Page:The Green Bag (1889–1914), Volume 22.pdf/191

 Meeting of the New York State Bar Association vices which it renders, but all testimony of that kind. however essential it may be to a just decision of the case, is after all merely a means to an end. and is not the end itself. . . . The cost of my property and the cost of the railroad‘s property are purely evidential, and are intended to aid us in fulﬁlling the constitutional requirement that the railroad shall pay me a just compensation for my property and that I shall pay the railroad a just compensation for its service. . . . While I do not believe that the Supreme Court has yet found the true rule for measuring justice both to the people and to the railroads, I have never for one moment doubted that it will find it. That great tribunal has erred on more than one occasion, but it has sooner or later always realized and corrected its errors. It is this universal belief in its ultimate wisdom which has given it a char acter enjoyed by no other department of this government and approached by no other tribunal in the history of the world.

At the conclusion of his address, Senator Bailey was unanimously elected an honorary member of the Association. On the second day, features of the morn ing session were the reports of three com mittees, proposing important changes in the laws, and an interesting address by Hon. James F. Tracey of Albany. THE PLEA OF INSANITY

One of the most important reports pre sented during the entire meeting of the Asso ciation came from the Committee on the Com mitment and Discharge of the Criminal In sane.

The

committee, with particular em

phasis on the procedurally monstrous circum stances of the Thaw case, advocated that the criminal insane be made amenable to the criminal law in the same way as sane persons. The following extract from the report out lines the changes in the law recommended by the committee : The insane man is just as dangerous to the community as the sane. In fact, he is more so, for the sane man is to some extent open to the restraints of law, or at least of prudence. The insane man is believed to be under no such re straint, although it might be noted that experience at the insane asylums would seem to show that the insane man is restrained by fear of punishment, as well as the sane. We bind over to keep the peace, and can imprison, if need be, the sane man who threatens violence which he may never do. We acquit as innocent an insane man, who has actually done a deed of violence. Was ever a more horrible mockery? The man who has already demon strated that he is a menace to society is, on the opinion of an expert that he is not likely to mis behave again, allowed to go free. Whereas a man. whose violent words have never actually ripened into deeds. can be laid by the heels. If these views be sound, they could be put into eﬁect with but little change of the statute law.

Replace section 20 of the Penal Code by the follow

175

ing words: "Insanity or other mental deﬁciency shall no longer be a defense against a charge of crime; nor shall it prevent a trial of the accused unless his mental condition is such as to satisfy the court upon its own inquiry that he is unable, by reason thereof. to make proper preparation for his defense." Provide, that if at the time the jury renders the verdict the court has reason to believe that at the time of the commission of the crime the prisoner was insane or aﬂlicted with any mental deﬁciency, it may then defer sentence and cause an inquiry to be made, and if as the result of that inquiry the prisoner is found to have been sane, the court shall then sentence him to be electrocuted or imprisoned in a jail, as the case requires; and if insane, the court shall then sentence him to be confined in the proper state asylum during his life or for a term of years, as the case requires. Thus the insane man's family would be protected from unjust stigma, and society would be protected from him. It may be that the inquiry as to sanity should be made as now by the jury which passes on his guilt. That is a detail. The only point we urge for consideration is, that a man who has done an evil deed ought not to be acquitted. but found guilty, and if insane, should be sentenced to an asylum. Being under sentence, he would have no right to a writ of habcas corpus, and could only be set free by a pardon. Thus the judicial farce. of murderers being acquitted by reason of insanity and set free on account of sanity. would be ended.

The committee reported as its recommen dation that the secretary cause copies of the report to be widely circulated and that an expression of views be requested as to whether insane persons should be made amenable to the criminal law. The resolution was adopted. CONTINGENT FEES

The abuse of the contingent fee was the subject of a frank report by a special com mittee that aroused much interest and dis cussion. The committee states that stronger sentiment than now exists must be created before ﬁtting legislation can be secured. It therefore asked for further time. This is its statement of the situation:-— There is no dispute that the permission granted by the Legislature of 1848 and continued ever since, under which the custom of contingent fees has grown up and ﬂourished. has resulted in grave abuses. Nor is there any dispute that something must be done to lessen those abuses. It is not necessary to rehearse them here, for they were fully set forth in the report of this committee two years ago. No one has denied them. Although it is well known that the practice of unprofessional solicitation is indulged in by many lawyers. who desire to be considered men of standing in the profession, there is not a lawyer from Montauk to Buffalo, even among those who indulge in the prac tice. who will in a body of lawyers stand up and admit that he engages in it. Men who denounce it in public practice it in private. Some will even defend it in others, when not courageous enough to admit doing it themselves.