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The address was then read.
The next business in order consists of the reports from standing committees. The first committee of the list is the Committee on Jurisprudence and Law Reform.
Henry Hitchcock, of Missouri:
In the absence of Mr. Baldwin, the Chairman of the Committee, I have been requested by him to present the report. These subjects were referred to the Committee : A resolution referring to a Federal Code of Procedure ; a resolution concerning the publication of State Reports, and a resolution referring to Federal Courts of Arbitration. The report of the Committee on these subjects I have in my hand for presentation.
Mr. Hitchcock then read the report of the Committee on Jurisprudence and Law Reform concerning a Federal Code of Procedure.
Mr. Hitchcock then read the report of the Committee on Jurisprudence and Law Reform concerning the publication of State Reports.
Mr. Hitchcock then read the report of the Committee on Jurisprudence and Law Reforın on Federal Courts of Arbitration,
(See Appendix.) The President:
These reports having now been read, they are subject to the action of the Association.
Rufus King, of Ohio :
The first report presented by the Committee happens to be one upon the same subject which was referred last year to the Committee on Judicial Adininistration. They have a report very much like this, and I move, for the present, that the first report submitted by Mr. Hitchcock be laid upon the table temporarily.
Wilbur F. Sanders, of Montana :
You mean, Mr. King, the report wbich concludes with the following resolution :
Resolved, That in the opinion of this Association the preparation of a code or codes of procedure for the United States Courts, regulating both civil and criminal proceedings, is both desirable and practicable.
The next report is accompanied by the following resolution :
Resolved, That in the opinion of this Association the project of a bill for an Act to establish courts of arbitration, as printed in the reports of the Association, Vol. IX, p. 509, presents a fair and practicable scheme for enlarging the powers of the courts of the United States in respect to arbitration, and is worthy of careful consideration by the Congress of the United States at its next session.
C. C. Bonney, of Illinois :
One moment. I desire to state that having had some experience upon the question of arbitration in the State in which I practice my profession, we find that arbitration usually means the confiding of interests to a tribunal less competent to pass upon the rights of parties than would be the case if intrusted to the usual judicial tribunal. Its administration has been a source of increased difficulty. It has increased litigation with us. Why a tribunal of arbitration should be selected to confide rights to, which is less competent both by its organization and by its learning and ability to deal with judicial questions, I never could understand.
When I have dealt with an arbitration proceeding, I have usually found that one man has taken a view favorable to one party; the other man has taken a view favorable to the opposing party; then they have called in a third party, who has divided the differences between the two without regard to the real rights of either of the parties. For that reason I question very much whether an arbitration is a desirable tribunal to intrust any rights to. My own judgment about it is that rather than create new tribunals for decisions of popular questions now arising that it would be better to enlarge the judicial tribunals of the United States or States. As lawyers, we all know that the larger experience the judges have, the better judges, as a rule, they make. A man who enters upon the discharge of judicial duties has his schooling to qualify himself to strike at that which would be equal justice between man and man; and it is important that he should have such schooling. Now, I say that if you enlarge the powers of a man so trained you are ·benefiting the parties whose interests are to come before him. You are securing for them the possibility of more perfect rights. For these reasons I question very much the propriety of suggesting upon the authority of this Association, the creation of a new tribunal, and, as at present informed, I feel in duty bound to vote against this suggestion.
C. C. Bonney :
I rise to a word of explanation, which I think will remove the difficulties under which my friend evidently labors. There is throughout the United States at this time, and has been for a year or two, a widespread demand for the privileges of arbitration. We thought it reasonable that that demand should be met. The bill in question has one feature not known, so far as we are advised, to any other method of arbitration which has been attempted in this country. It meets the exact difficulty pointed out by our learned brother. It provides that the courts of the United States shall appoint some fair person to be called a judge arbitrator, and who,
being trained in the law, shall be the guide of the arbitrators. Some think that the reason why arbitration has not been successful heretofore is because there was no such guide.
Wilbur F. Sanders, of Montana :
I would like to inquire of the gentleman wherein this arbitration will differ from trials in courts of law if the arbitrators shall be competent men. Will the arbitrators be guided in the reception of evidence and proof by those rules of evidence which obtain in courts of law; and in their determination of the controversy, will they be governed by those rules of law which are ethics formulated in words?
C. C. Bonney :
Again I rise to answer the question proposed by the gentleman from Montana. The bill is so drawn as to invite those powerful and not always orderly combinations of capital and labor which now prevail so widely thoughout the country to submit their grievances to a decision by arbitration, whereas they would not, and, in the present state of the law in some cases, could not have these questions determined in a court of law. The bill was framed to invite associations such as are common in all parts of the Union to submit the controversies which they have to arbitration, and it was thought that they would be more likely to do so if they could have the aid of a guide appointed in the manner provided by the proposed bill.
Wilbur F. Sanders:
My own observation of this demand for arbitration is that it comes from people who desire that the tribunal constituting them shall be emancipated from rules of law. Now, until I am willing to vote a want of confidence in the adequacy of the law to right every wrong, I am not willing to say that there is a better tribunal known among men than the judicial tribunals themselves. Further than that, the resolution which is here offered for our adoption refers to a discussion of the question found on page 500 of Volume IX, of our proceedings, and Section 2 of the Act provides that “any person or persons
acting as individuals, and any association, society, or organization, whether incorporated or not, or the officers, or the governing committee or authority of any such body, etc.," may submit to arbitration. Now, I do not understand that there is any reason why two men, or two bodies of men who differ, may not select an individual between them to determine what is the exact right about the matter. I am unwilling, for one, that the American Bar Association shall commit itself to the proposition that the officers of a corporation who are but trustees representing somebody else's property, whenever a contention shall arise, shall withdraw the very right of that controversy from the tribunals of the law and submit it to a tribunal that is emancipated from the rules of law.
E. B. Sherman, of Illinois :
Mr. President, that man must be blind indeed who has not discovered within the last five years the powerful working of social forces never before perceived in American society. The universal organization among the workingmen, the brawn and the muscle of this country, has engaged the attention of all thoughtful men. I do not exaggerate, Mr. President, when I say that the problem of the future in this country is, how shall we settle the complicated and perplexing controversies which have arisen and which now exist between capital and labor? Gentlemen assure us that existing judicial tribunals with jurisdiction as now exercised are adequate to meet this emergency. Certainly, the principles which underlie jurisprudence are sufficient in theory, at least, to adjust any existing controversy between individuals or classes. But that judicial tribunals, as at present constituted in this country, are competent to deal with these social questions, these sharp conflicts between labor and capital, which are threatening, not only the prosperity, but perhaps, to some extent, the disintegration of existing institutions, is certainly incorrect. While it would be unwise to modify essentially either the principles or the modes of administering our jurisprudence as it has existed and now exists, it is the part of wisdom not only to