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amendment could be adopted, I think we should take a step backwards in the direction of requiring, or at least authorizing, the making of findings of fact by a trial court or a referee, in place of the short form of decision which is now authorized, and which the Court of Appeals has held to be equivalent to a general verdict, and to import a finding in favor of the successful party on every question of fact involved in the case, whether or not supported by any evidence. I would recommend the amendment of section 1022 of the Code of Civil Procedure, so as to provide that the trial court or referee may make a short and concise decision, in which, however, he shall state such facts as he has found, which he deems material and necessary to his conclusions of law, and he shall not be considered to have found any other facts. I would also amend section 19 of the Code, so as to provide that only those facts which are affirmatively found by the trial court shall be considered to have been affirmed by the Appellate Division."

WAIVER OF PHYSICIANS' PRIVILEGE,

"The effect of these amendments is absolutely to nullify this waiver and consent, and to abrogate a vital and most important part of the contract of insurance — important to the insured as well as to the insurer - for the waiver and consent enable him to get a better contract than he otherwise could get. Insurance companies are not in business for their health, and, if they cannot have the opportunity of proving the truth where they have been imposed on, they are sure to average up the loss thereby entailed by making all insurance more expensive in other

ways.

"The amendments of 1891 and 1899 should be promptly repealed, and section 836 should be restored in this particular, as it was amended in 1877, so as to enable the parties to waive the physician's privilege when and as they please, and to give due effect to their contracts as made. To enforce the amendments refered to enables the beneficiary to repudiate a material part of his contract unfavorable to himself, while retaining the benefit of that part which is to his advantage. This is unconscionable and immoral, for he has obtained a better contract by reason of the waiver which it contains than he otherwise would have had, and the law should give effect to all

John DeWitt Peltz, of Albany, read a paper under the title of "Some Needed Amendments to the Code Regarding the Waiver of Physicians' Privilege." | parts of the contract. The amendments do away He said: "The present restrictions upon the right of the patient to waive, to which I am about to refer, take away a right which originally existed independent of any statute.

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by an arbitrary statute, having no sound reason to uphold it, with an inherent right which existed independent of any statute. The amendment made to the section in 1892 as to attorneys who are witnesses to a will, and that made in 1893 as to evidence in damage cases, seem to be unobjectionable.

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"In 1877 the section was amended so as to read city. as follows:

"The last three sections apply to any examination of a person as a witness, unless the provisions thereof are expressly waived by the person confessing, the patient or the client.'

"The wording of the section in question so remained until 1891, and it was held by the Court of Appeals that, as it then stood, the patient might waive at any time, and the waiver would be effectual whenever thereafter produced (Foley v. Royal Arcanum, 151 N. Y. 196).

"It is my contention that section 836 should have been allowed to remain as it was after the amendment of 1877 and as construed by the Foley case. The subsequent amendments of 1891 and 1900, inconsistent with the origin of, and reason for, the rule as to waiver, are clearly illogical and without good reason for existence, and the section should be restored so as to read as amended in 1877.

The association adjourned to meet at 8 P. M. in the assembly chamber.

In the assembly chamber on Tuesday night the association continued its annual session, the speakers being his excellency, Jules Martin Cambon, LL. D., ambassador from France to the United States, and Hon. James M. Beck, assistant United States attorney-general. Invitations had been sent out by the association and by the Historical Society to all its members, and the great chamber was filled with a brilliant and representative audience.

Ambassador Cambon was introduced by President Hornblower. His address on "Relations between Diplomacy and Public and Private Law," was delivered in French, but the audience followed easily by aid of printed copies having the French on one side and the English translation on the opposite page. The following extracts are taken from the translation:

AMBASSADOR CAMBON.

conflicts threatening to arise between the nations. I take pleasure here in rendering homage to my col

The subject of M. Cambon's address was "The Relations of Diplomacy to the Development of Inter-league and friend, Lord Pauncefote, who was one of

national Law, Public and Private." He said, in part :

the promoters of arbitration between States and who took so active a part in this conference at The Hague.

"Finally, The Hague conference has decided that an offer of mediation on the part of one or of several foreign powers, in a case of impending war between two nations, should never be considered as an unfriendly act. In moments of crisis, with the war

"There are few callings in this world which are more misunderstood by the public than that of a diplomat. It is readily assumed by a number of persons that ambassadors are but the official representatives of sovereigns or of republics, appointed to serve on all occasions of international courtesy.clouds gathering, patriotism becomes sensitive, and Others, on the contrary, seem to fancy that the affairs of this world are set in motion by mysterious springs of action, and that the nations are pitted against one another in a sort of never-ending conspiracy; that, consequently, diplomacy, in its essence, is but intrigue, pure and simple. It would be difficult to conceive a grosser error. The Prince of Talleyrand, a man who was perhaps the most illustrious diplomat of the last century, and who more than any other combated these mistaken notions, said, in the last address which he delivered

we have seen nations looking with distrust, not to say taking offense, at friendly interventions which sought to avert the rupture. The duty of diplomacy, which personifies the spirit of society among nations, was on the contrary - and we must be gratified that it was so proclaimed by The Hague conference — to leave nothing undone to prevent war before it broke out between friendly powers, just as it is likewise its duty to do everything, once war has been declared,

to shorten its duration and to attenuate its horrors. "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 Faith never authorizes cunning, whilst it admits of reserve; and the peculiar characteristic of reserve

is that it increases confidence.'

"The Prince of Talleyrand knew better than anyone else what is calculated to ensure the prestige and authority of a nation's representatives, and the part played by him in the history of the world must inspire confidence in the principles of conduct laid down by him for the guidance of diplomats. The role of diplomacy, therefore, is not that usually ascribed to it by the uninitiated; and I shall attempt to define it for you to-day."

civilized States.

"I shall cite the postal and telegraphic conventions, those which created a monetary union between various powers and those which aim at the protecting of industrial, commercial, literary or artistic rights.

"And here we enter upon a new order of questions, I mean those which concern private interests and the relations between nations as to the application of their private laws to foreigners.

ROUSSEAU AND HIS SCHOOL.

"It was a dream to suppose, as had supposed 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:

"And now, quite recently, we heard the conference at The Hague proclaim a few principles the full portent of which, perhaps, is not altogether understood at this date, but which little by little, are destined to become engraved on the conscience of humanity.

NAVAL WARFARE A PROTECTION.

"It has extended to naval warfare the protection thrown about the wounded by the convention at Geneva; it has specified, and, therefore, restricted, the rights of belligerents in land operations. It has decided that the choice of means of inflicting harm on an enemy is not unlimited, and it has named a few which it stamped with condemnation. It has set a safeguard around the population's interests within a territory occupied by the enemy. It has established a permanent arbitration tribunal, thus affording a regular and peaceful means of settlement of all

tical in all countries, to whom might be applied universal rules drawn not from experience and tradition, but from the theories of philosophers. Pascal had justly declared: 'There is nothing, whether just or unjust, which does not change in nature with a change of climate. Three degrees elevation from the pole upset the whole of jurisprudence.'

"And Montesquieu thought like Pascal when he wrote: 'It is essential that laws be well adapted to the country for which they are made, that only by the greatest chance could those of one nation be suitable for another.'

"Hence, while we are free to admit common rules in the domain of public law, we are forced to acknowledge that nothing is more mutable than private law.

"The role of diplomacy here is to understand the divergence of these laws, which correspond to the difference in manners, to seek to reconcile these vary

ing 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 owing to the peculiar legislation of certain States.

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"We must aim at destroying all those barriers be

tween civilized nations which maintain between them

a certain indefinable spirit of latent hostility—a lingering vestige of the old barbarism. In times of war we must seek to improve the condition of private individuals to a still greater degree than has been done by The Hague conference. Private property should receive the same protection in naval as in land warfare, and you will, I am sure, agree with me that the maintenance of prize laws takes from the combatants that attribute which does them the most honor, that of disinterested sacrifice in their country's

cause.

"Much still remains to be done; each day sees the nations grow more considerate of one another in their mutual intercourse. It is a notable fact that, after the recent happenings in China, France returned to the Chinese government the works of art which had been shipped to her, while President Roosevelt has just restored to China a sum of $376,000 which had been seized in Tientsin. Such generous proceedings would have greatly astonished our ancestors. The function of diplomacy is to bring forth from the universal conscience those common principles which the onward march of civilization makes it possible to introduce into the practical intercourse of nations. It is in this manner that international law, public and private, is evolved and determined, while jurisconsults later on reduce it to specific rules."

The French ambassador was followed by Assistant Attorney-General Beck, who had taken the exceedingly timely subject of "Suppression of Anarchy."

66 SUPPRESSION OF ANARCHY."

"You have invited me to speak to you upon the suppression of anarchy, a theme which a recent occurrence within the borders of your Empire State

all government whatever and the absence of all law. The true anarchist follows in the lead of Jack Cade, as Shakespeare drew that redoubtable rebel, in desiring to abolish all property, destroy all money, subvert all law and order; and you will remember that Jack Cade so far recognized the intimate connection of our profession with the maintenance of law that the work of destruction was to commence with the lawyers, an unconscious but a deserved compliment, for the lawyer, when he is sacredly mindful of his high calling, is the chief exponent of law. Our fellow-men may therefore look with reason to our profession to suggest some means to stamp out this hydra-headed monster of murderous malevolence.

"The task is no easy one, and, indeed, may be regarded as a labor of Hercules. It is more difficult than the problem of suppressing other crimes, as the public interests require a larger measure of successful results. Nearly all criminal laws are partly ineffective to prevent the perpetration of crimes, for otherwise there would be little use for the criminal courts; that there are murders and thefts, notwithstanding the existence of drastic punishments upon our Penal Codes, is no necessary argument against the efficacy of our Criminal Code. Their deterrent effect is beyond reasonable dispute, notwithstanding the numerous instances in which their penalties have had no terror for the criminal. An approximation to prevention is all that reasonable men expect. But the safety of society demands larger results in the solution of the problem now confronting us, notwithstanding that its inherent difficulty is infinitely greater. Absolute prevention and not punishment is the supreme need of the hour. Attempts to terrorize existing society by the destruction of its chief rulers must cease, for the death of a chief magistrate may be accompanied by consequences so disastrous that no punishment of the offender can bear any adequate relation to the gravity of the offense. Our profession, which knows most of the practical difficulties attending the administration of criminal law, must give its best energies and its highest wisdom, so that the venomous snake can be killed, not scotched.

CONCENTRATED ENERGIES.

"If the experience of the past suggests anything, the task is one of exceptional difficulty. However he may approach it, the thoughtful man is apt to find himself in a blind alley of negative results. Other nations have concentrated their best energies and

highest wisdom to compass the destruction of this covenant with hell, but without any adequate or even satisfactory results. Attempts upon the lives of rulers have seemed to multiply with strenuous efforts to prevent them.

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"Notwithstanding

the strenuous efforts of European countries, aided by a certain measure of international co-operation, the last three years have witnessed the assassination of a Spanish prime minister, an Italian king, an Austrian empress and an American president, and unsuccessful attempts upon the lives of the Shah of Persia, the Prince of Wales and the Emperor William.

"Indeed, the barren results heretofore accomplished have led many thoughtful men to apply to the forcible suppression of anarchistic doctrines the maxim which Lord Bacon used with reference to the censorship of the press, that 'the punishing of wits enhances their authority, and a forbidden writing is thought to be a certain spark of truth that flies up in the faces of them that seek to tread it out.' Scotland Yard is said to feel that England is safer with an open propaganda of anarchy than one conducted in the secrecy to which a policy of repression is apt to give rise.

'The peculiar difficulty of the problem is due to the fact that a man who is willing to die for the so-called principle of anarchy cannot be awed by any laws however drastic. He is a fanatic, and indifference to consequences is the very essence of fanaticism. The criminal law only appeals to a man through his hopes or fears, and to one whose personal welfare is a matter of some concern. It has no appeal to one who wishes to 'run amuck.' To the man who is indifferent to disgrace, imprisonment and death, the penal provisions of the Criminal Code have little meaning.

"Indeed, it is difficult to escape the conclusion that criminal anarchists, while not technically insane, are yet mentally abnormal. They are mental as well as moral perverts.

SOLUTION OF THE QUESTION.

same reason compelled the conference to abandon all attempt to secure common legislation, and to content itself by purely administrative measures, such as an agreement for the mutual surrender of fugitive anarchists and the creation of a bureau of information. The latter was, in my judgment, a suggestion of great value. With reasonable diligence on the part of the police authorities of the different civilized countries, and the prompt and full exchange of information between them through the medium of a common bureau, it ought not to be impossible to trace the movements of avowed anarchists, and to prevent their secret assemblies to a great extent. The stern necessities of the situation will probably compel such co-operation on the part of all civilized nations in the near future. Already the call has been made for another conference. In my judgment, our government should abandon its policy of isolation in this respect and join hands with other governments in the suppression of this evil.

"A vital need is to increase both the efficiency and the powers of our secret service. Far from deserving the adverse criticism to which it has recently been subjected, this division of the treasury department, as I have some personal reason for knowing, is an admirable body of men and at its head is a detective of exceptional ability and courage. Never in its history has it done more valuable work than under Chief Wilkie. But the limitations of his bureau are that its only funds consist of an annual appropriation of $100,000, and this, by the terms of the appropriation, is confined to the detection of counterfeiting. Not only is it without any means to defend the life of the president, but it is equally without legal power. It is a fact that not one cent has ever been specifically appropriated for the protection of the president, and the services of the secret service have hitherto been an accommodation, from a legal standpoint, on their part. The funds at their disposal are absurdly inadequate when it is recalled that the service is obliged to protect the purity of the coin in a country as great in area and population as ours.

"In my judgment this division should be given at least $250,000 a year in order that its force may be largely increased and the very best detective talent employed. It should have its operatives in each of the European capitals and the means to exchange information with other police authorities throughout this country and the world. The problem is too serious to debate over dollars and cents. It is not enough to punish when the crime has been committed; the public demands prevention rather than punishment.

"The solution of this question must, in the last analysis, rest with the detective rather than with the legislator. Preventive measures of an administrative character will be found the most efficacious, and an indispensable feature must be international co-operation. As long as these avowed enemies of all governments and of all society can find a resting place in any one, they will be, in these days of telegraph and steamship, a menace to all. It was this fact that probably led to an international conference which was held in the year 1898 in the city of Rome. It was called at the instance of Spain, and its deliberations 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

PROTECTION OF PRESIDENT.

constitutional ruler, but is a party leader, and, therefore, the storm centre of all our political conflict, about whose head play the fateful lightning of political passion. Rarely has any president escaped scurrilous criticism and foul abuse; and no one can measure what influence the public abuse of Lincoln, Garfield and McKinley had in the death of each. God forbid that I should advocate, in any way, the abridgment of the right of free speech or a free press. The genius of our free institutions requires that discussion be free. If a citizen be honestly of opinion that the president seeks to subvert the liberties of his country, it is not only his privilege but his duty to say so. We have no place in our political institutions for the maxim, 'The king can do no wrong, and the oil of anointing, which was supposed to consecrate the monarch, has not fallen from his head to give any peculiar sanctity to the choice of the people. As any other public servant the president must give an account of his stewardship, and the manner in which he has discharged his trust must of necessity in a free country be the subject of fair discussion. But there is a clear line between criticism and insult. The law may not be able to draw it, but men of gentlemanly and patriotic instincts cannot fail to see it. The man who publicly degrades the personality of the president and weakens respect for his high office makes assassination possible. If this lesson can be learned by the American people, the

martyred McKinley will not have died in vain. Let men of every party honor the dead president by respecting the living. The republic may survive any changes in its public servants, and we may, therefore, with added meaning since September last, change the time-honored prayer 'God save the United States' to one more necessary "God save the president!''

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RECEPTION AT FORT ORANGE CLUB. The exercises in the assembly chamber were over at ten o'clock, when the speakers were driven to the Fort Orange Club, where the annual reception was given in their honor. The guests, who included the members of the association and of the club and the local bar, were presented by Secretary Wadhams. Supper was served in the annex.

Prior to the exercises in the assembly chamber, Chief Judge Parker, of the Court of Appeals, entertained the guests of honor and the officers of the association at dinner at his residence on Englewood place.

THE BANQUET.

The meeting was concluded with the usual banquet at the Ten Eyck. France, England and Canada were represented in the toast list, which included M. Jules Cambon, the French ambassador; Lord Justice Davidson, of Montreal, besides the governor and lieutenant-governor. The retiring president, William B. Hornblower, acted as toastmaster. Among the speakers were M. Cambon, Hon. Charles Peers Davidson, of Montreal; Governor

Odell, Lieutenant-Governor Woodruff, State Senator Brackett, Hon. W. K. Townsend, of New Haven; Joseph A. Lawson, of Albany; Lewis B. Carr, of Albany, and W. J. White, of Montreal.

"THE SUBJECTIVE LAW IN RELATION TO, AND THE JURISPRUDENTIAL SIGNIFICANCE OF, THE RECENT FRANCHISE TAX LAW."

A tax upon the franchise of a corporation may be sometimes a hardship upon the corporation, but it is certainly a wise exercise of the inherent rights of a sovereignty. From a standpoint of State polity, whether that State be monarchical, oligarchical or re

franchise"

publican in theory, it is still a constitutional exercise of sovereign functions. There is nothing particularly unthinkable in the proposition that the “ of a corporation is something tangibly apart from its other property; again, there is nothing particularly unthinkable in the proposition that the franchise" to use the streets and highways for a special purpose is distinctly differentiated from the "franchise to be" or the "prohibition not to be" a corporation.

The proposition that the franchises of corporations of whatever description are properly classified as "real property" is practically elementary in concept, jurisprudentially and legally, and yet that they are a special sort of real property, not hitherto by statute taxable is self-evident. Why the State of New York has up to this time failed to avail itself of its indubitable rights is, perhaps, one of those mysteries that the time-honored precedents of lobbyists may partly explain.

Ex-Senator Hill's astonishment at the language of the legislature in denominating franchises "land," real estate," "real property," and yet vesting the power to tax the same in the State as a sovereignty is not only disappointing in a jurist of his reputation, but I am afraid quite puerile and strained. Of course, the senator would like to forget, possibly for the sake of argument, that ever since the time "when the memory of man runneth not to the contrary," these franchises have been classified as a species of real property, to wit, "incorporeal hereditaments" grants," having their very life and essence from

or

the 99 crown in England, from the sovereign State in the United States of America, limitable and determinable within constitutional restrictions by the "fons justitiae" and the sovereign State. What does Blackstone say upon this point? In Book II, page 37, section VII, "franchise and liberty are used as synonymous terms, and their definition is a royal privilege or branch of the king's prerogative, subsisting in the hands of the subject. Being, therefore, derived from the crown, they must arise from the king's grant, or, in some cases, may be held by prescription, which, as has been frequently said, presupposes a grant." Whatever may be our theory to-day of constitutional liberty, the common law in

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