ADDRESS OF THE PRESIDENT

S. S. GREGORY

OF CHICAGO, ILLINOIS

Gentlemen of the American Bar Association:

It is quite obvious that we live in a time of much political and governmental activity. No doubt the importance and gravity of controversy is often exaggerated by those who participate in it. In the prospective of history, political and popular conflict loses somewhat of that sharp outline and aspect of almost revolutionary violence, which it wears while the battle is on. Still, making all due allowances, when we reflect that two amendments to our national constitution are now apparently soon to be adopted; when we consider the radical changes in their organic law, already secured in several states and contemplated in others; when we remember the marked innovations in political methods, accomplished by the direct primary extended this year for the first time to the selection of presidential candidates; it is not necessary to look beyond the extensive confines of our own land, nor to consider changes elsewhere, scarcely less significant, to establish the proposition that we live in an age of political revolution.

It has often been remarked by publicists that the jurisprudence of a nation is far behind its civilization in other respects; and such an observation is attributed to de Beccaria. This is sometimes true; but progress in any direction is seldom steady and

consistent.

Now we seem to have reached a time when the very constitution and frame of our government is under critical examination. The necessity for those safeguards in administration which have been deemed essential to the security of rights to life, to liberty and to property, is called in question. The progressive tide, staid by constitutional barriers, threatens now to sweep them all away; to spread itself widely over field and valley, carrying with

it old forms, old institutions and old ideas, bringing in its train, according to contending views, either devastation or blessing, but concededly involving sweeping and radical change.

And so in legislation, state and federal, as well as in the domain of constitutional law, we find abundant illustration of the temper of the time.

There are now forty-eight states in the American union. In view of their enormous legislative output, though relatively small this year, owing to the fact that there have been legislative sessions only in twenty-two states, some of them exceedingly brief, it is not practicable, within the proper limits of an address of this character to review the legislation of each state.

I shall, therefore, content myself with some comment upon Congressional action and some discussion of the radical constitutional changes accomplished and in contemplation in the several states, with reference to a few state statutes, which seem to possess more than ordinary significance, leaving to the usual appendix more specific reference to state legislation which, however, can be but little more than a kind of legislative index to such special statutes as have seemed to be worthy of mention.

There is one topic to which I wish to refer, in which I believe this Association, as the great representative and national body of the profession, is deeply concerned.

At our last annual meeting, we were all gratified at the attendance of the President of the United States, and much interested in his address to us. No doubt you all remember that on this occasion he referred to the then pending treaties of arbitration, signed by the representatives of Great Britain and France, respectively, and the representatives of this country, which, in effect, provided that differences thereafter arising between the signatory powers, which it had not been possible to adjust by diplomacy, and which were justiciable in their nature, by reason of being susceptible of decision by the application of the principles of law or equity, should be submitted to the permanent court of arbitration established at the Hague, or to some other arbitral tribunal.

In these treaties there were also provisions establishing a joint commission of inquiry, to which, upon the request of either

party, should be referred for investigation, any controversy between the parties within the scope of the treaty before such controversy had been submitted to arbitration, and which should report upon the particular questions referred to it; and stipulating also that where the parties disagreed as to whether differences were subject to arbitration, that question should be submitted to this commission, and if all or all but one of the members of the commission reported that they were, they should be referred to arbitration accordingly.

The Senate declined to ratify these conventions.

I am not aware that this Association has ever expressed itself upon the expediency and propriety of these international agreements. I speak, therefore, only for myself in saying that, in my opinion, they were dictated and inspired by a high and sincere purpose to promote peace and good will between the nations of the earth, and to provide a scheme by which points of difference, arising between the contracting governments, might be wisely and justly decided in a manner entirely honorable to both parties and without the possibility of war and its attendant miseries.

For my part, I feel the most sincere regret that these treaties were not ratified by the Senate of the United States; and I think the members of this Association, as well as the people at large, are deeply indebted to the President for his sincere and earnest efforts thus to promote the great cause of international peace.

I think also that the course of the President in terminating, at the expiration of the current year, the treaty of commerce and navigation between this country and Russia, concluded December 18, 1832, was required by the exigency of the situation.

It is, of course, a serious matter to do anything which may interrupt the friendly relations existing between two great powers; but the persistent disregard of the rights of American citizens under this treaty and general international usage, and the entire want of such international comity as should mark the treatment by one power of the citizens of another within its borders, were such as to leave the President no alternative consistent with a proper regard for what is due to this nation in its relations with other powers.

Notice thus given by the President was ratified by joint resolution of the Senate and House of Representatives, approved December 21, 1911.

Probably the most significant act of the present Congress was the adoption of a joint resolution proposing to the states an amendment to the constitution securing the election of members of the Senate by the vote respectively of the electors of the several states.

By the provisions of this resolution, it is proposed that in lieu of the first paragraph of Section 3, Article 1 of the Constitution relating to the Senate and the election of Senators by the legislatures of the several states; and in lieu of so much of paragraph 2 of that section as relates to the filling of vacancies, there should be substituted the following:

"The Senate of the United States shall be constituted of two Senators from each state, elected by the people thereof, for six years, and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.

"When vacancies happen in the representation of any state in the Senate, the executive authority of said state shall issue writs of election to fill such vacancies; provided that the legislature of any state may empower the executive thereof to make temporary appointment until the people fill the vacancy by election as the legislature may direct."

There is added, what would seem to be a superfluous clause, that the amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes effective.

This involves a very radical change in our system of government. It is true that should this proposal be adopted, each state would still elect its Senators. Thus in the constitution of the Senate, what Hamilton referred to as the federal principle would be preserved to this extent; but on the other hand all distinction between the method of electing members of the House of Representatives and Senators would be abrogated, except that the former would still be elected by popular vote in such districts as the state might see fit to establish, while Senators would be voted for by the voters of the entire state.

It was supposed when the constitution was adopted that, by analogy to the English Constitution, it was desirable to have a separate legislative body, the members of which should have a longer tenure than those of the more popular House, and should be elected by a method which would render them less immediately responsible to the people than if elected by popular vote.

The method of the election of Senators was considerably discussed in the Constitutional Convention. James Wilson of Pennsylvania argued strongly and persistently even then for their election by the people. He was, however, opposed by Hamilton and indeed by nearly all the delegates.

General popular sentiment has been tending towards such an amendment for some years.

By state provision for advisory vote as to the election of Senators in Oregon, Nevada, Nebraska, Idaho, California, Colorado, Arizona, Kansas, Minnesota, Ohio, Montana, New Jersey, South Dakota, Iowa and a number of other states, a method somewhat similar to that proposed by the pending amendment has been adopted in each of those states, although, of course, it lacks the sanction of law to some extent. In most, if not all, of the states of the south it has for some years been customary to vote for candidates for Senator at a state primary.

It may be doubted, however, whether any one of these states, or perhaps whether all of them together, by their adherence to this scheme, have contributed so much to the proposal of this amendment and the general popular favor with which it has been received, as did the legislature of the State of Illinois, in disregarding a somewhat similar advisory expression by the voters of the majority party in that state; and, under circumstances too painful and too recent to warrant more particular statement, electing to the Senate of the United States a man whose election to that body has just been, by an overwhelming majority of Senators, declared to be void.

It is precisely this kind of gross abuse of power and dereliction in duty by representatives to their constituents, which has contributed so largely to the failure of representative government and destroyed the confidence of the American people in the entire representative system.