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manner, telling the jury what the evidence upon this point and that is, and what the law is upon that point, and impressing the cause with his wise individuality, his voice, the voice of justice; is not that cause better presented, even if a particular lawyer is beaten? Do we simply practice law to win cases? Are we not ministers of justice in a better and higher sense? Are we so wedded to the idols, since 1847, that we are the masters of the court, talking to a jury? All the misrepre sentations that human speech is capable of without a warning voice from the judge, are thrown into the jury-box-is that what we call the license of the American lawyer? I denounce it as a man, as a citizen, as a lover of my race, as a lover of justice I denounce such practice as that. I want every case tried by me in the few years that are left to me to practice law, to be tried with the aid of the judge telling the jury what the evidence is, and if he chooses then to indicate his opinion, it is his duty to say to that jury, "This is my opinion, but the power is lodged with you finally to decide this question." I do not fear the power' of the judge; the history of judges, at least in the United States, has taught me, with some few exceptions, that the judges of the United States have been great patriots, humane and true in their conceptions of liberty, and that no danger can be feared from them, and that is all that is involved in this question. You will pardon the warmth with which I have discussed this. I had supposed this would be purely a technical discussion, but we have listened to a speech here that has arraigned the American judiciary as the corruptors of jus tice, as the purchasable tools of corporations, which has moved me in a manner which is not usual, because I am temperate in speech and as a man, and it ought to be so-all discussion should be temperate.

Now I have taken more time than I thought, at any time, to take up on this question, and ask you to pardon me, as I know you will. I thank you, one and all, ladies and gentlemen, for your attention.

MR. CHAFFEE: Following out the practice that we have adopted here, I move the thanks of this Association be tendered to Mr. Moses for his speech, and that he be asked to prepare an article and furnish to the Secretary.

MR. GAGE: I rise to a point of order; this is an open

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debate, and my opinion is that the appropriate time for tendering thanks is after the debate is closed.

PRESIDENT PRO TEM. BOND: The Chair is disposed to think that is the practice; however, Mr. Moses will consider himself duly thanked, and I have no doubt at the end of the discussion they will all get a vote and have a request for publi cation.

MR. CHAFFEE: I don't like to be captious about it, but we have given a vote of thanks to every speaker that has manifested himself upon this floor; it has been the practice of the organization from its beginning, and to make an exception in Mr. Moses' case isn't fair.

PRESIDENT PRO TEM. BOND: The Chair did not propose to make an exception of Mr. Moses; the custom has been, and I think it ought not to have been broken into, where a general discussion is participated in by a number of assigned speakers, to leave all of those motions out until the end of the discussion and not interrupt the proceedings by this class of motions, which occasion a little confusion, but as we have broken into it and that it may not be thought that we are making an exception, I will put the motion to thank Mr. Moses and ask for a copy.

The motion was carried.

On motion the Association adjourned to 2 o'clock P. M.

AFTERNOON SESSION, JULY 2.

The Association was called to order at 2 o'clock, President Hamline in the Chair.

PRESIDENT HAMLINE: Gentlemen, the Association will come to order. The first order of exercises is the continuation of the discussion of the morning on the subject of instruction to juries, "Should the present sytem be continued; if not, what changes are advisable?" Mr. Joseph B. Mann is invited by the Association to address them.

MR. MANN: Mr. Chairman and Gentlemen: I think, Mr. Chairman, that my friend who opened this discussion is to be thanked for one thing, at least, and that is that he has succeeded in stirring up some spirit, or, as the boys would

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say, putting ginger into this matter. The Chairman at that time said the speaker was about going abroad, and I hope that in his trip across the water, while being rocked upon the billows and experiencing all the concomitant physical effects, that he will get rid of some of his ultra and peculiar notions, not only upon this, but upon other subjects. I am not a believer in the proposition that everything which is, is wrong, nor in that other proposition that every change must necessarily be for the better, and possessing this conservative turn of mind it is not strange that I am found in opposition to this whole purpose to bring about a change in the method of instructing juries, which has been prevalent in this State for about seventy years. I do not believe in oral instructions to juries, either upon the law or upon the facts. I do not believe in oral instructions upon the law, for the reason that I have a deep and abiding conviction, from my experience at this bar and in other portions of the State, that the very worthy gentlemen who are now occupying the position of Judges, taken upon an average, are not competent to instruct juries orally. Now, I say that with a great deal of diffidence; I have a great deal of respect for the judiciary; am compelled to have. I respect the office and I respect the men, as a rule, who occupy the offices. I have a great deal of respect for the ex-Judge; there are a great many of them. The fact of it is, if you get into an elevator here at the Court House in the morning, and say "Good morning, Judge," you will have about as unanimous a response as it is said you have when you go into a Kentucky bar room and say "colonel, come up and have a drink.” (Laughter).

I can assert that it is my firm opinion that the average Judge is not competent to instruct a jury orally. We do know that many mistakes are made by Judges in determining whether or not a certain instruction presented to them embodies a correct proposition of law; now, I believe it requires more legal knowledge, more real learning in the law and familiarity with the principles of law to formulate an instruction in the first instance than it does to determine whether one already formulated is or is not correct in the proposition of law therein contained. And yet the books, the reports of the courts of this State, of the Appellate Court and of the Supreme Court are full of instances in which the nisi prius Judge has mistaken the law when it was presented to

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If

him in writing. In order that a Judge may be competent to give an oral instruction to a jury concerning the law, it is necessary in the first instance that he should be thoroughly familiar with the law, because as a rule he is expected to give the law immediately upon the conclusion of the trial. He must be thoroughly conversant with the case, and he must, moreover, be a good extemporaneous speaker. In other words, he must not only know the law, but he must possess those requirements which will enable him to tersely, correctly and exactly lay down the law to the jury. There is nothing now to prevent a Judge from instructing the jury as to the law; if the Judge sees fit he can refuse any instructions offered by either side; he can have them in his own hand writing, if he pleases, in his own words and in his own way in the first instance, and then read to the jury his instructions. it be desirable to avoid the disconnected manner of instructing juries which prevails because of the requirement of the Supreme Court that the instructions should embrace the several propositions of law, and because of the practice which has grown up and because of the fear on the part of the bar that if a good instruction is refused the Supreme Court may say that it is properly refused because it was argumentative-I say if it is desirable to avoid that, then let the Judge prepare his charge in writing; that will be a good thing for him to do. Because there is a great difference, as we all know, and the gentlemen who have been upon either the Appellate bench or the Supreme bench well know it-because I have heard them, a great many of them, so express it-there is a great difference between making a statement as to what the law is, and putting it down deliberately in black and white. A difference between making a statement as to what the law is, and putting it down deliberately in black and white. A loose statement is more apt to be incorrect than the statement carefully written down by the Judge. So that a Judge can instruct a jury, and he can instruct it in his own way. He can tell them what are the issues in the case, and that is a thing that at least in this county not one jury in twenty ever knew from the court. I don't know how it is in the State at large. I have known counties where the same trouble existed. He can tell them what the issues are; he can tell them what the law applicable to those issues is, and he can do it in writing. Of course, the answer is that it takes time,

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and they haven't time; that is the trouble, that is the trouble, we want time. I think we have the time, but we don't take the time in this city to try law suits as they should be tried. It isn't, perhaps, the fault of the Judges, because the man who calls his calendar through and decides half the cases wrong, gets the credit, as against the man who only calls half his calendar and decides every case right. Speed is what we need in Chicago. Speed is the thing that is demanded in Chicago. Wherever you want to go you must go quickly, in Chicago; if you run over half a dozen men, women and children in getting there, you must get there, and get there quickly, and the same thing prevails in the courts. The idea is speed. Now, in my judgment, it would be better to go more slowly, to proceed with more deliberation, and proceed more correctly and more in conformity with the law. It would entail labor upon the court, that is true, but that is exactly what he is paid for, as I understand it. I have heard it said of Judges that they didn't take the position for the work that was in it--but I don't believe that rule applies to all, as a rule. It would entail more labor upon the Judge, but he would be better satisfied. There would be a more sure, a more speedy attainment of justice in the end.

As to the Judge being allowed to sum up as to the facts, I agree now with the general proposition laid down by the first speaker. I don't agree with everything the first speaker said, and I don't think any man on top of earth will be found who does agree with everything that he said, but there are a great many things he said which do meet with my approval, and I think will meet with the approval of more, as his remarks are more carefully considered. The Judge, in summing up as to the facts, has it within his power to influence the jury in a manner and to a degree that nobody else possesses. He speaks ex cathedra; the jury are apt, from an intonation of his voice, from his manner even, to get an idea that he is upon one side or the other of the case-even where the Judge is honest, where he is not prejudiced, where he is absolutely fair, that may happen. Where he is not honest, where he is prejudiced, where he has an undue sympathy, it is almost sure to happen. Now, I know it isn't a pleasant thing to say that all the Judges are not superlatively honest-that they are not entirely without prejudice. It is not pleasant to say that they are sometimes unduly moved by sympathy and sometimes