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amendment could be adopted, I think we should take “The effect of these amendments is absolutely to a step backwards in the direction of requiring, or at nullify this waiver and consent, and to abrogate a least authorizing, the making of findings of fact by vital and most important part of the contract of a trial court or a referee, in place of the short form insurance — important to the insured as well as to of decision which is now authorized, and which the the insurer for the waiver and consent enable him Court of Appeals has held to be equivalent to a gen- to get a better contract than he otherwise could get. eral verdict, and to import a finding in favor of the Insurance companies are not in business for their successful party on every question of fact involved health, and, if they cannot have the opportunity of in the case, whether or not supported by any evi- proving the truth where they have been imposed on, dence. I would recommend the amendment of sec- they are sure to average up the loss thereby entailed tion 1022 of the Code of Civil Procedure, so as to by making all insurance more expensive in other provide that the trial court or referee may make a ways. short and concise decision, in which, however, he "The amendments of 1891 and 1899 should be shall state such facts as he has found, which he promptly repealed, and section 836 should be restored deems material and necessary to his conclusions of in this particular, as it was amended in 1877, so as to law, and he shall not be considered to have found enable the parties to waive the physician's privilege any other facts. I would also amend section 19 of when and as they please, and to give due effect to the Code, so as to provide that only those facts which their contracts as made. To enforce the amendare affirmatively found by the trial court shall be con- ments refered to enables the beneficiary to repudiate sidered to have been affirmed by the Appellate a material part of his contract unfavorable to himDivision."
self, while retaining the benefit of that part which is
to his advantage. This is unconscionable and imWAIVER OF PHYSICIANS' PRIVILEGE,
moral, for he has obtained a better contract by reaJohn DeWitt Peltz, of Albany, read a paper under son of the waiver which it contains than he otherwise the title of “Some Needed Amendments to the Code would have had, and the law should give effect to all Regarding the Waiver of Physicians' Privilege.” parts of the contract. The amendments do away He said: “The present restrictions upon the right by an arbitrary statute, having no sound reason to of the patient to waive, to which I am about to refer, uphold it, with an inherent right which existed indetake away a right which originally existed independ- pendent of any statute. The amendment made to the ent of any statute.
section in 1892 as to attorneys who are witnesses to “The right to waive was first provided for by a will, and that made in 1893 as to evidence in damstatute by section 830 of the Code of 1876, which read age cases, seem to be unobjectionable. as follows:
This paper is not intended as a special plea for “• The last three sections (referring to the statu- the life insurance companies. They are quite capatory provisions privileging testimony as to informa- ble of taking care of themselves. tion received by physicians, clergymen and attor
“I have aimed simply to call attention to what neys) apply to every examination of a person as a
seems to me to be a gross and senseless injustice in witness, unless the person confessing, the patient or the present provisions of the Code on this subject, the client, as the case requires, is present or repre- as I have found it to exist in my own practice.” sented by counsel and does not object to the The third paper read was “Interesting Features of testimony.'
German Law," by Rudolf Dulon, Esq., of New York “In 1877 the section was amended so as to read city. as follows:
The association adjourned to meet at 8 P. m. in the “'The last three sections apply to any examination assembly chamber. of a person as a witness, unless the provisions In the assembly chamber on Tuesday night the thereof are expressly waived by the person confess- association continued its annual session, the speakers ing, the patient or the client.'
being his excellency, Jules Martin Cambon, LL. D., The wording of the section in question so re- ambassador from France to the United States, and mained until 1891, and it was held by the Court of Hon. James M. Beck, assistant United States attorAppeals that, as it then stood, the patient might ney-general. Invitations had been sent out by the waive at any time, and the waiver would be effectual association and by the Historical Society to all its whenever thereafter produced (Foley v. Royal Ar- members, and the great chamber was filled with a canum, 151 N. Y. 196).
brilliant and representative audience. " It is my contention that section 836 should have Ambassador Cambon was introduced by President been allowed to remain as it was after the amend- Hornblower. His address on “Relations between ment of 1877 and as construed by the Foley case. Diplomacy and Public and Private Law," was delivThe subsequent amendments of 1891 and 1900, incon- ered in French, but the audience followed easily by sistent with the origin of, and reason for, the rule as aid of printed copies having the French on one side to waiver, are clearly illogical and without good and the English translation on the opposite page. reason for existence, and the section should be re- | The following extracts are taken from the translastored so as to read as amended in 1877.
conflicts threatening to arise between the nations. The subject of M. Cambon's address was “The
I take pleasure here in rendering homage to my colRelations of Diplomacy to the Development of Inter- league and friend, Lord Pauncefote, who was one of national Law, Public and Private." He said, in the promoters of arbitration between States and who
took so active a part in this conference at The part :
Hague. “There are few callings in this world which are
“Finally, The Hague conference has decided that more misunderstood by the public than that of a
an offer of mediation on the part of one or of several diplomat. It is readily assumed by a number of per- foreign powers, in a case of impending war between sons that ambassadors are but the official representa- ' two nations, should never be considered as an untives of sovereigns or of republics, appointed to
friendly act. In moments of crisis, with the war on all occasions of international courtesy. clouds gathering, patriotism becomes sensitive, and Others, on the contrary, seem to fancy that the
we have seen nations looking with distrust, not to affairs of this world are set in motion by mysterious say taking offense, at friendly interventions which springs of action, and that the nations are pitted sought to avert the rupture. The duty of diplomacy, against one another in a sort of never-ending con
which personifies the spirit of society among nations, spiracy; that, consequently, diplomacy, in its essence, is but intrigue, pure and simple. It would be diffi- it was so proclaimed by The Hague conference
was on the contrary - and we must be gratified that cult to conceive a grosser error. The Prince of leave nothing undone to prevent war before it broke Talleyrand, a man who was perhaps the most illus- out between friendly powers, just as it is likewise its trious diplomat of the last century, and who duty to do everything, once war has been declared, more than any other combated these mistaken no
to shorten its duration and to attenuate its horrors. tions, said, in the last address which he delivered
" Furthermore, war and peace are not the only before the Academy of Moral and Political Sciences questions arising between States. As civilization in Paris, on March 3, 1838: ‘Diplomacy is not a
progresses, the ties which bind nations, as well as science based on duplicity and cunning. If good men, together, become more complex, and thus it faith is anywhere a requisite, it is particularly so in is that for half a century, diplomacy has been occupolitical transactions, for on it the latter depend for pied in concluding a number of treaties, which contheir solidity and their lasting effectiveness. Re
stitute temporary laws between all or a number of serve has been confounded with cunning. Good
civilized States. Faith never authorizes cunning, whilst it admits of
"I shall cite the postal and telegraphic convenreserve; and the peculiar characteristic of reserve
tions, those which created a monetary union between is that it increases confidence.'
various powers and those which aim at the protecting “The Prince of Talleyrand knew better than any of industrial, commercial, literary or artistic rights. one else what is calculated to ensure the prestige and "And here we enter upon a new order of questions, authority of a nation's representatives, and the part I mean those which concern private interests and played by him in the history of the world must in the relations between nations as to the application of spire confidence in the principles of conduct laid their private laws to foreigners. down by him for the guidance of diplomats. The role of diplomacy, therefore, is not that usually
ROUSSEAU AND HIS SCHOOL. ascribed to it by the uninitiated; and I shall attempt
a dream to suppose, as had supposed to define it for you to-day.”
Rousseau and his school in the eighteenth century, The speaker then traced the development of diplo- that man was a sort of purely reasoning being, idenmacy up to the present day, and continued :
tical in all countries, to whom might be applied uni“And now, quite recently, we heard the conference versal rules drawn not from experience and tradition, at The Hague proclaim a few principles the full por- but from the theories of philosophers. Pascal had tent of which, perhaps, is not altogether understood justly declared : ‘There is nothing, whether just or at this date, but which little by little, are destined to unjust, which does not change in nature with a become engraved on the conscience of humanity. change of climate. Three degrees elevation from
the pole upset the whole of jurisprudence.' NAVAL WARFARE A PROTECTION.
"And Montesquieu thought like Pascal when he " It has extended to naval warfare the protection wrote: 'It is essential that laws be well adapted to thrown about the wounded by the convention at the country for which they are made, that only by Geneva; it has specified, and, therefore, restricted, the greatest chance could those of one nation be suitthe rights of belligerents in land operations. It has able for another.' decided that the choice of means of inflicting harm “Hence, while we are free to admit common rules on an enemy is not unlimited, and it has named a in the domain of public law, we are forced to acfew which it stamped with condemnation. It has set knowledge that nothing is more mutable than private a safeguard around the population's interests within law. a territory occupied by the enemy. It has estab- * The role of diplomacy here is to understand the lished a permanent arbitration tribunal, thus afford- divergence of these laws, which correspond to the ing a regular and peaceful means of settlement of all I difference in manners, to seek to reconcile these varying laws and thus to endeavor to protect the rights of has given both a vital and tragic interest. While the private parties even in a foreign land.
subject is largely political in its nature and appeals “It may be said with truth that in certain coun- more to the discretion of the lawmaker than to the tries the very mode of their organization creates at wisdom of the law interpreter, yet it has a peculiar times unexpected obstacles to the carrying out of interest for the members of our profession, not only international agreements; and, if I may here be per- because the remedy must to some extent be found mitted to make a suggestion regarding the United in the courts of law, but because anarchy and law States, I beg to call to your attention how the indi- are the very antipodes of each other. The law holds, vidual rights of the States, which make up the United in the language of the noble founder of my State, States, at times complicate the task of the govern- that ‘that country is free to the people under it where ment at Washington in its relations with foreign the laws rule and the people are a party to those powers. General treaties concluded with the United laws.' The very essence of anarchy is opposition to States have been found to be but partly enforceable all government whatever and the absence of all law. owing to the peculiar legislation of certain States. The true anarchist follows in the lead of Jack Cade,
as Shakespeare drew that redoubtable rebel, in desirFOREIGN POWERS' Position.
ing to abolish all property, destroy all money, sub*Thus are foreign powers brought face to face vert.all law and order; and you will remember that with this dilemma - either not to treat at all, or to Jack Cade so far recognized the intimate connection negotiate with one who is only partially qualified.
of our profession with the maintenance of law that " It seems that since the States can have no indi- the work of destruction was to commence with the vidual intercourse with foreign powers, the federal lawyers, an unconscious but a deserved compliment, government, which alone possesses the right to nego- for the lawyer, when he is sacredly mindful of his tiate on their behalf, should be empowered to see to high calling, is the chief exponent of law. Our felthe complete execution of the agreements which it low-men may therefore look with reason to our prohas made.
fession to suggest some means to stamp out this “We must aim at destroying all those barriers be- hydra-headed monster of murderous malevolence. tween civilized nations which maintain between them
“ The task is no easy one, and, indeed, may be a certain indefinable spirit of latent hostility — a lin- regarded as a labor of Hercules. It is more difficult gering vestige of the old barbarism. In times of than the problem of suppressing other crimes, as the war we must seek to improve the condition of pri- public interests require a larger measure of successvate individuals to a still greater degree than has ful results. Nearly all criminal laws are partly inefbeen done by The Hague conference. Private prop- fective to prevent the perpetration of crimes, for erty should receive the same protection in naval as in otherwise there would be little use for the criminal land warfare, and you will, I am sure, agree with me courts; that there are murders and thefts, notwiththat the maintenance of prize laws takes from the standing the existence of drastic punishments upon combatants that attribute which does them the most
our Penal Codes, is no necessary argument against honor, that of disinterested sacrifice in their country's the efficacy of our Criminal Code. Their deterrent
effect is beyond reasonable dispute, notwithstanding “Much still remains to be done; each day sees the the numerous instances in which their penalties have nations grow more considerate of one another in had no terror for the criminal. An approximation their mutual intercourse. It is a notable fact that, to prevention is all that reasonable men expect. But after the recent happenings in China, France returned the safety of society demands larger results in the to the Chinese government the works of art which solution of the problem now confronting us, nothad been shipped to her, while President Roosevelt withstanding that its inherent difficulty is infinitely has just restored to China a sum of $376,000 which greater. Absolute prevention and not punishment is had been seized in Tientsin. Such generous proceed- the supreme need of the hour. Attempts to terrorize ings would have greatly astonished our ancestors. existing society by the destruction of its chief rulers The function of diplomacy is to bring forth from the must cease, for the death of a chief magistrate may universal conscience those common principles which be accompanied by consequences so disastrous that no the onward march of civilization makes it possible to punishment of the offender can bear any adequate introduce into the practical intercourse of nations. relation to the gravity of the offense. Our profesIt is in this manner that international law, public and sion, which knows most of the practical difficulties private, is evolved and determined, while juriscon- attending the administration of criminal law, must sults later on reduce it to specific rules.”
give its best, energies and its highest wisdom, so that The French ambassador was followed by Assistant the venomous snake can be killed, not scotched. Attorney-General Beck, who had taken the exceed
CONCENTRATED ENERGIES. ingly timely subject of “Suppression of Anarchy."
"If the experience of the past suggests anything, “SUPPRESSION OF ANARCHY."
the task is one of exceptional difficulty. However “You have invited me to speak to you upon the he may approach it, the thoughtful man is apt to find suppression of anarchy, a theme which a recent oc- himself in a blind alley of negative results. Other currence within the borders of your Empire State | nations have concentrated their best energies and
highest wisdom to compass the destruction of this same reason compelled the conference to abandon all covenant with hell, but without any adequate or even attempt to secure common legislation, and to content satisfactory results. Attempts upon the lives of rul- itself by purely administrative measures, such as an ers have seemed to multiply with strenuous efforts to agreement for the mutual surrender of fugitive anprevent them.
archists and the creation of a bureau of information. "Notwithstanding the strenuous efforts of The latter was, in my judgment, a suggestion of European countries, aided by a certain measure of great value. With reasonable diligence on the part international co-operation, the last three years have of the police authorities of the different civilized witnessed the assassination of a Spanish prime min- countries, and the prompt and full exchange of inister, an Italian king, an Austrian empress and an formation between them through the medium of a American president, and unsuccessful attempts upon common bureau, it ought not to be impossible to trace the lives of the Shah of Persia, the Prince of Wales the movements of avowed anarchists, and to prevent and the Emperor William.
their secret assemblies to a great extent. The stern "Indeed, the barren results heretofore accom- necessities of the situation will probably compel such plished have led many thoughtful men to apply to co-operation on the part of all civilized nations in the forcible suppression of anarchistic doctrines the the near future. Already the call has been made for maxim which Lord Bacon used with reference to another conference. In my judgment, our governthe censorship of the press, that 'the punishing of ment should abandon its policy of isolation in this wits enhances their authority, and a forbidden writ- respect and join hands with other governments in the ing is thought to be a certain spark of truth that suppression of this evil. flies up in the faces of them that seek to tread it out.' “A vital need is to increase both the efficiency and Scotland Yard is said to feel that England is safer the powers of our secret service. Far from deservwith an open propaganda of anarchy than one con- ing the adverse criticism to which it has recently ducted in the secrecy to which a policy of repression been subjected, this division of the treasury departis apt to give rise.
ment, as I have some personal reason for knowing, “ The peculiar difficulty of the problem is due to is an admirable body of men and at its head is a the fact that a man who is willing to die for the detective of exceptional ability and courage. Never so-called principle of anarchy cannot be awed by any in its history has it done more valuable work than laws however drastic. He is a fanatic, and indiffer- under Chief Wilkie. But the limitations of his buence to consequences is the very essence of fanati- reau are that its only funds consist of an annual apcism. The criminal law only appeals to a man propriation of $100,000, and this, by the terms of the through his hopes or fears, and to one whose per appropriation, is confined to the detection of counsonal welfare is a matter of some concern. It has terfeiting. Not only is it without any means to no appeal to one who wishes to 'run amuck.' To the defend the life of the president, but it is equally man who is indifferent to disgrace, imprisonment and without legal power. It is a fact that not one cent death, the penal provisions of the Criminal Code have has ever been specifically appropriated for the prolittle meaning
tection of the president, and the services of the "Indeed, it is difficult to escape the conclusion that secret service have hitherto been an accommodation, criminal anarchists, while not technically insane, are from a legal standpoint, on their part. The funds yet mentally abnormal. They are mental as well as at their disposal are absurdly inadequate when it is moral perverts.
recalled that the service is obliged to protect the
purity of the coin in a country as great in area and SOLUTION OF THE QUESTION.
population as ours. “The solution of this question must, in the last
“In my judgment this division should be given at analysis, rest with the detective rather than with least $250,000 a year in order that its force may be the legislator. Preventive measures of an adminis- largely increased and the very best detective talent trative character will be found the most efficacious, employed. It should have its operatives in each of and an indispensable feature must be international the European capitals and the means to exchange co-operation. As long as these avowed enemies of information with other police authorities throughout all governments and of all society can find a resting this country and the world. The problem is too place in any one, they will be, in these days of tele- serious to debate over dollars and cents. It is not graph and steamship, a menace to all. It was this enough to punish when the crime has been comfact that probably led to an international conference mitted; the public demands prevention rather than which was held in the year 1898 in the city of Rome.
punishment. It was called at the instance of Spain, and its de
PROTECTION OF PRESIDENT. liberations lasted for nearly a month. Fifteen chiefs “Let me suggest, in conclusion, that the people can of police of various countries participated. The fear aid in the protection of their president by giving to that the word 'anarchist’ might be construed to in- his high office the respect which is its just due. It clude political offenders, prevented the United States is the misfortune of our political system that the from taking any part in this conference, and Eng- president is not above and apart from party politics land only did so after much hesitation; and the as is the French chief magistrate, or the English
constitutional ruler, but is a party leader, and, there- Odell, Lieutenant-Governor Woodruff, State Senator fore, the storm centre of all our political conflict, Brackett, Hon. W. K. Townsend, of New Haven; about whose head play the fateful lightning of politi- Joseph A. Lawson, of Albany; Lewis B. Carr, of cal passion. Rarely has any president escaped scur- Albany, and W. J. White, of Montreal. rilous criticism and foul abuse; and no measure what influence the public abuse of Lincoln, Garfield and McKinley had in the death of each. “THE SUBJECTIVE LAW IN RELATION TO, God forbid that I should advocate, in any way, the AND THE JURISPRUDENTIAL SIGNIFIabridgment of the right of free speech or a free press. CANCE OF THE RECENT FRANCHISE The genius of our free institutions requires that TAX LAW." discussion be free. If a citizen be honestly of opinion that the president seeks to subvert the liberties of
A tax upon the franchise of a corporation may be his country, it is not only his privilege but his duty sometimes a hardship upon the corporation, but it is to say so. We have no place in our political institu
certainly a wise exercise of the inherent rights of a tions for the maxim, ‘The king can do no wrong,' sovereignty. From a standpoint of State polity, and the oil of anointing, which was supposed to con- whether that State be monarchical, oligarchical or resecrate the monarch, has not fallen from his head publican in theory, it is still a constitutional exercise to give any peculiar sanctity to the choice of the of sovereign functions. There is nothing particularly people. As any other public servant the president unthinkable in the proposition that the franchise" must give an account of his stewardship, and the of a corporation is something tangibly apart from its manner in which he has discharged his trust must of other property; again, there is nothing particularly necessity in a free country be the subject of fair dis- unthinkable in the proposition that the franchise" cussion. But there is a clear line between criticism
to use the streets and highways for a special purpose and insult. The law may not be able to draw it, but is distinctly differentiated from the “franchise to be men of gentlemanly and patriotic instincts cannot
or the “prohibition not to be ” a corporation. fail to see it. The man who publicly degrades the
The proposition that the franchises of corporations personality of the president and weakens respect for of whatever description are properly classified as his high office makes assassination possible. If this “real property” is practically elementary in conlesson can be learned by the American people, the
cept, jurisprudentially and legally, and yet that they martyred McKinley will not have died in vain. Let
are a special sort of real property, not hitherto by men of every party honor the dead president by statute taxable is self-evident. Why the State of respecting the living. The republic may survive any New York has up to this time failed to avail itself changes in its public servants, and we may, therefore, of its indubitable rights is, perhaps, one of those with added meaning since September last, change
mysteries that the time-honored precedents of lobbythe time-honored prayer ‘God save the United
ists may partly explain. States' to one more necessary
Ex-Senator Hill's astonishment at the language "God save the president!'"
of the legislature in denominating franchises “land,"
real estate," real property,” and yet vesting the RECEPTION AT FORT ORANGE CLUB.
power to tax the same in the State as a sovereignty The exercises in the assembly chamber were over is not only disappointing in a jurist of his reputaat ten o'clock, when the speakers were driven to the tion, but I am afraid quite puerile and strained. Of Fort Orange Club, where the annual reception was
course, the senator would like to forget, possibly for given in their honor. The guests, who included the sake of argument, that ever since the time “when the members of the association and of the club and the memory of man' runneth not to the contrary," the local bar, were presented by Secretary Wadhams. these franchises have been classified as a species of Supper was served in the annex.
real property, to wit, “incorporeal hereditaments" Prior to the exercises in the assembly chamber,
grants," having their very life and essence from Chief Judge Parker, of the Court of Appeals, enter- the
in England, from the sovereign State tained the guests of honor and the officers of the in the United States of America, limitable and deassociation at dinner at his residence on Englewood terminable within constitutional restrictions by the place.
"fons justitiae" and the sovereign State. What does THE BANQUET.
Blackstone say upon this point? In Book II, page 37, The meeting was concluded with the usual banquet section VII, “franchise and liberty are used as at the Ten Eyck. France, England and Canada were synonymous terms, and their definition is a royal represented in the toast list, which included privilege or branch of the king's prerogative, subM. Jules Cambon, the French ambassador; Lord sisting in the hands of the subject. Being, therefore, Justice Davidson, of Montreal, besides the governor derived from the crown, they must arise from the and lieutenant-governor. The retiring president, king's grant, or, in some cases, may be held by preWilliam B. Hornblower, acted as toastmaster. scription, which, as has been frequently said, pre
Among the speakers were M. Cambon, Hon. supposes a grant.” Whatever may be our theory Charles Peers Davidson, of Montreal; Governor to-day of constitutional liberty, the common law in