AFTERNOON SESSION.
The SPEAKER resumed the chair at 2 o'clock p. m., and took up the special order of the day, viz: Mr. Wilson of Ripley's Mileage and Per Diem bill [H.R.73.]
Mr. BUTTERWORTH, on whose motion the special order had been made, in view of the sparse attendance of members, moved that the bill be referred to the Committee on Ways and Means.
It was so ordered.
The SPEAKER then returned to the call of the roll for
page: 165[View Page 165]NEW PROPOSITIONS.
Mr. WALKER introduced a bill [H. R. 159] to regulate the practice of dentistry in the State of Indiana. Dentist to hold a diploma, or a certificate of qualification from the State Dental Association. Penalty, $10 to $200.]
It was referred to the Judiciary Committee.
Mr. CAUTHORN, a bill [H. R. 61] to abolish the Court of Common Pleas in the State, and establish a Probate Court in each county; to provide for the judges thereof, their compensrtion, and the transfer of business to the Circuit and Probate Courts.
It was referred to the Committee on the Judiciary
CORRECTION ON CITY TAX LISTS.
Mr. CAUTHORN introduced a bill [H. R. 162] for an act to authorize cities to correct erroneous listings in the description or assessment of real estate liable for city taxes, and when corrected to collect all taxes due thereon, and to authorize them in to order the correction of false and fraudulent lists of property or the value thereof. He explained the provisions of the bill at length. It gives the city authority, where real estate has been iricorrectly listed or described, to change and correct it. The second section is to enable cities to correct erroneous or fraudulent listings by taxpayers--I will move for a suspension of the rules and restrictions that it may be at once put upon its passage.
The restrictions were suspended and the bill was finally passed the House of Represervatives; yeas, 72; nays, 2.
EMPYRICISM IN MBDICINE.
The SPEAKER announced the consideration on the third reading of Mr. Satterwhite's bill [H. R. 101] for protection from empyricism, and to elevate the medical profession.
Mr. WOODARD objected to the bill because he desired the largest liberty to employ any physician of his own choosing. It requires practice to make a good doctor. Practice makes a good doctor--better than theory.
Mr. WILLARD had conferred with physicians, and the fault they find with it is that it does not do enough. It is well known that any man to-day can send to various medical colleges and secure a diploma for $10. This bill shuts out those who have studied under a physician but are without a diploma. We want a bill that shall establish a medieal board in each county, before whom physicians shall be able to stand an examination. The diploma system has been proved to be a fraud. I shall oppose this bill, in hopes of finding a better one.
Mr. GIFFORD. The gentleman (Mr. Woodard) thinks it not necessary for a physician to be a professional man. That may be true : but the bill provides that a man qualified by practice shall be admitted to practice. Many good physicians never had a diploma. So far as this bill is concerned, I believe it covers all the ground, and I shall support it.
Mr. BUSKIRK. For my part, I claim it as an inalienable right, if I prefer some old woman to doctor me, if I find that she does me more good than the city physician--if I so decide on my own responsibility, I claim the right to employ her. I believe with Oliver Holmes, that if all the medicine were thrown into the sea, it would be better for men, but death to the fish. [Laughter.] I believe in homoeopathy and hydropathy, and all the pathies, and I shall vote against exclusive privileges in medicine.
Mr. BUTTERWORTH. I think I shall vote against the bill, but I wish to remove the impression that it is in the interests of the allopathic school. It provides that no man shall practice without a diploma or a certificate. It places all the pathies on an equality. The object of the bill is simply to require of every man who pretends to be a doctor that he shall understand what he professes. My objection to the bill is this: It would throw out those mothers-in-Israel who practice obstetrics.
Mr. WALKER would support the bill. It was mild in form--directed against no particular school--but it would label the poisoner, as the law does now the poison. It will reach the scores of empyrics and quacks who are going out everywhere in the State, to whose story the suffering people will listen, pay their last dollar and receive no benefit. The school teacher must have the certificate of qualification, and should we not require of the physician having the care of our health that he also shall give assurance of qualification? If it would be more satisfactory to the gentleman from Gibson [Mr. Buskirk] let the provisions of the bill be so changed as to give him a midwife. I would not divorce him from his inalienable rights. Our county medical societies ramify every county in the State, and if the emulous doctors have not the requisite knowledge of books, let them be remanded to them till they shall be qualified for their responsible work.
page: 166[View Page 166]Mr. RICHARDSON felt very little interest in the bill, but discovered that gentlemen were considering it under a misapprehension. It was not in the interests of physicians, but of the people. Medical men would hear him out in this statement. Their indifference to the bill is because it does not go far enough to secure the required protection. Do gentlemen fear that some old lady, or some particular friend may not be permitted to practice medicine? Why does the gentleman from Gibson claim the right to employ his own physician, so long as the Constitution of the State does not allow him to employ a lawyer who has not a good moral character?
Mr. HATCH. This bill is for the protection of the people. Physicians do not need protection. I support the bill because graduates of every school having certificates of the county medical society, would by its provisions be admitted to practice--giving every medical school credit for sound instruction in anatomy and physiology--the groundwork in the practice of medicine.
Mr. SATTERWHITE introduced this bill, though not of the medical profession. He had consulted a number of physicians as to its provisions, and some had submitted a few suggestions, amounting to nothing It was similar to the law of the State of Ohio, which seems to work well there. It is more in the interests of the people than of the profession, and I think it may be at least a stepping stone to something better.
Mr. MELLETT. I feel very much disposed to protect myself from quacks, but I question whether this bill will do it. The tests which it proposes for a physician are three: First--a diploma from a medical college, which, although not conclusive evidence of a physician's fitness, it is in that direction. Next--a certificate from a medical board. And the third test is the pandora's box that lets out all the evils; it requires that he shall have one of the two certificates mentioned, or he shall have been a practicing physician for ten years. I should prefer that it read one year instead of ten, for the quack of one year is not as bad as the quack of ten years.
The bill failed on the final reading--yeas 40, nays 36--for lack of the constitutional majority.
CHANGE OF VENUE.
Mr. Offutt's bill [H. R. 104] to amend the seventy-eighth section of the criminal practice and procedure act of June 17, 1852 (taking away the discretion of the judge as to the change of venue upon affidavit of prejudice in criminal causes), was taken up in order on the third reading.
Mr. OFFUTT. We have been reminded time and again that all members of this body are not lawyers; and perhaps all do not understand the purpose and object of this proposed change or amendment of the law as it now stands. This bill proposes to place the criminal and civil law on the question of a change of venue on the same footing. The law now provides that changes of venue in civil cases shall be granted by the judge upon proper evidence, setting forth the fact of the existence of undue prejudice or excitement; the criminal law leaves it discretionary with the judge in such cases, to grant or refuse the change. This bill proposes to amend the law so as to make it absoluteso as to take away the discretionary power of the judge, as it is now done in civil cases. I think that in cases where a man's life or liberty is involved, he ought to have a change of venue quite as readily as where his property only is concerned. And as the House has already voted to refuse to go back and give the judge his discretion as to a change of venue in civil cases, it would seem that it ought to be ready to support this bill.
Mr. MILLER considered that much the larger portion of the affidavits for a change of venue in criminal cases, are either founded in perjury or in a misapprension of the parties. It seems to me that it is always possible, in any ordinaay case, to get an unprejudiced jury, and the constitution requires trial by a jury of peers. And when you come to apply the law, as it is here proposed to be amended, you will give to nine-tenths of the criminals the means to prevent a trial. It would become a part of the practice to change the venue. Nearly every criminal wants timetime for witnesses to die or move away; and the result would be the avoidance of trial. Another objection to the bill would be the immense expense which it would devolve upon the officers of the court and the State, in the service of process and the continued application for allowance of witnesses. I think the whole policy of the bill is in the interests of the criminal.
Mr. WILSON of Ripley. I hope this bill will pass. The State has no interest in punishment unless the party is guilty. The Constitution credits the presumption of innocence and grants the right of an impartial trial. It has been remarked that in civil cases, where there is nothing but the question of the right of property, the judge has not the discretion to refuse a page: 167[View Page 167]change of venue, whilst in criminal cases, where life and liberty are in the issue, the discretion is with the judge. I have seen in many cases where the change has not been granted, that it has been because the court itself partook of the local prejudice. We ought to afford and secure to every citizen a fair trial; and we ought not to repose on the judgment of any one man to say whether there is or is not undue or unsafe prejudice or excitement. If we were to proceed upon the ground that every man charged with crime is guilty, I could see the force of the gentleman from Decatur's argument. There has been a bill introduced here [Mr. Lenfesty's] to make the civil practice conform to the criminal in changes of venue; and the Judiciary Committee reported for its indefinite postponement, because they considered that the judge should not have the discretion to refuse. I repeat my observation that whenever this discretion has been used, it has been uniformly against the prisoner; and but for the prejudice of the judge the change of venue would have been granted. The judge is but a man--having the passions and impulses of a man--partaking of the feelings and preposessions of the people, and controled by the same prejudices.
Mr. SHUTT considered that the changes of venue result in the avoidance of justice, and certainly in much expense and vexation without pay. I think the criminal ought to get justice at home. There isdanger of too much sympathy for him.
Mr. COBB also considered the danger of too much sympathy for the criminal. If this recommendation of the Judiciary Committee is right--and I think it is--then had we not better leave the law as it is? because witnesses and others have to attend these trials, by order of court at a great distance, and receive no pay; and I do not question, that in many cases, where these changes of venue would be made, criminals that .would escape by them would be those who are guilty of the most heinous crimes. And if this be so, I think we ought not to increase the facilities for a change of venue. Now we have in various parts of the country parties organizing vigilance committees and lynch law. This of course, is all wrong; but it has its origin in the want of wisdom and vigilance in the law-making power. It seems to me that instead of making it more easy for the crimial to escape, we ought to frame the laws to make it more difficult for him to escape. It seems to me that the presumption of innocence till the prisoner is proved guilty is enough. I believe that experience teaches us that in nine cases out of ten the ends of justice in these cases do not require either continuance or change, and the judges generally recognize this doctrine. It seems to me that this bill ought not to pass--that we have gone far enough in that direction. Reaction may be good; but we should be guarded and careful not to go to far in reactionary measures.
Mr. OFFUTT. I have but a few words to add in support of this measure. Gentlemen have presented what might seem to be very good reasoning; but this is not a question of dollars and cents; it is a question of right and wrong. If it be right that the law should be amended in this respect, the question of the additional expense should not be taken into consideration. It has been said by one gentleman that criminal cases should be tried by a jury of peers, and he urges therefore that the bill should not pass. Now, I understand that by the Constitution of the State the jury is made judge of the law and the testimony. Still there is not a Judge but will lay down the law. But it is said that the criminal will change the venue till he wears out the patience of the Prosecuting Attorney, and till the witnesses either die or remove away, and thus the criminal will escape. But the gentleman has forgotten that the law only tolerates the change of venue, and I undertake to say that the objection raised by the gentleman is not such an objection as should have weight in determining whether this bill is right or wrong. It has been well remarked by the gentleman from Ripley, that where a man's life is involved, his rights should be as well secured as they are in cases where only his property is at stake. [He read from the statute the provisions with reference to the change of venue in the civil and in the criminal practice.] So we see that in civil cases it makes it imperative on the Judge to grant the change on the proper application; but when it comes to cases involving life and liberty then you will trust the Judge, arid give him the discretionalthough the affidavit may be filed in truth, he has it in his power to say to the prisoner: "Sir, you shall be tried before me, whether you are guilty or, innocent" I say it in all candor and seriousness, this law is wrong; and that where a man's life or liberty is at stake, and where undue prejudice or excitement exists, he ought to be tried by impartial triers. My experience is, that where the Judge is impartial he will seldom refuse to grant the change. I think the bill is eminently page: 168[View Page 168]just and in the spirit of the Constitution, I say, sir, be a man guilty or innocent, he is entitled to a fair trial, to be tried by impartial triers, and in a county and by a jury that is not prejudiced or biassed against him. I think the bill ought to commend itself at once to the judgment of the House, and especially to the legal profession.
Mr. WALKER. As to the analogy between civil and criminal cases; ordinarily in civil cases they have no notoriety in the counry--they are not spoken of enough to prejudice men's minds so as to authorize a change of venue. Yet the State makes it imperative, takes the discretion of denial away from the court. Criminal cases, on the contrary, have notoriety; and the law is to provide against the too easy change of the venue in those cases that necessarily have notoriety, and are of such a character as necessarily to divide the minds of the citizens. I will not vote to retard the execution of the criminal laws; I would be in favor of its more rigorous administration. I would be in favor of giving the State the right to close the pleadings--the old principal of law. I would not be understood as voting for liberality in this direction by my vote on this bill; but this is the consideration: a criminal should have as fair a hearing as he can have in a civil case. My observation has been that some of our popular judges sometimes desire the notoriety of trying a celebrated case; but I simply wanted to draw a distinction between the notoriety of civil and criminal cases.
Mr. LENFESTY. I am Interested in the defeat of this bill. It has been urged as one reason why this bill should pass, that as to a change of venue in civil cases the judge has no discretion. I introduced a bill to give him that discretion, and it was reported against. It is well understood that the administration of justice in our criminal practice is very expensive, and if this bill should pass I apprehend that it would increase the expense of the administration of justice three times over. What would be the result? Why, in every case, even where a boy might trespass on a neighbor's grounds, he may go into court, and there, by filing his affidavit--no matter what the pretense--he may take a change of venue to onother county.
Mr. OFFUTT. In cases of misdemeanor the defendant pays the costs. The gentleman's presumption of perjury is unfounded.
Mr. LENFESTY. I think that I am supported in the assertion that whenever the criminal requires a change of venue, he will not hesitate about the oath. The ends of justice are not so often defeated in the home trials. But I can call to mind cases where justice has been defeated by changes of the venue, and they open a door to perjury, and make a large bill of expenses. And hence, also, I believe that the bill I introduced should have been passed. For where property is destroyed by the railroads they pay no attention to the first trial, and appeal the case to some other court. [Cries of "order, order!" The SPEAKER. The gentleman from Grant will proceed.] I propose to show that instead of taking away the discretion of the judge in criminal cases, it should be exercised in civil as well as criminal cases, and I simply call attention to the fact that where stock is killed by the railroad, the farmer is virtually cheated out of his stock by not being able to follow the railroad company in their changes of venue.
The bill was rejected--yeas, 10; nays, 68.
IMPROVEMENT OF THE PUBLIC REVENUES.
Mr. KIMBALL presented a preamble and resolution requesting the Auditor of State to communicate to the House his suggestions for the improvement of the public revenues.
It was adopted.
Mr. WYNN submitted a resolution for an order (which was adopted) that the Secretary of State furnish a price list of the articles of stationery furnished to members of this House.
Mr. BRANHAM, on account of pressing business before the committees, moved for the adjournment.
Mr. WOODARD submitted a resolution (which was adopted) that a committee of five be appointed by the Speaker whose duty it shall be to inquire what legislation, if any, is necessary to protect the people of the State from oppressive taxation by counties and townships; and report by bill or otherwise.
The SPEAKER That committee will consist of the gentleman and others--five members of the Committee on Ways and Means.
Mr. MELLETT presented the petition of 378 citizens of Delaware county protesting against aiding the State Univerity to establish a Medical College, on the ground that it will be sectarian--controlled by one school.
The House then adjourned.
