because the majority and minority reports of the committee had not been published and circulated, as required by our by-laws, in time for the members to become acquainted with them, and for the further reason that, on that occasion, we had a great many other things to occupy our attention. I think, we ought now to settle the question one way or the other.
William Hepburn Russell, of New York:
In rising this morning to second the adoption of the supplemental report of the Chairman of the committee, I did so with a great deal of hesitation, because my membership in this Association is so recent that, with the native modesty for which we who are natives of the State of Missouri have long been celebrated, I was under the impression that if I did more than merely to second what seemed to me to be a proposition that this Association ought to pass upon I would perhaps be tres
passing upon the patience of the house.
the patience of the house. But the distinguished gentleman from Indiana, Mr. Ketcham, haš so clearly put the case that it seems to me that right now is a good time for this Association-new members as well as old—to put themselves on record as to whether or not they favor some additional legislation by Congress for the purpose of controlling and regulating a certain class of combinations of capital. I have been for many years a corporation lawyer; I have dealt with many questions of corporation law, but I see no reason-speaking from a corporation lawyer's standpoint-to fear an amendment to the Sherman Act, the only effect of which would be to put into that act in explicit language what, prior to some of the decisions of the courts, nearly every lawyer in the United States believed to be the fair implication of the language of the act itself. This report, with the suggestion of the new amendment that is made therein, adds only to the seventh section of the Sherman Act language providing that where an offense has been committed which is intended to be covered by that section, a party may appeal to courts of equity for injunctions and for equitable relief as well as for the specific penalty provided in the act itself. What is there that should make the majority of this committee afraid to meet that issue before this body of men, representing the intelligence and clear-sighted sense of the American Bar ? Why should we not be a jury of lawyers to pass upon that question here and now? It occurs to me, Mr. President, that it is not the part of courage, that it is not the disposition of the sort of lawyers Mr. Hemenway talked about this morning, to dodge an issue of this kind and put it off upon the shoulders of our successors at a subsequent meeting of the Association. This is one of the vital issues of the hour in American law, in American politics and in American legislation. That being so, I respectfully submit that the resolution presented by the Chairman of the committee should either be withdrawn or voted down, and that we should here and now determine the question upon the majority report or the substitution for it of the minority report.