voluntarily violated the law. If a man is insane, he does not knowingly and voluntarily violate a rule of law. What would you gentlemen of the Bar think of a verdict rendered by a jury in the case of a man who killed another man who had assaulted his wife, and the verdict was guilty, but justifiable homicide? That would be about as intelligent as "guilty, but insane." You cannot reconcile these words. The man is either guilty or he is not. If he is insane, he is certainly not guilty. If he is guilty, find him guilty. If he is not guilty, find him not guilty but insane and then let the State take care of him in the proper way as a sick man should be taken care of and not as a criminal. That is a fair proposition. What we need, is not a verdict as recommended in this report, but the proper administration of laws and protection to the community against insane persons who are liable to commit crime; but do not for pity sake say that a man is guilty of a crime who hasn't brains enough to form an intention, which is really the basis of all crime.

Francis Lynde Stetson, of New York:

Mr. President, it may be that this proposed amendment of a verdict of "guilty, but insane," is silly and is impracticable. Perhaps that is so; I would not feel myself competent to forecast the result. But we are told by the committee that it is the truth and I believe it to be the truth, that this form has operated well for thirty years in the administration of Justice in the Courts of England. This being so I cannot see ground for much alarm over our acceptance of this recommendation.

Charles E. McCarthy, of Troy:

Mr. President, I would like to make a suggestion that may clear this matter up somewhat and that is that the

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verdict of "guilty, but insane," does not abolish the plea of "not guilty." If the existence of a certain state of mind,, premeditation, be necessary; if the accused did not know the difference between right and wrong; or did not know the nature of his act, he may still so plead but if he did appreciate that he was doing wrong but his insanity was merely collateral, then the jury would find him “guilty, but insane." But where it was his malady instead of the man that did the criminal act, he would be not guilty and the trial jury would so find.

The President:

The motion is on the substitute of Mr. Boston, first. Those in favor of the adoption of the substitute will say aye. The motion was lost.

The President:

The question is now upon the original resolution, those in favor of it will say aye. The Chair is in doubt. Those in favor will stand up.

The Secretary announced as the count, ayes, 72; noes, 31. The President:

It seems to be and is carried. The report of the Committee on Workmen's Compensation will now be presented by Frederick B. Campbell, Chairman.

REPORT OF COMMITTEE ON WORKMEN'S

COMPENSATION

Frederick B. Campbell, of New York:

Mr. President and Gentlemen of the Association: The Committee on Workmen's Compensation has no formal report to make at this time. The committee felt that it could best serve the Association by putting into the hands of each member a copy of the act, and in co-operating with

the committee on arrangements in procuring the discussion that will take place to-day. The committee feel that the whole subject · certain criticisms of the present act

which will be made should be laid before the Association, to the end that the terms of the act may be thoroughly known and that then the Association, or this committee, will be in a position to take sound conservative action. We are all gratified, I am sure, that at last the principle of workmen's compensation has been embodied in the law of this State, but we must bear in mind that what are the proper principles of workmen's compensation, at least in this country, is as yet uncertain. This Association has been from the beginning the friend and not the enemy of workmen's compensation; and, therefore, if after full discussion we feel that the principles of workmen's compensation as embodied in this act should be to some extent modified, we feel that it is not only the right but the duty of this Association to speak. It has been thought that it would be helpful if there should be stated briefly to the Association some of the criticisms which have been brought to our attention with reference to the act.

First, certain minor constitutional questions have been raised. If you will look at section fifty, such of you as have a copy of the act, you will find that it is provided that if an employer fails to insure, he shall be liable to a penalty of a fine of one dollar for every employee for each day during which his failure to insure continues. If you consider the act as a whole you will find that it does two things: that it first imposes the workmen's compensation obligation on the employer; and secondly, that it imposes upon him the obligation to bring a surety for the performance of that obligation on his part under penalties, among others, of a fine of one dollar a day. The question has

been suggested, is it constitutional to impose a fine of that character on an employer, say in the millinery business, because he does not hire a surety? Is it constitutional under the State constitution, considering the amendment which has just been passed, and is it constitutional under the Federal constitution? The amendment to the State constitution gives the Legislature power to impose the workmen's compensation obligation either directly or through a State or other system of insurance, or otherwise. The question is, is that language broad enough to warrant the imposition of a penalty such as the one that I have pointed out; and then if you say that it is, you have got to go further and ask, is it constitutional under the Federal constitution? Those are two questions which have been suggested. If you will turn to section seventeen you will find that a certain discrimination against aliens is provided for, and the question has been raised as to whether such a provision is constitutional under some of the treaties which have been made between the Federal government and other countries. Then again if you will turn to section twenty-one you will find stated a number of so-called presumptions. It is provided that in any proceeding for the enforcement of a claim for compensation under this chapter, it shall be presumed in the absence of circumstantial evidence to the contrary, first, that the claim comes within the provisions of this chapter. Can you have a presumption of a breach of a legal duty from one man to another? If widows and parents in Italy file a claim under the act, is it to be presumed that each claim is sound unless the employer proves that it is not? Is it to be presumed that what the employee says as to the extent of his injury is to be presumed to be true unless the employer disproves it? That question has been raised. Finally it has been

suggested that to avoid any possible technical questions it would be wiser to re-enact the law as a whole and if there are certain amendments which by the concensus of opinion it is believed should be put into the law, they can be enacted at that time.

It has been called to the attention of the committee that the method of defining employments covered by the act is a most unsound one. If you will look at section two of the act you will find that it refers particularly to forty-two varieties of employment, which it describes as hazardous employments. Now, as a matter of fact, many of those employments are not hazardous at all, and it would seem that the word hazardous in this act has no legal significance. The word hazardous in the Wainwright Act was inserted for a definite purpose, whereas in this act it would seem that it is mere surplusage. When you come to read this section it will be apparent at a glance that there is a very large class of employees the status of whom is doubtful. Some employees are clearly covered, some employees are clearly not covered, but then there is this great class where you cannot say whether they are covered or whether they are not, and you have here a factor which is about as fruitful a source of litigation as can well be imagined. As to this doubtful class you put upon the employer the burden of preparing for the defense of the claim of an employee on the basis of negligence-in other words, he has got to be prepared to defend either a negligence claim or a claim based upon workmen's compensation, and if he wants to relieve himself of this obligation, he has got to get both kinds of insurance. Furthermore, there is no provision in the act by which, if both employer and employee agree, that these doubtful cases can be brought under the act. Take, for instance, an employee of a millinery shop. If the