The Sunday Oregonian., November 21, 1909, SECTION FIVE, Page 8, Image 56

In an address before the Ore-jon
Bar Auoclitloi, delivered on Tues-t
day last, ex-Senator Fulton severely
arraigned the course of Judce Dunne
and the methoCs used br Francis J.
Heney to secure the. conviction of ex
Mayor Schmitz.
After the trial and the verdict of
guilty vii secured, an appeal was
taken and the esse remanded for a.
new triat. pendlnj which the former
official Is at liberty. Mr. Fulton
strongly Indorsed the action of the
Court of Appeals and urged that an
honest, courageous court could not
have done otherwise.
The speaker condemned Ill-advised
newspsper criticism of Judlcisl
decisions, saying that the facts and
the law were frequently mlsunder-
stood, and cited a noted Oregon case.
THE following is the full text of the
address delivered by ex-9s?nator
Charles W. Fulton before the Ore
gon Bar Association last TuetMay. and
which attracted unusual attention. As
the cx-Senator took hl3 seat he was met
with round after round of applause.
"Without mentioning ny names the
sneaker made It plain that his remarks
were dtr;ct?d In part toward the man
who created Interest in Oregon hsj'd fil
ings and lafr Wame engaged in the
graft propecutlor," at San Francisco. Mr.
Fulton said:
Tt Is a popular .saying that we are gov
erned by laws and not by men. We
assert that all men are equal before the
law: that we- have but one rule by which
we measure and test allks the rights and
the conduct of the rich and the poor, the
strong and the weak, the sinner and yie
saint. We know that this should be so.
and we hope, trust and try- to believe
that in the administration of our laws
this fundamental, basic principle of Jus
tice is constantly kept In view and in
variably applied. Whether it if must ever
be a matter of deep public concern.
Government by law requires that gen
eral rules of conduct shall be prescribed
bv which every citizen and all citizens
without distinction shall be Judged and
to which all shall be required to conform.
Such a government, to be successful, must
provide and maintain impartial tribunals
charred with the duty of Interpreting the
law and applying It uniformly without
regard to the character, station or stand
ing of the Individual whose life, liberty
or property may be Involved. We have
established such tribunals and designated
them courts of justice.
Courts Custodians ofeace.
H Is quite evident that the peace and
good order of society and the permanence
of government depend very largely upon
the extsnt to which the courts shall en
Jov the respect nad confidence of the peo
ple, for on their construction and appli
cation of the laws. or. to speak In a
larger wav. upon their administration of
justice, the security of life, liberty and
property depends.
That the courage, wisdom and fwesjty
of the courts must ever be the principal
'actors in enlistin? and retaining respect
for and confidence in their decisions can
not be dotibted Yet. "however courageous,
wise and Just court? may be. systematic
and continuous misrepresentation will
ultimately result tn undermining th-lr In
fluence and in bringing them Into so
great a degree of disfavor that brave
and honorable 'men will J? retired from
the bench and be succeeded by Judges
who will stud-, not how to administer
Justice in accord with the spirit and pur
pose of the law. but how best to win the
popular applause of he hour. I ne?d not
pause to picture- how deplorable and
disastrous such a condition would be. It
would seem therefore that every thought
ful citixen. evervy lover of good govern
ment should deem it one of his most
Important public duties to foster and In
culcate not only a spirit of obedience to
law. but. as well, respect for and con
fidence In the 'wisdom and Integrity of
the tribunals charged with its adminis
tration. v
Fortunately this has been heretofore
quite generally Conceived to be the mental
attitude requisite to good citizenship: and.
hapDlly, no far In our history there has
seldom been evidenced any considerable
disposition to Indulge In wanton or
Ignorant attacks uopn the Judiciary.
Within the last few years, however, many
of the otherwise best conducted and most
intelligently edited newspaprs of the
countrv have fallen Into the habit of in-
dulging In what verv largely seems to
me to be Ill-considered and unreasonable
censure of our courts. The usual text
for their objurgations ts Hhat the courts
are wedded to technical rules which con
trol thir decisions and are observed at
the expense of common sense and justice.
They seldom take, the pains to inform
themselves of the facta or the law of
tli cases they criticise, hence they rarely
have accurate information about them or
an Intelligent understanding of the rea
sons assigned by the court in support of
the rulings they so unhesitatingly con
demn and hold up to contumelious scorn.
Knowledge Should Ircccde.
They have previously determined that
the defendant is guilty, or that the suc
cessful party In the cause should not
have prevailed: and so. without know-y
riff- rf the facts disclosed by the rec
ord and with no disposition to ascer-fj
tain them, they denounce the decision
as either the result of corrupt influ
ences or a narrow and fanatical devo
tion to technical rules and precedents
which have, or should have, they assert,
no placa and are entitled to no con
sideration In these enlightened times.
I do not contend that courts are or
should be deemed to be above
criticism. I do Insist, however,
that , the importance to the pub
lic trelfare of maintaining; confi
dence In and respect for their decisions
ia so great that a true appreciation of
the duties of good citizenship should
restrain one from condemning as cor
rupt, unsound or unjust a decision of a
high Judicial tribunal without being
first fully Informed of and having
carefully considered the facts and nrin
clples of law upon which it rests. That
courts, even of last resort, are some
times wrong in the conclusions they
reach no one will deny. That they are
frequently wrong I cannot concede, for
such Is not my belief. That they are.
as a rule, presided over by men of
acknowledged ability and sound learn
ing, of high Ideals, moral and mental
integrity, will, I believe, be very gener
ally admitted. Still, they are only men,
liable to err. and not exempt from
criticism. I urge only that criticism
of their decisions should be preceded
by and based upon accurate knowledge
of the facts and the law involved. " .
This being essentially a government
by law, and not by men. It follows that
the Jaw must .be uniformly applied:
that that which Is the law for one man
must, in like circumstances, be the law
for all men:, hence the Importance of
adhering to precedent. When the judge
shalL be at liberty to make the law1
conform to his personal convictions as
tn what should be done In each case, we
will have ceased to be governed by law
and will have become the subjects of
men. When precedents shall count for
naught: when uniformity of decision
and universality In the .application of
The rules of law shall no longer be
deemed important: when cases shall be
determined, not by general rules or es
tablished precedents designed for the
guidance of men in their conduct and
relations in life, buteby giving heed to
public clamor or by substituting for
the law the personal convictions of a
judge as to what the law of the partic
ular case should be, then popular gov
ernment will have ceased, anarchy will
have supervened, revolution and possi
blv despotism will be near at hand.
"Legal technicalities" is the familiar
weapon which the newspaper judicial
decision reviewer, as a rule, employs In
assailing court decisions. If the effect
of a decision be not in accord with his
pre-adjudlcation. he unhesitatingly
brands It as the result of unreasonable
veneration for tlme-wwrn precedents
and slavish observance of obsolete or
technical rules. As above stated, he
rarely takes time to read the decision
itself, but. relying unon an alleged re
port of its substance and effect, con
demns It as a travesty on justice and
solemnly admonishes the court that the
people will not long tolerate such mis
erable perversions of the law. With
out knowledge of the facts disclosed
by the record, the authorities or source
of the law which the court, after
painstaking Investigation, conscien
tiously believed applied thereto, he
promptly condemns their conclusions as
being unwarranted by either the facts
or the law. . i
I do not mean to say or Intimate that
newspaper writers are incompetent to
review and intelligently comment on
judicial, decisions: on the contrary, I
readily concede that most of the edi
torial writers nd many of the report
ers on high-class papers and Journals
are--men of exceptional mental force,
vigor and analytical powers. My con
tention ts that before entering upon
such a task one should carefully Inform
himself of the exact facts on which the
court passed, and the source, purpose,
spirit and Intent of the rule or rules
announced- or applied". This not simply
in justice to the court though that
would be a sufficient reason, but be
cause of the vital importance of foster
ing public respect for and confidence
in our state and National judiciary.
Tt cannot be too often repeated that
courts do not make the Iftv: that their
duty is to apply the law as it Is writ
ten. A jndge may. of course. Ignore
the law. 'or purposely misconstrue It.
but in so doing he violates his official
oath: disgraces and discredits his high
position. Ior ean a judge, eonrormlng
to his oath and to our theory and sys
tem of government, vary, warp or sus
pend the rules of the law In order to
avert that which otherwise will be the
result In a particular case. It may be
quite "apparent to a court tjiat by de
claring and applying the law as it is
written, the effect in a given case will
be to postpone, possibly prevent entire
ly, the punishment of one whom they
may deem guilty of a serious offence
against society. It is none the less the
duty of the court to declare the law as
It Is. It Is far better that a guilty per
son shall occasionally escape Justice by
reason of the rigidity of legal rules
than that the power shall be admitted
to be vested In any man or any num
ber of men to suspend the observance
of statutes or rules which the wisdom
and experience of ages have demon
strated are necessary to the preserva
tion of popular government and the
untainted administration of justice.
Harm less. Error Disregarded.
Ah, but mere technicalities! Has not
the court the(right. and is it not Its duty
to disregard them? That depends. It
depends on what you mean by technical
ities. If by a -technicality you mean a
merely abstract and purely harmless
error. It should be, and If it plainly Is
such, always Is disregarded. Errors at
the trial, which do not affect the sub
stantial rights of an appellant are sup
posed to be and generally are ignored.
The Oregon reports and the reports -of
every state are full of decisions which
verify this statement. The question to
be determined in-each case where error
occurred at the trial Is. "Was the error
of such a character that the court can
say with confidence that it was not pre
judicial?" I am not objecting to a dis
cussion and criticism of tiio decisions
of courts based on an accurate knowledge
and understanding of what the court
really did decide. The misfortune is
that such information or understanding
is rarely the basis of newspaper criticism,
if" It were and the facts were fairly
stated, the viciousness of such criti
cisms, now so frequently manifest,
would largely disappear.
The fact Is that a careful analysis of
most decisions condemned by the news
pupers as having been the result of un
due devoJion to so-called technical law
will disclose that they are defensible on
the broadest grounds of equity and
simple justice. I know of no decision
that has been more widely criticised
and condemned by newspapers as alto
gether bad and vicious than that of the
California Appellate Courts In People
vs. Schmitz. Apparently the entire vo
cabulary of denunciation has been ex
hausted In heaping condemnation upon
those courts because of their action in
that case, and yet I seriously doubt If
the author of a single one of these de
nunciatory articles ever carefully read
either decision or has an Intelligent
understanding of the grounds on which
cither was placed.
Schmitz Trial Unfair.
I state without any reservation what
ever, as a result of a careful reading
and consideration of both decisions,
that had either eourt failed to decide
substantially as it did it would have
discredited Itself and the judiciary of
this country. . They could not have de
cided otherwise than they' did without
violating their official oaths and plead
ing guilty to a degree of cowardice and
pusillanimity that would have justly
earned for them the enduring contempt
of the bench and bar of this Nation. I
do not contend that the record dis
closed the Innocence of Schmitz. He
may have been guilty of the. crime of
extortion, for which he was tried, and
of which he was convicted in the lower
court. I do affirm, however, that he
was entitled to a fair and Impartial
trial and that the record disclosed not
only that he had been denied such, but
that the character of trial to which he
had been subjected In the court below,
in its utter disregard of the most sim
ple. and elementary principles of jus
tice and decency, was rarely, if-ever,
surpassed by Jeffrey in his most vigor
ous and -icious examples of Judicial
tyranny and depravity. Witness the
following, being only a few of the nu
merous prejudicial errors shown by the
record :
1. The California penal code pro
vides that when a jury is being selected
a challenge must be taken "when the
Juror appears and before he la sworn to
try the cause; but the court may, for
cause, permit it to be taken after the
Juror is sworn and before the Jury la
completed."
Three jurors had been accepted and
sworn to try the case wnen the District
Attorney asked permission of the court
to challenge! one of the three so ac
cepted and sworn. The defense ob
jected unless cause should be shown.
The court overruled the objection and
permitted the District Attorney, with
out assigning or submitting any cause,
to excuse the Juror. It was a plain
violation of an express provision of the
statute.
2. After the jury had been impan
eled and sworn, the District Attorney
asked the court to appoint an elisor
to take charge of It and offered several
affidavits In support of his request.
Counsel for the defense objected to any
action being taken until copies of the
affidavit should be served on them and
they had had an opportunity to file
counter-affidavits, wnereupon the court
said:
"It is no concern of yours. Mr. Bar
rett; you have nothing to do with It.
i i
EX-SEXATDR FILTON, WHO ARRAIGNS LAWLOB A.VD HEN EY.
Tou may object to the whole .thing.' but
I want to make it plain to you that It
Is none of your business. . . . You
can object. I believe you have object
ed, and I would like, to have you take
your seat." The court then made an
order adjudging the Sheriff and Coro
ner each disqualified and appointed one
Biggy to act as elisor and take charge
of the jury. Counsel for the defense
objected to the appointment of Biggy,
contending that he was an enemy of de
fendant, and they asked permission to
file affidavits in support of that conten
tion, but the judge declined to permit
the affidavits to be filed or to bear the
objections of counsel for defendant to
the selection of Biggy.
Defendant's Kiglits Denied.
This was assigned as an error, and
the court of appeal. In passing on it,
said in part:
Without analyzing the rulings of the court
in detail. It Is sufficient to say that it ap
pears that the court refused to allow the
defendant to Use- counter-afTldavlts as to the
fact of the disqualification of the Sheriff
and Coroner, and acted upon the ex parte
affidavits of the prosecution, which had not
been even served upon the defendant. The
court further refused to hear the defendant
as to the enmity and disquatflration of the
elisor. Biggy. It was held by the court
that the prosecution might have the Sheriff
and Coroner declared disqualified from tak
ing charge of the jury because, they would
not act impartially. It was frt the next
breath held ttrat the defendant had no right
to show that the elisor was disqualified by
reason of bias and prejudice against de
fondant. These matters were of the ut
most importance to defendant. If it was
necssarv. in order to subserve the ends of
Justice, that the political friends of the- de
fendant should not have charge of the jury,
II was equally necessary, in order to protect
the rights of the defendant, that the elisor
should not he a personal enemy of the de
fendant or in The employ of the prosecution.
Fair dealing and the. rights of the defen
dant required that he should be heard upon
both, propositions. If, after giving the de
fendant the right to be heard by affidavits
or otherwise, the court, upon a full investi
gation of the facts, concluded that the
PherifT and the Coroner were disqualified,
that would be a matter resting In the sound
discretion of the court, ants If. the. court
concluded to appoint an'ellsor. it was equally
Important that the elisor should not have
any nlas or prejudice either for or against
the defendant. Defendant had the right to
be heard as to the qualifications of the
Sheriff and Coroner, and also as to whether
or not Biggy was qualified. It the SherifT,
by reason of his friendship for defendant,
nilght in some way have Influenced the
jury, if they had' been placed in his charge,
it is equally clear that the enmity of Biggy
to the" defendant, or his friendship for the
prosecution, might In some way have In
fluenced the jury. It was of the utmost
Importance to the defendant.
Will any lawyer question the justice
or soundness of ' the reasoning of the
court? Indeed. It does not require a le
gal mind to appreciate the force and
fairness of the views there expressed.
Had tliey held otherwise they would have
merited the condemnation of all honest
men.
3. The theory of the prosecution was
that Schmitz, the defendant, as Mayor of
San Francisco, exercising his power over
one Reagan, a Police Commissioner, had
conspired with his co-defendant, Ruef,
to refuse to issue a license to certain
restaurant keepers, so that they would be
compelled to employ Ruef and pay him
a large sum of money, ostensibly as an
attorney's fee, but In truth to be divided
with Schmitz; this constituted the al
leged extortion.
The prosecution did not call Ruef as a
witness in chief and closed Its case with
out making any attempt to prove by di
rect testimony that Ruef gave , to de
fendant or that defendant ever received
any of the money- claimed to have been
paid to- Ruef or that he was ever paid
any money by any person on account of
such licenses. Reagan testified to cer
tain conversations had with Schmitz as
did also one Malfantl. The conversations
testified to by Reagan were to' the effect
that the defendant had told him that cer
tain restaurants were bad places; "to
hold them up and if possible close them
up." Malfantl testified that he asked the
defendant "why the licenses of the
French restaurants were being held up."
and defendant answered that he would
see what could be done; that he would
call a special meeting of the police com
mission and be there himself. When the
prosecution rested, the defendant took
the stand as a witness in his own be
half. His testimony in chief was con
fined to explaining or refuting the al
leged conversations, the name of Ruef
not being mentioned: nothing whatever
was said about any money having been
paid to Ruef or any other person. On
cross-examination he was asked If Ruef
had paid him any part of the 15000 'which
It had been testified by witnesses for the
prosecution had been paid to Ruef. To
this question defendant's counsel ob
jected that it was not proper cross-examination,
the matter not having been
mentioned or referred to in the direct
The court overruled the objection and
compelled defendant to answer. He de
nied having received any part of the
money. He was cross-examined on the
subject at length and the same question
put to him In many forms and he was re
quired to answer.
The California Penal Code provides, as
do the codes of most states, that "no
person in a criminal action shall be
compelled to be a witness against him
self, but If a defendant offers himself as
a witness he may be cross-examined as
to all matters about which he was ex
amined In chief." Of course, the cros?
exansination to which Schmitz was sub
jected was Improper and in clear viola
tion of the statute and his counsel earn
estly objected. . The trial Judge told coun
sel to take his seat and said to the
plaintiff, "put him In his seat and if
he does not take it, put him out of the
room." The utterly disgraceful, not to
say infamous, conduct of the trial judge
appears, however, only by contrasting
his ruling on the cross-examination of
Schitiitz with bis ruling on the cross
examination of Ruef, for. though not
called In chief, when the defense rested,
the prosecution called Ruef ostensibly In
rebuttal, though his testimony as In
truth part of their main case and should
in all fairness have been -Introduced be
fore the prosecution- rested in chief. He
testified that he at one time gavu
Schmltw $1500 and at another time e2600
and told him it was a part of the money
he had received from the French res
taurants as a fee. Ruef admitted, how
ever, "that he had stated to the prose
cution that if he should testify' to the
facts in all their details, as they were,
the larger part of them would be favor
able to the defendant"; thereupon counsel
for defendant said: "Well, what were
those facts? State them now in detail in
relation to this case?" The prosecution
objected and the court sustained the ob
jections and excluded the evidence, on
the ground that it was not proper cross
examination. Defendant's counsel asked witness
(Ruef) if prior to the giving of the money
to Schmitz he had any conversation with
him In relation to any division of his
fee. The court refused to permit the
witness to answer, on the ground that it
was not proper cross-examination. Coun
sel asked Ruef if he was not testifying
under expectation of complete Immunity.
The court directed witness not to an
swer for the same reason. Numerous
other aucsttons of like character were
asked by defendant's attorneys and ruled
out as being improper cross-examinatlpn,
notwithstanding every question was
clearly asked by defandant's attorneys
pertinent to the matter brought out In
the direct examination excepting the
question relative to immunity and that
was designed, of course, to disclose the
Interest he had in testifying favorably to
the prosecution, and probably no court in
.this land ever before excluded such testi
mony. Higher Court Courageous.
Is it surprlsingMhat the Appellate Court
reversed the judgment? Could an honest,
courageous court hae done otherwise?
The rulings I have pointed out are but a
few, of many equally as erroneous. It
was not, for instance, charged In the in
dictment that the defendant Schmitz
was the Mayor of San Francisco, yet the
theory of the prosecution was that as
Mayor he was to exert his influence to
bold tip the licenses, unless satisfactory
payments should be made to Ruef. If
he held no official position he could ex
ert no control in the matter of issuing or
withholding the licenses unless by rear
son of sustaining some special, peculiar
or exceptional relation to the city ad
ministration, and no facts showing or
indicating any such relation were alleged;
the prosecution apparently relied solely
on the fact that tie was Mayor and hence
in a position to extort money by with
holding the licenses unless the money
should be paid. It does not require a
trained lega, mind to understand the im
portance in such a case of averring In the
indictment the fact tb.at defendant was
Mayor. Eveu those in charge of the
prosecution, It w-ould seem, should have
known that.
Of the trial -judge I hesitate to speak,
lest, mistaking Ignorance for Infamy, I
shall express myself In language too se
vere,' or mistaking, infamy for ignorance,
I shall condemn his conduct not suffi
ciently. Macaulay, speaking of Bertrand
Barere. said: "In almost every particu
lar sort of wickedness he had had rivals.
There may have been,'' he said, "men as
cowardly as he. some as cruel, a few as
mean, a few as impudent. There may
also have been as1 great liars as he,
though we have never met with them or
read of them. But when we put every
thing together, sensuality, poltroonery,
baseness, effrontery, mendacity, barbar
ity, the result is something which, In a
novel, we should condemn as a carica
ture and to which we venture to say no
parallel can be found In history."
It remains only to add that had It
fallen to the lot of Macaulay to read the
record in the case of People vs. Schmita,
he would have either modified or quali
fied in some respects his famous denun
ciation of Barere.
I have not. however, referred to the
decision in Schmitz' case either to con
demn the prosecution or to defend
Schmitz. The latter was probably a weak
and corrupt official, but whatever may
have been his character he was entitled
to be tried according to the laws of the
land. It was not for the court to assume
his guilt and then proceed with an eye
single to his condemnation. It was the
sworn duty of the Appellate Courts to
see to It that the plain, simple rules of
Justice, recognised In every civilized com
munity throughout the world, were not
tramnled upon and ignored' as the record
disclosed had been done at the trial. The
Appellate- Courts did their duty, no more,
and by so doing preserved the judicial
honor of their state. In their decisions
there was neither discussion nor applica
tion of technicalities. There Is not a bar
association ih this country which, were
the record in that case submitted to it.
as an appellate tribunal, would not
promptly and with at least practical If
not absolute unanimity vote to reverse it.
And yet I, constantly see newspaper refer
ences to the Judges who Joined in the
decisions reversing the case, framed in the
most cruel and contemptuous language,
holding them up to public scorn and de
rision for having enabled "Schmitz to
escape on a technicality."
State -vs. Henibrec Reviewed.
The recent decision-of our own Supreme
Court In state vs. Hembree has been
severely condemned by a number of the
Influential newspapers of this state. No
statement of the facts upon which the de
cision was based or of the reasons as
signed by the court in support of its
action has, to my knowledge, ever been
published in connection with such criti
cisms. ' It has been deemed sufficient to
characterize the decision as predicated on
technicalities and as being the result
which must be expected so long as the
courts shall blindly and without discrimi
nation adhere to precedents and continue
to Indulge in legal quibbling and cavil.
Nevertheless the decision was. as a mat
ter of fact, based entirely upon a very
clear and plain provision of che Oregon
criminal tode.
Hembree was convicted of the crime of
murder In the first degree. The evidence
showed that the defendant and his family,
consisting of his wife, a daughter, aged
18, and two sons, aged 12 and 14. respec
tively, resided on a farm in Tillamook
County. During the month of December.
105. the boys were absent from home for
some days, and one night, during such
absence, the Hembree dwelling was de
stroyed by fire and the remains of the
wife and daughter were subsequntly dis
covered In the embers. Oh the night of the
fire, between 2 and 3 o'clock In the morn
ing, the defendant appeared at the home
of a neighbor, named Hoyf, and inquired
it his wife and daughter w-ene there.
Being informed that they were not. he
stated that his house had burned down,
and that his wife and daughter v,ere "out
in the cold," and asked Hoyt's brother-in-law,
a Mr. Thompson, to go and look for
them. Hembree was clothed only In a
suit of underwear, a pair of old shoes and
a hat, with a hop sack, over his shoul
ders. He complained and gave evidence
of being ill. Thompson went to Hera
breo's farm and found the house burned,
but, finding no trace of the wife or daugh
ter, notified other neighbprs. who joined
In the search. The following morning
there were found in the embers two hu
man skeletons, undoubtedly the remains
of Mrs. Hembree and her daughter.
There was "no direct evidence' whatever
tending to establish criminal .agency on
the part of the defendant. It was con
tended by the prosecution that the fol
lowing circumstances established the de
fendant's guilt:
First His sorts were absent when the
house was burned, presumably by his con
nivance. . '
Second There was a considerable mass
of embers where the remains were found,
which, it was contended, was greater
than w-ould have been supplied from the
materials of the building.
Third When the remains were discov
ered, no small bones were eeen.
Fourth Where the skeletons were found
no remains of either of the heads were
to bo seen, but some days thereafter bones
alleged to have been those of a human
skull were found in a stove that had been
in the house when It burned.
Fifth Defendant did not return to the
scene of the burned house that night, or
join in the search for his wife aod daugh
ter, but remained .at Hoyt's house, went
to bed and slept until 7 o'clock in the
morning.
Story of Defense Unshaken.
The defendant testified that his sons
were absent on a visit to relatives, which
seems to have been a fact; that on the
night of the fire he was sleeping In his
undershirt and drawers when he awoke
and found his chamber filled with smoke;
he called his wife, who was sleeping in
an upper room of the house. Neither the
wife nor daughter stopped to put on
clothing, but, both In night robes, seized
bed clothing and went with him down
stairs. Arriving there and finding a fire
under the stairway, they endeavored to
extinguish it with water from the kitchen.
The wife tried to bring into the house a
tub of water which was standing outside,
but either the-handle broke or she fell.
SPOKANE ATTORNEY FLAYS DIRECT .
PRIMARY LAW-SAYS IT'S FAILURE
Frank T. Post, in Address Before Session of Oregon Bar Association, Scores Modern-Day Sy.""011'
Mentioning Particularly Present Method of Selecting Judges of Various Courts in Oregon and Washington.
HAVING been so long delayed by in
terrupted train service that he was
unable to reach the session of the
Oregon Bar Association prior to its ad
journment, Attorney Frank T. Post, of
Spokane, arrived in Portland Iat,e Wed
nesday night, and at the banquet ten
dered the members of the bar, spoke of
the present methods- of selecting judges
of various courts in Washington and Ore
gon. Without any hesitation he declared the
direct-primary nomination law a failure,
deprecating its tendency to. lower the
standing of the judiciary, and contending
that it is In contravention of the provi
sions of the constitution.
Mr. Post was well received by the mem
bers of the Oregon bar and his remarks
created a most profound consideration of J
the subject. The full address is as fol
lows: At the present time the popular, or at
least common, subjects for addresses or
papers before conventions of lawyers,
seem to be those relating to court proce
dure, and discussed under various heads,
6i?h as "The Law's Delay," "Defects In
Criminal Procedure" and "Legal Techni
calities." While these questions are of
interest to the profession and of impor
tance to the general public; it has seemed
to me that there are other questions
which the bar. particularly of the North
west, should fully discuss and after care
ful consideration give the public the ben
efit of their views. And that the ques
tion of paramount importance might
properly be given the title, "The Effect
of the Direct Priroar Law Upon the
Character. Ability and Independence of
the Judiciary." Perhaps a question of
even greater importance to the whole
people Is the wisdom or folly of recent
legislation in certain sections of the coun
try, particularly the Northwest, tending
towards material changes in our form of
government 'as established by the Con
stitution of the United States and the
constitutions of the 13 original states. I
particularly refer to the legislation that
is known generally as "initiative and ref
erendum," "recall." "direct primary" and
election of United States Senators by
popular Vote. In order to fully discuss
the first subject stated, it is necessary to
touch somewhat upon the second subject.
The government established by the fath
ers and whose success and stability has
been the marvel of tne world, is a repub
lic and not a democracy. In the series
of letters published in the city of New
York before .the adoption of the Constitu
tion and republished under the title "The
Federalist." written by statesmen then of
great reno-n and now. of even greater
renown, namely: Alexander Hamilton,
and the tub overturned. SDllllng ttie wa
ter. The fire made such headway in the
cloth and paper lining of the walls that
it was seen the house could not be saved,
whereupqn they turned their attention to
removing furniture and some had beer,
removed when the daughter exclaimed,
"Mamma, my trunk: my fine clothes"'
Looking up the stairway towards the
room where his daughter's clothing was
kept, the defendant said: "Don't go up
there; it Is dangerous." Going then Into
the kitchen, he removed some provisions
and dishes. The heat soon compelled, him
to retire, when he tried to find his wife
and daughter, but. failing, concluded they
must have gone to the home of Mr. Hoyt.
so he started on a run in that direction.
He arrived at Hoyt's suffering severely,
and. retiring to a room, fell asleep, un
conscious of the death of his wife and
daughter. Such was hle-story.
Furnifurc, provisions, dishes, clothing
and the upset tub were found near where
the walls of the house had stood, muto
witnesses, corroborative of a -portion at
least of his testimony. Touching the al
leged remains of cranium bones said to
have heen found In the stove, one of the
sons testified that some days subsequent
to the fire, at his father's request, he
searched in the ashes where the skeletons
had been discovered, and there found a
handful of bones, which he threw in a
heap near the stove. Thereafter he tried
to put the stove Into shape for use. but
found it too badly warped to be recon
structed. This seems to have been prior
to the discovery of the mysterious hones
in the stove. It also appeared that the
chimney had fallen on the skeletons be
fore they were discovered, and that the!
mass of bricks had to be removed before
the bones could be secured for interment.
Inference Xot Supported.
Such were the facts In evidence against
the defendant. No direct evidence what
ever connecting him with the alleged
crime: all purely circumstantial and not
by any means, inconsistent with his In
nocence, sufficient to give rise to a sus
picion of his guilt, but littte If any more.
The prosecution realized the Importance,
if not, in the circumstances, the neces
sityof establishing a motive on the
defendant's part to commit the crime and
for that purpose sought to prove' that he
had sustained criminal relations with his
daughter, of which his wife, it was to
be inferred, had probably become cogni
zant, and hence it was to be inferred a
motive existed on defendant's part to
get her out of the way. The only evi
dence tending in 'the least to. establish
such theory was the testimony of one
Larsen. a hotel proprietor. He testified
that the daughter attended ; school for
about three months at Tillamook City,
and that nearly every week defendant
came to town and brought the daughter
to witness' hotel to remain over night.
There was no direct evidence that the
defendant ever visited his daughter's
room at night, but witness testified to
circumstances occurring on two oc
casions which tended to prove that he
did, and therefore the jury was asked
to infer that, he had done so. He was
neither seen nor heard in her room. The
utmost that could be justly claimed for
the testimony was that it might be in
ferred therefrom that' he did visit her
room, and if so, it was contended that
the circumstances "were such as to Justi
fy the further inference that he did so for
a criminal purpose.
Considering the relation of father and
child, tHere was really no evidence to
justify such Inference, but In any case,
as stated, the utmost that could be
"1raimed for the evidence was that it
might be inferred therefrom that defend
ant and his daughter had committed the
crime of Incest. From that inference, the
prosecution contended, the jury might in
fer that the wife had discovered this
criminal intimacy and that trie defendant,
becoming aware of that fact, had a mo
tive for the commission of the . crime
charged against him. In other wolds,
the jury were required to infer first,
that defendant had committed incest, and
second, assuming that as a "fact, legally
proven." which it was not. to infer there
from that the wife had discovered such
criminal relations, of which ierred fact
defendant, it was to be inferred, had be
come informed, hence the motive. On
this theory the evidence tending to prove
the incestuous relations, was submitted
to the Jury by the trial court. In view
of the provisions of the Oregon statute,
which I shall shortly quote, it would be
a work of supererogation to undertake
to show how entirely untenable was the
theory of the prosecution and how clear
ly erroneous was the ruling of the. trial
court. It is sufficient to quote the sta
James Madison and John Jay, the au
thors comment upon the dangers of
democracy and the difference between a
democracy and the government proposed
to be established. In one of them Mr.
Madison says:
"Hence It Is that such democracies have
ever been spectacles of turbulence and
contention: have ever been- found Incom
patible with personal security or the
rights of property, and have in general
been as ehort in their lives as they have
been violent in -their deaths. Theoretic
politicians, who have patronized this spe
cies of government, have erroneously
supposed that by reducing mankind to a
perfect equality in their political rights,
they would, at the same time, be perfect
ly equalized and assimilated In their pos
sessions, their opinions, and their pas
sions. Cure Is Promised.
"Asrepublic, by which I mean a gov
ernment in which the scheme of rep
resentation takes place, opens a dif
ferent prospect, and promises the .cure
for which we are seeking. Let us ex
amine the points in which it varies
from pure democracy, and we shall
comprehend . both the nature of the
cure and the efficacy which it must
derive from the union.
"The two great points of difference
between a democracy and a republic
are: first, the delegation of the gov
ernment, in the latter, to a small num
ber of citizens elected by the rest: sec
ondly, the greater number of citizens,
and greater sphere of country, over
which the latter may be extended.
"The effect of the first difference is,
on the one: hand, to refine and enlarge
the public views, by passing them
through the medium of a chosen body
of citizens, whose wisdom may best
discern the true interest of their coun
try, and whose patriotism and love of
justice will be least likely to sacrifice
it to temporary or practical consider
ations." The great care taken by that re
markable body of men who framed the
constitution of the United States to es
tablish a republic instead of a democ
racy Is shown by a study of its pro
visions. Present System Questioned.
- The chief executive is not elected
by popular vote. The will of the ma
jority of the people as to the personnel
of the chlefi executive is not controll
ing, nor is he elected by the states, but
"each state shall appoint in such man
ner as the Legislature thereof may di
rect a number of electors equal to the
whole number of Senators and Repre
sentatives to which the state may be
tute; Section "S3 of the Oregon Code
thus defines an inference:
An inference is a deduction which the
reason of the Jury makes from facts proved,
without an express direction of law to that
effect.
Section 7S5 of the Code thus pre
scribes what an inference, such as the
law permits, must be based upon:
An inference mist be founded:
-1. On a fact legally proved, and
2. On' such deduction from that fact as
is warranted by a consideration of the
usual propensities or passions of men. the
particular propensities or passions of the
person whose act Is in question, the course .
of business or the course of nature.
Tacts Mnst Be Proved.
Thus It appears that an. inference must
be founded on a fact legally proven, not
On an Inference founded on some anterior
fact or on an inference founded on an
inference founded on a still more rom.utn
fact.
Now. the fact which the prosecution
sought to prove was that criminal rela
tions had existed betwyen defendant and
his daughter, from which it asked the t
jury to infer that either the wife had J
discovered the existence of such relations
and defendant had become aware of such
discovery and hence had a motive for t lie
crime, or that the daughter had become
pregnant, of which fact he had become
cognizant and hence a motive. It was.
however, only an inference from certain
circumstances that defendant had vislte-lV-liis
daughter's room at all at night time;r
assuming that inference Justifiable, the
further Inference was demanded, founded
on the first inference, that, being there,
he wrf guilty of incest, and founded on
the second Inference the jury was re
quired to infer either that the wife had
discovered such criminality or that the
daughter had become pregnant, and based
on such third Inference to Infer that de
fendant had been made aware of trw
knowledgo of the wife or the condition
of the daughter, therefore his motive.
The court held that under our statute an
Inference cannot be founded on an In
ference. How could they in reason have
ruled otherwise?
It is not my purpose to cite authorities)
or attempt an argument In vindication,
of the court's rulings. My purpose is
simply to show that the decision was
based exclusively on a positive and plain
provision of a statute of this state which
the court could not ignore without doing
violence to their oaths or discredit to
their intelligence. Indeed, the trial court
might well have declined to submit tha
case to a Jury. The evidence, given its
utmost weight, justified little more than
a suspicion of the defendant's guilt. Cir
cumstantial throughout, it completely
failed to rise to that dignity of proof
which all experience has taught is
requisite to guard against injustice In
such cases, namely: "to exclude to a
moral certainty every reasonable hypothe
sis but that of the guilt of the defendant."
Or. in other words, as most eminent au
thorities state the proposition, and as all
agree the law is, "all the facts proved
must not only be consistent with and
point to his guilt, but they must be In
consistent with any other reasonable hy- T
pothesls."
No one can reasonably contond that the
proofs in this case measured up to this (
most Just and humane requirement.. It
may be that Hembree was guilty. It is ;
almost, if not quite as probable that he
was innocent. Be, that as it may, I Tefer
to the case only to show how far wide of
the, mark were the newspapers in assert
ing that the Supreme Court was con
trolled either by technical rules or prece
dent in reversing it. The decision was
based, as I think I have shown, on a
very plain and easily understood provision
of the Oregon statutes. If the statutory
rule is unwise, let it be repealed, but do
not condemn the court for observing it
when by so doing They do .but observe
their oaths.
Aside from an intelligent citizenry, de
voted equally to justice and to liberty,
the most important and essential clement
In our fabric of government is a fear
less and honest Judiciary. Courage is as
essential as Integrity, for cowardice of
tentimes approximates and may easily
become as hurtful and prove even more
disastrous than corruption itself. The
danger is not that our courts will evidence
too great a devotion to precedent. Indeed,
adherence to precedent and uniformity of
decision are essential to a just and im
partial administration of tlio law. Tim
real danger, in a government such as
ours, where the stability, peace and good f
order of society, depend so largely upon
the integrity, courage and wisdom of
courts, is that Judges will too frequently
bow to the popular clamor, of the hour,
and that optimism, rather than rules born,
of the wisdom of experience, will guide
and control judicial decision.
entitled In the Congress: but no sena
tor or Representative or person hold
ing an office of trust or profit, under
the United States shall be appointed an
elector." And these -electors shall elect
the President and Vice-President. The
legislative department of the govern
ment Is divided into two parts,- the
members of one coming directly from
the people, or rather from Congres
sional districts, every two years, while
the members of the other are selected
hy the states, two from each state,
through their respective Legislatures,
who are the representatives of the peo
ple of the stato in the state's legisla
tive department. The term of office of
the Senators is six years. And one of
the purposes of the provision making;
a different length of terra of office,
as well as a different method of selec
tion of Senators, is to prevent legisla
tion resulting from the temporary .
whims, passions or prejudices of the 1
people. The other great department of
the government is the judiciary de
partment. Note the precaution taken
to protect the people from the influ
ences of the demagogiie and the char
latan and petty politician Jn the selec
tlon of men who are to preside over 'r
this. In many respects the greatest and
most influential department of the gov
ernment. The Judges are not only not
selected by popular vote, but they are
not even selected by men who have
been elected to their respective offices
directly by popular vote. They are ap
pointed by the president, who Is elect
ed by the electoral college, and con
firmed by the Senate, who are elected
by the Legislatures of the respective
states. The result has been, through
out the entire history of this country,
the selection. of n body of men of the
highest patriotism and the greatest
ability. It is our just boast that in
the truest and best sense, the wisest
and ablest court known to history is
the Supreme Court of the United
States. To that court more than any
other body of men Is due the strength
and stability of the nation, and the
protection of the rights and liberties
of all the people as guaranteed to them
by the Magna Charta and our common
law. and the Declaration of Independ
ence, and the constitution of the United
States. .
llepublic Change to Democracy.
It Is not iny purpose to enter upon a
discussion of the merits of the statutes j
known as "initiative and referendum."
"recall" and "direct primary," but to
call your especial attention to the fact t
that the tendency of these statutes.
(Concluded on rage 9.)