VERMONT \

BAR ASSOCIATION

Officers and Members

1922

REPORT OF PROCEEDINGS

OF THE FORTY-FOURTH

ANNUAL MEETING

VOLUM E XV

46 ANNUA L MEETING

REPORT OF COMMITTEE ON PROFESSIONAL CONDUCT.

JOHN G. SARGENT, Chairman.

To the Vermont Bar Association: Your Committee on Professional Conduct during the past

year has received and considered complaints against nine differ­ent attorneys. Of these, three have been dismissed because they presented no grounds of complaint which in the judgment of the Committee called for consideration, and the further reason that the complainants d eclined to appear before the Committee to substantiate or furth er state their claims. In one case the Committee on account of the y outh and inexp erience of the offending attorney concluded to, and did, dismiss him with a reprimand. •

In compliance with th e r esolution adopted at the last annual meeting of the Association, directing this Committee to treat any conviction of an attorney of a n offense involving moral turpitude as the equivalent of a complaint against such attorney, your Committee addressed to the clerks of the several courts in the State the following letter:

"Will you please examine your docket and write me the names of any members of the Bar who have been convicted of offenses against the laws of this state in the County or Supreme Court of your County within the past two years? If any such convictions have been had please state the offense and the term at which the conviction was had." and in response received information that three different attor­neys had been convicted of violations of the law. These cases were investigated, and in two we four.d no offence involving moral turpitud e and consequently took no further action.

One of the cases was State against Horace F. Graham. In this case the Committee held several meetings and considered

VERMONT BAR ASSOCIATION 47

the r ecords and heard and considered facts and arguments of counsel for Mr. Graham, and by vote of 3 to 2 adopted the following r esolution:

Voted, that Horace F. Graham on the 4th day of November, 1920, in the Supreme Court of the State of Vermont, was adjudged guilty of the crimes of larceny under the law of the State of Ver­mont, and that by reason of being guilty of this crime his name should be stricked from roll of attorneys of the Supreme Court:

And the Committee requests that the Attorney General institute proceedings to that end. and such action of the Committee has been laid before the Attorney General.

COMPLAINT AGAINST MATTHEW G. LEAltY AND M ELVIN G. MORSE.

In this matter complaint was made to this Committee that on th e trial of R edig Brothers v. Franklin Insurance Co. in Chittenden County Court, September T erm, 1920, a letter written by Mr. L eary and bearing date May 17, 1920 (and ma rked "J'.laintiff's Exhibit No. 23. J.H.M.") addressed to the Tax Commissioner at Montpeliel: and bearing the stamp of the tax commissioner's office "Received May 17, 1920" was intro­duced in evidence by Mr. L eary in behalf of hi s client for the purpose of showing that a partnership certificate, which was ma t erial evidence in the case, was received in the office of the Tax Commissioner on May 17, 1920, although the certificate itself bore the stamp of that office "Filed May 19, 1920" and that thi s letter was written by Mr. L ear y a s late as J a nuary 15, 1921, and that the stamp of the T ax Commissioner's office "Received May 17, 1920" was put upon it by Mr. Morse as late as J anuary 15, 1921 a nd introduced into the files of the tax commissioner's office after being so written and stamp ed.

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This matter was tried out before the Court in the trial of the Redig Brother s' case and a finding of fact made establish­ing the genuineness of the letter and of the da t es appearing

upon it.

About the beginning of the year 1921 the matter was re­vived and ther eafter some investigation made and exhibits collected, and later the complaint, evidence and exhibits collect­ed wer e turned ove r t o the Attorney General, and on the 21st day of D ecember, 1921, th e complaint and exhibits were laid before th e Committee, at Montpelier, by the Attorney General. The Committee, through its clerk, on D ecember 22, 1921, noti­fi ed the Attorney Gener al, Mr. L eary, Mr. Morse, Mr. Coffrin, - of the tax commissioner 's office,-Joseph G . Brown,- the insura nce comrniss ioner,- J udge ' i\Tilcox,- formerly Secret a ry of Civil and Milita r y Affa irs,- Mr. D eavitt and Mr. Black,­attorncys of the Insurance Compa ny in the R edig Brother s' case, th a t the Committee would be in session a t the office of Judge Darling, in Burlington, on Thursday , D ecember 29th, fo r th e purpose of hearing and considering the fact s in the case, and asked ea ch to attend and lay before th e Committee any fac t s that could be of assist a nce in a r r iving a t a just conclusion. The Commit t ee d id sit on tha t day, and Mr. L eary and Mr. Morse app ear ed with Judge D a rling and Mr. Bullard for them. Judge vVilcox, Mr. Goffrin a nd Mr. Brown app ear ed, t estified and cross-examined Mr. L eary, Mr. Morse a nd wit nesses produced by them. Mr. Black t elephoned that he saw no way in which he could r ender any assist ance in arriv­ing at the fact s in th e case because all he knew about it appear~ ed in the transcript of the trial of R edig Brother s against the Insurance Company, which transcript, with th e finding of facts by the Court th er eon, announced by JudgeButler, was before the Committee.

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V E R MONT BAR ASSOCIATION 49

T_here appeare~ before the Committee evidence concerning ~any i~k p ads of different colors, and stamps, which had been m ~se m the office of th e Commissioner of t axes during the p eriod from the latter p art of 1919 up to and including January 15, 1921,-and of confusion in the use of such ink pads and stamps, and of customs of using one ink paid for one purpose and a nother for another purpose, and of stamping p ap er s one or more days after the p er son doing the stamping r ecollect ed of r eceiving th em.

The essential point of the claim before the Committee as well as in the investigation laid before th e Attorney Gene:·al, was that th e letter da t ed May 17, 1920 could not have been written by Mr. L eary a t th a t date because he did not have the kind of stationery up on whi ch it was written in his office at that time and could not have had it,- this claim being founded upon the fact th a t this letter was written upon a kind of paper known as "Mohawk Bond" and bearing a water mark of an Indian with a drawn bow and arrow, a nd the words "Mohawk Bond", while th e st a tionery upon whi ch much of Mr. L eary ' s co r r espondence a t that p eriod , and all that was collect ed dur­ing such investigation, was written, was a paper wat er-lined and known as " J apan Bond". In th a t investicra tion th is fact of the differ ence in th e st ationery was discover el but 110 ment ion of it was made to M r. L eary . If it had been called to his attentio_n he could at once han shown to th e per sons inquiring the fal sity of the claim.

At the hear ing befo re the Committee, ma ny letter s, t aken by r eputable citizens fro m their fil es since the notice to Mr. L ea ry and ~1~· · Morse of t his hea ring, wer e prod uced by such r eputable c1b zens,- business concerns, lawyer s, farmer s, in.:. surance men, b~nkers ,-letters written by Mr. L eary to th e per sons producmg them and by such p er sons r eceived a t t he

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50 ANNUAL MEETING

time of their date, upon the same paper-"Mohawk Bond"­of the same weight and finish, and bearing the same printed letter heads, as the letter of May 17, 1920, and of dates cover­ing a period from April 1920 to October 1920 inclusive.

The Committee finds that before May 17, 1920 and on that date Mr. L eary had this kind of stationery in his office, that he wrote the letter of May 17, 1920, "Plff's Exhibit No. 23 J.H.M." on the 17th of May, 1920 and mailed it to the tax commissioner's office on that day and that it was r eceived in the tax commissioner's office on the 17th of May, 1920, and that the stamp of the tax commissioner on the said letter "Received May 17, 1920" was placed thereon on May 17 ,_ 1920 in the due course of business in that office,-and that if the investio·ation of this matter by others had been carried to the

5 h" extent of undertaking to find out from Mr. L eary anyt mg about it the facts concerning :Mr. L ear y's possession of "Mohawl: Bond" letter heads would have appeared, this com­plaint before this Committee wou~d ne' '.er ~ave ~een made,­to put it in the words of Judge 'V1lcox m hls t estimony before

the Committee:-"I had said at some of the conferences that it seems to me that

no action should be taken in this matter until it was dete~mined whether or not it was a fact that Mr. L eary had both these kmds of stationery in his office,-very possibly he had both kinds,-Mohawk and Japan bond,-and as far as I participated in tl~e conferei:ices I suggested to them that that thing should be d et ermmed. If it w.as d etermined Mr. L eary had both, that was absolutely the end of it; there wasn' t anything more to it.",-

Finally this Committee finds that the whole charge against Mr. Leary and Mr. Morse,-both and each,-is wholly without

any foundation in fact. The hearing on this matter was before three of the Com­

mittee, Messrs. Sargent, Laird and Watson. The entire pro-

VERMONT BAR ASSOCIATION 51

ceedings were taken in shorthand by Margaret Chestnut Buel, and later read to the others members, Messrs. H ealy and Jack­son, who have considered the same and all the exhibits. The Committee all join in the finding of fact.

Respectfully submitted, JOHN G. SARGENT, FRED L. LAIRD, ROBERT E. HEALY, s. HOLLISTER JACKSON, CHARLES D. WATSON.

PRES. REDMOND :-I call your attention to this part of the report: "In compliance with the resolution adopted at the last annual meeting of the Association, directing this Com­mittee to treat any conviction of an attorney of an offense involving moral turpitude as the equivalent of a complaint against such attorney, your Committee addressed to the clerks of the several courts in the State the following letter:" (See committee's r eport for letter).

MR. V\T. B. C. STICKNEY :-If I may be permitted to speak, I desire to make a motion with reference to the report, that so much of that report as refers to our Brother Horace F. Graham be not received by the Association, and that the com­mittee be discharged from further consideration of that matter, and that if any steps have been taken by the committee looking towards a presentation to the Attorney General by a commu­nication to him, that that communication be recalled by this Association. And just a word, without argument, in reference to the proposition. It is to obtain the sentiment of the Bar Association as to what course, if any, should be taken towards the further punishment of Horace F. Graham, who, as the record shows, has been convicted, and as the record also can show, has had that conviction and the stigma attaching by

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52 ANNUAL MEETING

r eason of it, wiped out by full pardon by the constitutional authority of the State exercised in that behalf. I make the motion involving these three points: (1) That the report be not accepted; (2) That the committee be discharged from furth er consideration of the matter of Mr. Graham; (3) A hypothe­tical motion,- if any communication has been addressed to the Attorney General that it be requested to be r eturned.

PRES. R ED MOND :-The report shows that it has been.

Mn.. STICKNEY :- Then it is on those three facts that I predicate my motion. Just a word in r egard to my position. It is my belief that while the foundation of our government is law, the essential of the law is absolute truth, and so I desire to explain my own position, and that I make this motion as a friend of Mr. Graham. I advocated his cause in Court in the capacity of a friend . Of course, technically, I was his attorney, but the relation of attorney and client, except in the technical sense, did not exist between us . I advocated his cause as a fri end, and make this motion as a friend . I make this motion, in the second instance, as a citizen of Vermont, having due r espect to the laws of Vermont, and to what, in my judg­ment should be the interpretation of those laws, giving every step taken, in reference to this brother of our's, its full legal and all embracing effect; and I make it as a brother of the Bar, as a lawyer interest ed by a life long a ssociation with the Bar of more than fifty years, and feeling sincerely, absolutely and truly that nothing can be gained to the Bar of Vermont by presentation of Mr. Graham's case to the Supreme Court for

its decision. Motion seconded. PRES. R EDM OND :-It is moved and seconded that so much

of this report as relates to Horace F. Graham, first, be not accepted; second, that the committee be discharged from all

VERMONT BAR ASSOCIATION 53

duties in r espect thereof; third, if any proceeding further has been taken in r espect to the matter with the Attorney General, or otherwise, that it be withdrawn. In that connection I should say that the report is that it was voted that he should be disbarred and his name stricken from the roll of the attorneys of the Supreme Court, and the committee request the Attorney General to proceed to that end, so that it is hypothetical there. Is there anything to be said upon the question?

MR. LAIRD :-Mr. President and Members of the Bar Association, I wish to be very careful and not discuss anything that does not appear in that report. That report says that the committee by vote of three to two adopted this resolution. 'Vhy I am careful about this thing I am afraid that some one will mistrust how I stand on it. I don't like the nature of this motion. In the first place I can't understand it; in the next place it should come up to accept this report by the Bar .Asso­ciation, with the exception, and exclude this matter with refer­ence to Governor Graham. I guess the committee is discharged otherwise. As a member of that committee I wish to say that this question of unprofessional conduct has come before judges and been passed upon, and some fellow that has taken $15 or $20, that does not belong to him, has been either suspended from practice or been disbarred, and some other fellow has been r eprimanded. Those cases where these things have happened in a good many instances,-the offense was not large, the party disciplined was not prominent. In this case, and every lawyer here knows it, Governor Graham was convicted of O'rand lar-o ceny, and had the ablest counsel in this state to defend him. Before our committee some of them said when a man was pardoned that that pardon washed him whiter than snow, and I think in some states the Court held that pardon did not wash a man so white if he had committed larceny, but what the

54 ANNUAL MEETING

Court has a right to take into consideration, th e right of whether he should be disbarred from the practice of law. I regret very much that it became my duty to be one of the three. I have no personal feeling in this thing at all, but I don't want any man to come before me and say, here was a governo~, a prominent official of this State for many ye~rs; who .stood high, and convicted of la r ceny , and y our Association did not take any action against him, you did not ask to have him disbarred; why? Because he was prominent, because he had been gover­nor, and a state official? And that is a question that this Bar Association is going to be up against. If, legally , this pardon washes him whiter than snow, let the Supreme Court say so, but let us not take the r esponsibility. I don't want to take the r esponsibility. I am not asking these lawyers to make up their minds on this question better than I can, as to what they shall do, but if this Association is going to amount to anything, as r egards discipline in lawyers, as regards setting a high moral standard, as regards making an impression upon a lawyer that he must be honest and take care of funds in his hands, and trust funds and everything else; and then when a prominent man come: .up they have got to stand up just the same as if that was a little fellow. That is why I believe, in this case, that the action should be just the same against Governor Graham as against any lawyer, however humble, however little, y ou have known. I have belonged to this Association for a good many years and know of certain cases of disbar~1ent, but this .is the fir st that I have ever seen the most promment lawyer s m the state get up and maintain that a very prominent man, who committed larceny, should not be disbarred. I never have seen those fellows get up and protest against the disbarment of some little fellow. I believed as far as my vote is concerned, that I had a duty to perform, and I voted for this r esolution.

VERMONT BAR ASSOCIATION

MR. STICKNEY :- I would like to interrogate Mr. Laird. You say y ou wer e a member of the committe.

MR. L AIRD :- I was. Mit. 5-nCI{NEY :- V\Tho r epr esented Governor Graham be­

fore you? MR. L AIRD :-Hale IC Darling. MR. STICKNEY :-He was present at the meeting of the

committee? Mit. L AIRD :- I think he presented a brief to the committee,

but I am not certain whether he was present. MR. STICKNEY :-When was the hearing at which you

wer e present? MR. L AmD :- The first meeting we had in Judge Darling's

office, in Burlington. MR. STICKNEY :-vVer e y ou present at that meeting? MR. LAmD :- I was present when I represented Mr. Gra­

ham. I was not present when you were there, but I was present at a me~ting in Burlington when a brief was presented.

Mr. Stickney :- What notice of that meeting was given by the committee?

MR. LAmD :-I don't know of any. lVh. STICKNEY :- Do you know of any notice being given? MR. LAIRD :- I don't know about that. MR. STICKNEY :-Why I asked, it is the first I have ever

heard of any such meeting. I never appeared when there w11;s a committee of five in sess ion, and according to y our r emarks the committee before whom I appeared stood two to two ..

MR. TARBELL :- Gentl emen of the Vermont Bar Associa­tion, as one of the older members of this Association I move to do what I have seldom done here in the meeting, and ask that I may occupy a portion of your time. I am ve.ry much interested in this motion, and I wish now to say that my

/j(j ANNUAL MEETING

interest in it is not because of the prominence of th e gentlema n whose character is in question her e. If he were th e least, if he had been the least among the citizens of the state, my interest and my opinion in this matter would be the same tha t it is now. I would not like to be understood here as favoring any letting down in the stamina that is required of the members of this Bar and th e Association. I believe with all my heart, and rejoice in the fact that we are on the right track in requiring a higher standard and more purity of conduct, and I rejoice in every step that has been taken in that direction; but the reason I stand here and favor this motion is because of per­sonal acquaintance and p ersonal contact with Mr. Graham, I am, down deep in my heart, convinced of the essential integrity of the man. The fault that was committed by Mr. Graham was largely the fault of the accounting system at the time he was in office. He did err grievously. His error has been wiped out, so far as we are concerned, by the free and full pardon that he has received, and I believe that we should consider him as standing here free from that offence, because of the pardon that he has received. There is a good old book that I have not read as much a s much as I wish I had, and thinking this matter over I was r eminded of an incident that is recorded th ere, where one was guilty of an offence and where people were clamoring for an execution, and those people were un­mindful, evidently, of their own stain. I am free to tell you, gentlemen, that if I should stand her e and vote for the dis­mission of this man from the Bar of the State that I should fail to ask of myself the question,-! should hear the words, "Let those who are without sin among you cast the fir st stone." I am free to say, gentlemen, that I believe the charges against me, although I had not been convicted, would be serious enough so that ·r could not afford to send any stones. I believe the essential integrity of that man is higher than the integrity

VERMONT BAR ASSOCIATION 57

of the members of this Bar, and if I were to be the only one in this Association to stand here and say that I believe he should be considered here free of the charge for which he has been convicted, if he should still stand as a member of this Bar, and the State have the benefit of the great good he can and will accomplish, if he remains a member, I should still take that stand.

1\fn. H EAJ,Y :-I was a member of the committee on pro­fessional conduct that passed on this matter, and at the meeting a year ago the Bar Association voted that this committee should act, upon knowing and learning that an attorney had been convicted of an offence involving moral turptitude, . and my recollection is Mr. Stickney was present when that was passed, and-

MR. STICKNEY (interrupting) :-I was in Africa.

Mn. HEALY (continuing) :-the instruction was given at that time. By the constitution of the Bar Association this committee is given certain duties, not entirely pleasant. The committee has p erformed that duty to the best of its ability. A notice was given Mr. Graham to appear, and I recall dis­tinctly attending a meeting where Mr. Stickney appeared and represented Governor Graham, a nd presented a brief.

:MR. STICKNEY :- N" 0.

MR. HEALY :-There was a memorandum presented that some one stated was prepared by Mr. Darling. I remember y ou were present and made a st atement in r esp ect to Gov­ernor Graham.

M1t. S'rICJ<NEY :- I did; I r eceived a paper from Mr. Darling a nd sent it by mail to Mr. Sargent.

MR. H EALY :-It came at your agency, with the legal point involved, which was a claim that the pardon exonerated Gov­ernor Graham. That was investigated carefully, and the

58 ANNUAL MEETING

majority of the committee came to the conclusion that it was not law. It was my opinion that the weight of the authority was the other way and that there were cases that so held. If it is a pardon it is a defence which will be presented to the Supreme Court, and it is not a matter that can be decided by a vote, and is a matter to be decided by the Court, and nothing has been done which deprives Governor Graham of that defence. Your committee, in the discharge of its duty and in pursuance of instructions given it, has made its report, and is met with a motion to the effect that that part of the r eport in which it stat es its position in regard to Governor Graham shall be rej ected. I do not think that is fair treatment of the com­mittee. How idle it is to stand and talk about r ecurrence to fundamental principl es and the duty of lawyers, to teach re­spect of the law, and in the next breath to condone the r etention of a man convicted of taking a large sum of money. ·what is the use of sending secretaries to meetings to raise standards, and the same afternoon vote to r etain in the Bar, against the committee's r eport, a man convicted of larceny? How idle it is to say it was because of a fault in the accounting system. V1T as the money taken because there was a defect in the accounting system? Does that appeal to you as being good sense? If the accounting system had been twice as bad he could have taken twice as much .... There was larceny of a stated sum of money. If y ou think ethical standards can be raised and r esp ect for the law can be engender ed by con­doning that sort of thing, all right, but it is not according to my ideal of ethics, or how the matters would stand before the people of Vermont. I cannot understand or · r ealize that men of high standing themselves, the sort of men who have spoken in behalf of Governor Graham, should let their sympa­thies so far overcome them that they can condone a man

VERMONT BAR ASSOCIATION 59

convicted of larceny. I think in justice to this committee and the law that you ought to reject a motion of that kind.

MR. SHURTLEFF :-I r egret that this motion has come up in this manner, because if we pass it we pass along with it a vote of censure on the committee. They are to be r elieved of furth er consideration, according to its t erms, and discharged. I think that, outside of the merits of the case, it is quite un­fo r tunate that the question comes up in thi s way , but going on to the merits of the case I would like to read into the record two certain articles, or parts of two articles, which will allow us to see ourselves as others see us.

1V1R. STICKNEY :-Those have not been impounded, have they?

MR. SHURTLEFF :-Not that I know of. VVe may think we are a strong enough body to do anything and have it get by . H ere is the way a paper from Ohio views the situation, and I will read this into the r ecord in order that we may see ourselves : (reading)

"'Vhen H. F. Graham, former governor of Vermont, was sentenced in the Supreme Court of that state, after having been convicted of embezzling state funds, he appealed to Governor Clement for an unconditional pardon.

"And the very day the embezzler was sentenced by the highest court in the state he was given his unconditional pardon.

"That is how the chief executive of an American commonwelath holds the highest court of his state in contempt. If that isn't real contempt of court, what is?

" Sentenced to prison for five years; pardoned immediately by the governor, before one foot had been set within P enitentiery bounds-can you wonder that other convicted criminals of Vermont may entertain a decided f eeling of contempt for the courts? If noncriminal citizens of that state escape that feeling in respect to their courts, it can only be because they have too g reat a contempt for governor."

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I don't stand sponso r for what is there said. I am r ead­ing that into the r ecord in this company only that we may get a little light as to how some others see us. It perhaps goes, without saying, to show that other localities and other muni­cipal bodies in other states entertain a like feeling, whatever we may think in Vermont. L et us analyze just a little bit what it was that this man was convicted of that calls forth such a . censure as that from a paper way out in Ohio. The amount which this member of the Bar was charged with taking if I recollect right, was between $25,000 and $26,000 of the State's money.

MR. STICKNEY :-The demand made on him was for $19,000, and he paid it back.

MR. HEALY :-Why did he pay it back if he didn't take it? MR. STICKNEY :-He did take it. MR. HEALY:-That is larceny, isn't it? MR. STICKNEY :-No, not in my opinion.

MR. SHURTLEFF :-There is one thing that the sponsors of this motion don't like to face, and that is our Supreme Court. Brother H ealy was right when he said if this pardon was something which washed him white it can be pleaded before that Court, and a rgued. Our Auditor's r eport shows that there is still a deficit of between $5,000 and $6,000 that some­body evidently has not p aid back, and which, as my guess, now leads an average person to think that somebody did keep. Now the proposition is this: that because somebody can put that through, beca use they can be washed of the offence by a pardon, without saying what kind of wash is to be used in the process, tha t he is able and should be held as a member of this Bar as though he had done nothing. Now, Mr. President, and members of this Association, if that is good logic and a good principle to follow, for heaven's sake don' t let us stop with it

VERMONT BAR ASSOCIATION 61

here, but t each it in the public schools and defy it from the pulpits. $25,000 taken, $19,000 paid back, and something like $6,000 kept. That makes a man whiter than snow. Now, I don't want anybody to think tha t I have any personal feeling in thi s matter because it is not a question of what we are going to do to Graham, but a question of what we a r e going to do to ourselves, and see how it effect s this Ba r. vVould y ou like to have that Ohio paper, or any other paper spreading about the country a like r eport of the Ba r of this Association, ending up with tha t question, "If tha t isn't r eal contempt of courts, what is?" That speaks of things getting by the Chief Execu­tive, a nd now it reaches the second line of defence, the Bar Association, and if it gets by this Association it may strike a third line of defence. What is the use, after such an admir­able address as we have had from our President, telling where the Ba r should stand against radicalism, bolshevism, and anar­chism, what is the use of incorporating such an address as that into our r ecord, and then give those very people an ar­gument to proceed upon ? The chief argument of the Red today is that the law is for the influential fellow; it is not for me. H e meets the immigrant with that argument and says the law is for the influential man; the poor man goes to prison; the influential man escapes. There is only one r eply that can be made to that argument by an association like this, and that is that it is not true. Once make an exception, and what hap­p ens? Th we R eds can point to Vermont and say, there is an illustration, and there is where you will find the logical argu­ment that the law is for the influential man and not for the poor man.

Pardon me if I relate an instance which happened in my own case. An acquaintance of mine in Montpelier stole $15 or $20 a nd served a short t erm in prison. When he met me he

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said, "Say, will you tell me why I had to go to prison when that man didn't? I didn't take $25,000, I only took $15." Once let it get about that an organization like this, the Bar and the lawyers favor that sort of thing and what will be done? You immediately put into the mouth of the R ed that same argument. He can show you what the executive of Vermont did, and now look what the lawyers did. So the position they take is if you don't believe what I am telling y ou, that the law is for the influential man, look what Vermont did. If it gets by this line of defence what does it strike next? It comes up against our courts, should they think fit to take action of their own notion, as then can? The next argument is for our courts to see wheth er they will take it up of their own notion. It was not a question of what we were going to do to any individual, but what we wer e going to do to ourselves. Any citizen can present this charge to th e Supreme Court. It p erhaps might be poetic justice if it was signed and presented by a bishop.

'i\T e are at the parting of the ways. I believe that this Association in the past has been a great power for good. I have not belonged to it as long as some of the older members, but during the time I have, and looked over its past, I believe it is a power for good. If I had no ill will towards this Asso­ciation there is nothing I could think of better to show it than to say, go ahead and pass this thing and take the consequences.

There is a great body of p eople who talk as if lawyers, as a class, were dishonest, but when you go among that same class of people you will find each man has some one lawyer that he thinks is honest, and you bear that man spoken of as the only honest lawyer. If you were to pick out all the honest lawyers of that type and character you would find it com­prises a great many of this Bar. When you come to count

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him up he is in quite a majority. Do you think that this is going to improve the influence which we have had in the past? Only about four yea r s ago there was an effort to organize the courts back to an old system, and it was advocated by an executive, and backed up by certain newspap er s. How did you prevent it? Simply because in that legislature, among the individual member s, there was some honest la wyer who could talk to each man and make him see it was all wrong. Do we want to do anything that will give us a blow from which we wont recover? \i\T e might go back and cite furth er instances where we have had occasion to influence legislation. Do we want to give up that heritage we have got which will make these people say, I told you lawyer s, a s a class, wer e dishonest, and now see what they have done. I hope that this motion will not prevail, a nd I say that with the kindest feeling towards the organization.

MR. YOUNG :- There is probably no man in this Associa­tion who has entert a ined more cordial r elations with Governor Graham than I have. Ther e is probably no one her e who was more sorry to find what had happened, and I certainly, from p er sonal relations and feelings, exceedingly regret any action of this Association, or tha t the Attorney General may find him­self constrained to take action to disbar him, because I am sorry it is necessary, but I think that Mr. Graham, in this case, is a mere incident. The committee have r eported that a mem­ber of this Bar has been guilty of larceny, and the only reason he does not suffer all the moral turpitude that goes with that is a pardon. If that does wipe out all the moral iniquity and r estores him to the same standing as the man who never was guilty, and the Court thinks so, then the Bar have done their duty. It seems to me that the motion presented raises this question: Does the Vermont Bar Association consider that

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grand larceny is any obj ection to membership in the Bar? If we prove it on th e part of our members and think that those member s are ·guilty of grand larceny , we should adopt this motion ; otherwise, not.

l\llR. M AURI CE :-In anything that I may say I don't want to be under stood as in a ny way suggesting or intimating the slightest criticism of the action of the committee. I want to call your attention to a phase in this matter which we have not talked about at a ll. It is said that a prominent man is being brought before us, and we are asked not to act because of his prominence. Gentlemen, I knew Horace F. Graham in 191 7 when he was attending the war meetings over the state, and saw the enthusiasm with which he was greeted by prac­tically the whole state in his work. Horace Graham was then a prominent man. Today Horace F. Graham is a broken down old man, sitting on that little farm in Craftsbury. That, gentlemen, is the prominent man that it is said we must not waive a single jot of the law in his behalf. Ther e is such a thing, gentlemen, as there being a sufficiency of punishment. If I r emember anything about what the Good Book used to say, punishment was supposed to be for two purposes, the first for its effect upon th e individual, and the second for its effect upon the general public. I believe tha t you and the people of Vermont will agree with me when I say that no man in Vermont, in your recollection or mine, has been punished for what he did as has Horace F. Graham. I believe he has been punished enough. That is the only ground upon which I put this. I don' t want to condone. As the Supreme Court has said, he knew, or ought to have known better. I don't make any ques­tion but what M r. Graham did wrong. I don't make any claim to you that he was washed whiter than snow by pardon, but I do know this, that as one man he has r eceived all th e punish-

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ment necessary. I don't believe, if this Bar Association does not endorse this r ecommendation for Mr. Graham's disbarment, that it is not going to have its influence on this Bar. I don't believe there is any young man growing up who needs any more punishment than that which the laws of cause and effect have handed out to Horace F . Graham, where a man who probably could have had any office within the power of people to give,­it is something that we don't need to give any more punishment for, and simply because I think it is enough, without any dis­respect to the committee or to the ethics of the Bar, I hope that we may express ourselves as being inclined to be merciful

to a man who is down and when there is not much further to go.

MR. McFARLAND :- It is not often that I have availed myself of meeting this association, a lthough I have been a member for many years. I think I have never trespassed upon y our time and patience to say a word to you, but I felt con­strained to come here at this time, knowing that this matter was to be considered, and I have come her e, I want to have you know, uninfluenced by anybody, but moved by a feeling of duty for a man whom I have known for a great many years, and who is a friend of mine, and I am a friend of his. I believe in coming to you and saying what I shall say I show no incon­sistency in being a good member of the Bar and having at heart the highest interest s of the Bar Association, and at the same time feeling that I could support this motion. In the first place I have had a very long personal acquaintance with Horace F. Graham, r eaching back more than quarter of a century, well nigh on to half a century, and there has been crowded into the years very much of business relations with him. It is probably. true that our business r ela tions far exceed any that he has had, outside of his capacity as Auditor or Governor, that of anyone else living, and in all of this time

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I have found him to be an honorable man. I never have seen anything that led me to think that ther e was inborn in him anything of the nature to a crook or do crooked things. I believe him to be, natura ll y , a man of integrity, a nd that out of circumstances, that it is not necessary to go into here, but that every one of you kn ow more or less of, this thing, which is not to be condoned, not held out to the p ublic or ourselves in a ny such ligh t as that we say ther e was nothing wrong about it, because th ere was something wrong. I will not go into th e question as to wheth er th e un conditional p a rdon of Governor Graham wipes t he slate clean or not, for I do not think that enter s into my consideration of the question. Now I believe, if I understand, in the judiciary a nd their walk of life, that a man's previous life and charact er a nd his service, such as Horace F. Graham's has been, is not to be lost sight of. Ther e is no question but what Horace F. Grah am made this State a most effii cien t auditor, a nd made a r ecord as governor that has been excelled by few of th e men who have fill ed the guberna­torial chair in the St a t e of Vermont, and he se rved well in the str enuous time. I think it is a proper thing to t ake into con­sid cra tion wh at of the ma n before this deplorabl e act? What is his r ecord in Orleans County and the State as a citizen, outside of the public walks of life ? You go into Orleans County and th ey will tell you, as they told me year s ago, that he is "Honest Horace". 'Vhat is the Governor's present condition ? H e is not a prominent man, except in the r ela tions we are now considering. H e is a broken down man, physically; broken in spirit a nd body, up there on that littl e farm in Orleans County, waiting for the clay when the summons shall call him down to th e river across which he must go, never to r eturn. Now is it necessa ry, to suppo1~t our honor as an association, is it necessary, from any point of view, considering all of the circumstances of the case, that this Association, of

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which he has been an honored member up to this time, shall deal the final blow, or be in, so to speak, at th e killing? It docs not seem necessary . There is always a pu_rpose for all acts , whether it be public or private. It seems to me th er e are but three things that can be called the purpose; one is for the protection of the public,- that is, that thi s Associa tion shall not give its endo rsement to any ma n that he may go out and prey upon a n unsuspecting public. Governor Graham,-allow me t o use the word a nd use it with r everence because of his ser vice to this Stat e and th e nation in a trying time,- Governor Graham never did figure prominently at the Bar. He has practically no practice now. By allowing him to cont inue as a member of this Association we are not holding out t o the public any clanger. vVe are not putting him where he is to do any harm; even if we wer e not it is not in his nature to do it. And that is about the only thing that has been a rgued here why we should pass this final judgment on him. I cheri sh the honor of this Association as much as any of you. I do not belieYe it necessary, for th e honor of thi s Association, that we should at this time deliver the death blow to Horace F. Graham. H e is a man whom you and I have seen climb high on the ladder of political preferment, and whom you and I see now at the foot of the ladder, trying ~imply to stand during the r emainder of his life here, which is probably not long. Shall we push him over ? It does not seem to me necessary. You may bring y our imaginings into the full est play and y ou cannot picture th e mental torture and agony that Horace F. Graham, night aft er night, and hi s true and loving sist er, have suffered. Punishment such as I hope may never come to any of us. He has been puni shed to the limit. You r emember th e words that Shakespeare puts into th e mouth of one of his players in the " Merchant of Venice" ? I will not say that I will give you t he words, but th e sense of them:

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"The quality of mercy is not strained; It droppeth as the gentle rain from heaven Upon the place beneath: it is twice bl est; It Olesseth him that gives and him that takes. 'T is mightiest in the mightiest: it becomes The throned monarch better than his crown ; His sceptre shows the force of temporal power, The attribute to awe and majecty, Wherein doth sit the dread and fear of kings; But mercy is above this sceptred sway; lt is enthroned in the hearts of kings, It is an attribute to God himself; An earthly power doth them show likest God's When mercy seasons justice."

To get back to the illustration of my friend who spoke, at my right, I want to go a little further than he did. Do you remember what Christ said to that sinning woman, "Neither do I condemn thee, go thy way and sin no more." Horace F. Graham will sin no more, and I believe, brothers of this Asso­ciation, that we shall do ourselves dishonor down deep in the consciousness of our heart. We should think that is right what God himself would do if he shows mercy, as He must, to all of us, for we are not entitled to anything unless it be mercy. I believe that we shall do ourselves honor if we shall vote against this motion, and say to Brother Graham, go thy way, neither do we condemn thee.

MR. PRESTON :-I move that we proceed to vote without

any further discussion. PRES. REDMOND :-That is not the custom of this body. MR. STICKNEY :-I rise to say it is urged here as the rea­

son why we ought not to reject this report, that the Supreme Court can determine the question of the efficiency, or effect of the pardon. It is an astounding proposition that when a dient presents a case to a lawyer, that lawyer should regard 11 ,,

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it as being his duty to examine the facts and the law of the case, and if he find s that the law will not warrant the client's position, to advise him against invoking the action of the Court. Is that surprising? Now we are lawyers. We are passing upon this question as a bar association, which is an association of lawyer s, and it behooves us, as I say, to look this matter in the face, and it is noticeable that in the remarks of our brethren who oppose this motion, nothing is said in reference to pardon except to ignore it, and

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say the Supreme court can pass upon that, and one of the brothers of the committee says the weight of authority is against the proposition, that the pardon is available in advance of any charge based upon the offence for which th e pardon was granted. In that r espect he differs altogether from the authority of the Supreme Court of the U nited States, (to which reference has been had by the Presi­dent in hi s able address,) and is a matter involving the question of the p ermission_ of an attorney to practice law, or rather to put it exactly as it was put, the question of the constitution­ality of the law of a sover eign state forbiding a man to practice his profession for the reason that he could not take the oath r equii·ed by the law, was presented to the Supreme Court of the U nited States, and they said that the applicant had been pardoned, and the Supreme Court of the U nited States say that that law is unconstitutional, and you will pardon me if I r ead a brief extract from the opinion of Mr. Justice Field, whom we all recognize as an eminent lawyer. He says :

"A pardon is an act of grace by which an offender is r eleased from the consequences of his offense, so far as such release is p-racticable and within control of the pardoning power, or of officers under its direction . It releases the offender from all disabilities imposed by the offense, and restores him to all his civil rights. In contemplation of law, it so far blots out the offense, that afterwards it cannot be imputed to him, to prevent the assertion of his legal

70 ANNUAL MEETING

rights. It gives him a new credit and capacity, and rehabitates him to that extent in his former position."

Mr. Justice Field, Knote v. U. S. 5 Otto. (95 U. S. ) 149: 24 L. Ed. 4<42, 443.

The question is, from his profession ? th e Court says :

wh ether you are going to exclude him I s that in di sregard of th e pardon. And

"Exclusion from any of the professions or any of the ordinary avocations of life for past conduct can 'be r egarded in no other light than as punishment for such conduct."

"To exclude him, by reason of that offense from continuing in the enjoyment of a previously acquired right, is to enforce a punish­ment for that offense notwith standing the pardon."

Mr. Justice Field, exparte Garland 71 U. S. (4 Wallace 333, 399. 18 L. Ed. 370.)

That is the opinion of Mr. Justice Field d elivering the judg ment of the Supreme Court. Mr. Justice Mill er di ssented from that opinion, but a ll the oth er judges concurred.

That is a question involving the disbarment of the peti­tioner, who was afterwards a n attorney general of the United States . Apply that law to this case and the fact does not exist which justifies the action of this committee. Our. con­stitution prescribes, in th e case of a conviction, of an offence, the committee shall do so a nd so. I stand here to criticize archieves nor newspaper offices in Ohio, and r eports predicated upon misinformation. The extract read predicated upon the assumption that Governor Gra ham asked Governor Clement to pardon him after had had been sentenced, which is a n absolute falsehood. Governor Graham, was pardoned by Governor Clement, and th e r ecord shows the ground upon which he was pardoned. I don't care to go outside of the r ecord . I was instructed in the law, so far as r elates to the practice of law in Vermont, by an old fa shioned attorney who practised law her e in this state, and with credit to himself and honor to the pro-

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f ession for 76 years, and who told me ,you may go before a justice of the peace, or an ordinary tribunal, but stick to the r ecord and don't go outside. Is there any r ecord that Horace Graham has made since the commission of the last offence with which he is charged, that justifies any man saying to his face you are a scoundral, y ou are a thief? I s th er e anything h e has done in th e last five years, since the commission charged in the last count of the indictment? I challenge any one of the com­mittee, or anyone in the state to point to such a thing. Is that man to be r egarded as a criminal intent? Does treating the fact as it is today involve any discredit to this Bar any further than that they are doing something a little unusual in treating fact s as they are instead of as th ey are distorted by newspaper s or others of a different political complexion? Now let us see what the present situation is. It is as outlined by Brother Maurice a nd Brother McFarland, and in that con­nection I may be p ardoned if I read the letter written to me by Mr. P. M . M eldon (reading)

"I most earnestly hope the matter of the disbarment of Ex­Gov. Graham will not be pressed. I am not familiar with the evidence in the case, but have the impression that the offense was technical. Certainly no one who knows Gov. Graham would charge him with deliberate crime.

"I believe in expiation and I also believe that Charity is the greatest of the three. And I believe that no Vermonter can recall the untiring, unselfish devotion of Gov. Graham during the gre~t war and say that he has not expiated any offence. Can any of his critics or those who pursue him now show a record approaching hi s ?

"It seems to me that the full pardon granted him gives him a clean bill of health and should give him a fr esh start, and now to deprive him of a livelihood would be a greater larceny than that of which he was accused .

"It cannot be said that this matter is pressed because of fear of public clamor. The public is not now calling for any further

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attack upon Gov. Graham, and in any event such fear would be a p itiful demonstration of weakness. It cannot be presented for the sake of malice or r evenge, because, while recognizing the great importance of the Vermont Bar Association, and the dignity of the bar itself, I respectfully submit that the prerogat.ive of ven­gence has been already assumed by even a greater Power."

There is just another communication from Governor Pin­gree. (reading)

. " I regret to hear that disbarment proceedings are contemplated agamst Horace Graham. It seems to me that he has been suffi­ciently punished for an offence which he led himself into without a criminal intent. His punishment has already been mortifyin<Y to him beyond what many of us could bear and live, and this and

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his reparation should shield him from the contemplated action of the Bar. His offence was not as a member of the Bar, and it does not appear necessary to revive liis case for the vindication of the Bar Association."

I have a great ma ny other letters from other members of the Bar, which I don't think it is necessary to r ead, for I think that every member is going to vote upon this question upon his honest conviction of what is best for th e A ssociation and

' what the actual existing present circumstances r equire. Does it r equire that this body of lawyers of Vermont should stamp upon this poor man, whose whole life, since his r ealization of the iniquity of what he had done, has been made up of days of agony and such bitter distress such that I hope none of us may ever experience it, even when called to the last accounting.

M1t. H EALY :- Lest there should be any misapprehension occurring out of what Mr. Stickney has said, I wish it to be understood that I have always been of the same political faith as Mr. Graham.

MR. STICKNEY :- I was looking at Mr. Shurtleff when I said that.

MR. HEALY :-I was always very friendly with Governor Graham and was not influenced by personal or political motives.

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As to th e case in the Federal Supreme Court that was considered car efully, and other cases in simila r Supreme Courts where the decision of the F'ederal Court was disting uish ed upon the ground that the Court undertook to disbar the p etitioner in the F ederal Courts doing something which was bidden by the F ederal Statute. The offence charged ther e was that h e had taken part in the W a r of the R ebellion as a n officer, or soldier in the southern army, a nd at the end of th e war , when pardons wer e granted, it was accompanied by a F ed eral st a tute, and has been distinguished upon that ground by sever al of the Supreme Court judges of the country.

There has been a challenge issued to point out anything Mr. Graham has done in the last five year s, a nd I cannot find out anything he has done. There was no voluntary conviction tha t grew out of his consciousness. It was found out. It was not a case where one ma n took one amount, but the takings were in several amounts. It was not a case where a man su ccumbed to one sudden t emptation, it was done over and over again. Nobody made him do it. How can a man commit larceny and nqt have a criminal ending unless h e is hynotized? There was a punishment of men guilty of that offence. I ap­peared for two boys, who got two years apiece for breaking into a store when they were drunk on liquor bought from saloons licensed by the State of Vermont. Another man comes along who has been successful in polits, that ever ybody likes and a great many people love. He was trained and educated as a lawyer, he was not ignorant. And over a nd over again, over a period of I don't know how many years, the money was taken over and over again. Now, where are the circumstances that relieve him for the moral responsibilities for that? It is true the pardon covers his rights as a citizen, but there is not any governor in Vermont who can say to those five men who sit

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on th e Supreme Court they shall have or they shall not have a certain man a member of their court. No governor, past or present, can say to th em that ther e shall be an officer who has stood before you five men a nd been there convicted and sen­t enced as a felon for the crime of larceny, a nd that man, who after that moment was a felon and gui lty of larceny , is now by my act, me being the governor, still a member of your court, and you can say or do nothing about it? Now, I don't believe that that is the law, a nd I don't believe that the fi ve who who occupy our Court will eve r say it is the la w. People have said that that sentence that the Supreme Court imposed upon Horace Graham was just play acting, that they never would have sentenced him to jail if they had not known the governor was going to pardon him. I say that the time has come to give our Supreme Court the opportunity to p ass upon this matter in th eir own right . Every lawyer connected with this has done his duty, from the States Attorney to the Attorney General , and the lawyer who sat on th e Bench, and the lawyer s who sat upon the Supreme Court and passed upon it, a nd the lawyers who defended Mr. Graham, all did their duty, but one ma n, who was not a lawyer, issued a pardon, \vho, it is now said, points to the Supreme Court. Is the Vermont Bar Asso­ciation willing to place itself on r ecord as willing to tolerate that ,-as a member of the Cour t a nd one of those men who are to teach respect for law a nd raise the standard of ethics? There has been something said about Shakespeare and the Bible, and I don't know much · about either one, but I have r ead the Ten Commandments, and one is, "Thou shalt not st eal".

MR. STICKKEY :-When Mr. H ealy undertakes to state the nature and trial of Mr. Graham he is beyond th e proceedings that the testimony taken will show. I think he should be con­fined to the r ecord. There is no criticism upon the action of

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the Supreme Court. There was a r ecord, a conviction, and t hey gave the sentence after due consideration of what the penalty should be. That record and the sentence were before the Governor and the Governor issued his pardon and gave his reasons for it. \iVhat actuated him? N othing was said about those r easons in the extract of th e paper, and I will r efer to the original proposition, why should we now, inasmuch as there is no question legally, but so far as the crime is concerned the pardon wipes out the crime and has a n effect upon the culprit. That being so why should the Bar Association r ecommend the p rosecution of Horace Graham by the Attorney Gener al ? I s it because it has nothing else to do ? It is said, let the Su­preme Court pass upon thi s. L et me tell you an applica tion of that doctrine .... ... In 1880 there was a question of wliether Judge Barrett should be elect ed . H e fai led of election. There is a man in vVoodstock against whom Judge Barrett had some grievance, and Judge Barrett gave a decision against him, a nd he was questioned about it, "\iVhy, Judge, do you mean to say that is the la w?" " N o, but the Supreme Court can say whether it is the law." "How can it get ther e? This poor fellow has not the money to carry it to the Supreme Court?" " Oh, well, that is his lookout."

Calls for "Question, question".

PRES. REDMOND :- It is my duty to say that I have re­ceived, as President, several letter s from differ ent members· of the Bar, some of whom are her e a nd have spoken,-written to fill the contingency of their not being here. One from Gov­ernor Grout, A . ·vv. Farman, Nathan N. Post of St. Albans, and Aaron Grout.

The question before the house is on a motion to the effect t hat this r eport of the committee of professional conduct, so far as it deals with Horace Graham, be not received, and that

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the committee be discharged, and that any proceedings already taken with the Attorney General, or otherwise, be withdrawn: Are you ready for tha t question? Those who would so order will say aye; opposed, no.

The Chair is uncertain and will a sk those who would so order to stand and r emain standing until counted ; those who are opposed, also stand . .

SECRETARY HoGAN :-The count, as I have made it is 37, yes; 34, no, in which I have included by own vote.

PRES. REDllWND :-And so the motion prevails. MR. SHURTLEFF :- I think this Association should be con­

sistent and treat all its members alike, and in order to bring the matter before the meeting I move that the committee on profe.ssional conduct be instructed not to proceed against anv member guilty of any offence less than that of Horace F. Graham.

The motion was not seconded. MR. PoRTElt :- It has already been suggested by a certain

speaker that we want to be careful what we do to ourselves. L et us not make a fool of ourselves.

Adjournment was taken, without any motion having been made to that effect.

Adjournment.

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EVENING SESSION, JANUARY 3.

The evening session was held in the Hall of the House of Representatives, President Redmond presiding.

In introducing the speaker of the evening President Red­mond said: We are to be congratulated, and are very fortu­nate in having for the speaker of the evening one who needs no introduction to this audience, nor to any audience in this country, for as a judge, as a jurist, as a patriot he is known and respected throughout the length and breadth of this land, and I am proud to present you Judge Alton B. Parker, of New York, Former Chief Justice of the Courts of Appeals. (Applause).