He was a well-known

and shot the man through the heart. man. Ned Allers was indicted and we moved the case to Baltimore County. The question came up about putting Ned on the stand. He had a perfectly good defense. Shall we put him on the stand and let him testify or not? But how could we do that? We did not want him to testify to anything but the truth. He said he had shot the man, and he was bound to swear to the same thing if he got on the stand and testified. He admitted that he killed the man. In the melee and confusion, just after dark, there was not a human being we could get who could corroborate his statement. There was no one except his assailants who knew how the thing happened. No one else saw it. If he had testified in his own behalf he would confess to having killed the man without having any corroboration for his defense,- of his justification for doing sɔ. Would you as lawyers, under those circumstances, have advised him to take the witness stand? We did not dare to do it. They had a host of people to swear to anything. As Charlie Goodman used to express it men who "swear the legs off an iron pot' and we could not let him take the stand against a host of bitter enemies, and have him admit killing the fellow and not have anybody who had any knowledge of the facts to state it was done in self-defense. So, of course, we exercised our Constitutional privilege and he refused to testify. According to the theory of my friend Judge Soper then, the jury ought to be justified in inferring if he did not state his defense he did not have any defense. That would not have been a just inference. It would not have been a true inference. It would have been contrary to the facts. When we went to trial everybody had a different story to tell as to the direction in which the shot was fired and all that sort of thing. As Mr. Cross said to the jury that was not the first time in history that the witnesses agreed not one with another." I said, If he did shoot the fellow it didn't make any great difference, somebody had to shoot these fellows down there. Being good old countrymen the jury acquitted Allers and I tossed my hat to the Court House roof when they said "not guilty."

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There is no need to apologize for this rule. I believe it is a sound principle. At any rate, what I plead for is this: Do not change anything which has been recognized as one of the safeguards of liberty in our Constitution, State and National, until you have made a thorough study of its history and the reason why it is in there. Our good reformers are going about

pointing out defects in the law,-how this institution or that, or this feature of the law works injustice, obstructs the Courts,― enables the criminal to escape, and so on, but do not accept any conclusion they may reach, no matter how wise it may see, until you trace the thing they want to change back to its source. I tell you the men who put those things in our Constitution did more thinking on questions of government, and had more knowledge of their history than the men of our present generation have or ever will have until they turn their attention to its study. I do not believe in the idea that no changes should be made. I am not prepared to say there should not be some modification even of that rule. Possibly so, possible it must be done but do not change it until you make the man who wants to change it pass an examination on the question of whether he knows the history of how it got there and what evil it was it was put there to redress. The men that framed the instrument 100 years ago, had much more time to think about these things and study them the men who sat before the old wood fire long hours instead of going to the movies, and read and studied and thought on these things. Being a country boy myself I may be prejudiced, but I really believe it is necessary to go back to the old habit. I never knew how hard it was to acquire knowledge in the bustling life of the city until I came to Hopkins University and in the history class some reference was made to Gibbons' Decline and Fall of the Roman Empire, from which work I had made some quotation. I was asked, you do not mean to say you have read it through, eight volumes, 500 pages each? Of course I have read it. How did you ever find time to read it, I was asked. "Bless your soul," I replied, "I lived in a county in Southern Maryland where we didn't have anything but time.'

I believe we have got to get back to our old methods on this question and study these things in the old way. I am speaking in no spirit of criticism. I think it of vital importance we should keep our thoughts fixed on these institutions discover their defects and see if they need change, and if so, then we can make the change. All human institutions are liable to require changes, but do not make them in a hurry. The great curse of the day is hasty legislation. The bitterest jibe ever flung by one public man at another was that uttered by Benjamin Disraeli, when he referred to his great rival as "a statesman in a hurry." God save us from government by statesmen in a hurry.

I am very much obliged to you for permitting me to relieve my mind of these sentiments.

THE PRESIDENT: I am sure tonight has demonstrated that at least five Baltimore lawyers are equal to one New York lawyer, and that any loss which may have been sustained from the absence of any New York lawyer has been more than made up by the substituted program.

Tomorrow we shall have a most interesting program. Mr. Sherman F. Whipple, of the Boston Bar, who is with us tonight, will discuss tomorrow morning, "The Legal Privilege of Concealing the Truth." We shall also have a great deal of important business to transact before adjournment and I trust that we shall assemble promptly at 10 o'clock tomorrow morning.

Upon motion duly made and seconded the meeting adjourned until Saturday morning, July 1, 1922, at 10 o'clock A. M.

MORNING SESSION

Pursuant to adjournment the Maryland State Bar Association re-assembled at 10 o'clock Saturday, July 21, 1922, the President, in the Chair.

THE PRESIDENT: If there are any proposals for membership they will be received at this time.

MR. TYSON: I have an application for membership from John Thomas Scheu and I want to move that Mr. Scheu be elected a member of the Association.

The motion was duly seconded and after vote Mr. John Thomas Scheu was declared a duly elected member of the Maryland State Bar Association.

THE PRESIDENT: Someone has stated that Boston is a state of mind. However that may be there are many Bostonians who are very much more than a state of mind and who manifest energy and determination and directing force which excites the admiration of those who observe their operation.

We have looked to New England for its contributions to patriotism, statesmanship, literature and learning and despite its many present defects, we still turn to its granite hills and bracing atmosphere for stimulation, inspiration and consummation. Many of the old leaders have been succeeded by worthy successors. We have with us this morning one of the leaders of the Boston Bar, an original and forcible thinker

of broad views and undaunted courage. It gives me great pleasure to present Mr. Sherman L. Whipple, of the Boston Bar, who has selected as his subject, "The Legal Privilege of Concealing the Truth," a subject with which, of course, lawyers are totally unfamiliar.

MR. WHIPPLE: Mr. President, ladies and gentlemen of the Bar of Maryland: Before I enter upon the prepared remarks on the theme I have chosen, I want to express to you, Mr. President, my high appreciation of the distinctive honor of this invitation and of your lauditory suggestions, in regard to New England and the city where I live; and my gratitude at being permitted to join with you here and add to my acquaintance the distinguished members of the Bar of a sister State.

I deem it a real privilege to have listened to the discussion here last evening, especially as it touched upon a certain feature of the remarks which I had prepared to make today. I admit that I am more in line with Judge Soper's sentiments as expressed last night, but I could not but have some sympathy for Mr. Marbury's appealing statements of what came under his personal observation. He said he was afraid to put his client, although innocent, on the stand. He did not look to be that kind of man. He looked as if he had the courage to do it. But of course I should defer to his judgment. Probably he was right about it, and knew his jury, but I cannot believe that the reason that innocent man was found not guilty was because he sat back in silence when he should have spoken. I think that with a frank and open statement by the accused, eye to eye with the jury, under the direction of such a man as Mr. Marbury, as to just how that thing happened, the result would have been the same, because that result, after all, was probably due to the belief of that jury, in view of the charming personality of Mr. Marbury himself, that with such an honest, upright and upstanding attorney really personally vouching for his client, the accused could not possibly have been guilty.

The theme which I have selected has been announced as "The Legal Privilege of Concealing the Truth." If I had prepared my remarks before I had selected the subject I might have selected a different subject, but very likely what I have to say, somewhat hurriedly, in the short time I shall take, will assembly itself about that title as well as about any other.

THE LEGAL PRIVILEGE OF CONCEALING

THE TRUTH

Address by SHERMAN L. WHIPPLE

The proposition that under the law there exists a right or privilege on the part of anyone to withhold or suppress evidence of material facts in the trial of causes, is one which, in its general statement, is likely to cause surprise, and even doubt. Such a proposition seems to be inconsistent with every axiom or principle that underlies the administration of justice. For how can justice be done, we exclaim, except the judgments of the court rest upon truth, and truth alone? How otherwise can such judgments be righteous? Why is every witness called upon solemnly to swear that he will tell "the truth, the whole truth, and nothing but the truth," if, indeed, it be a fact that, after all, the law permits him merely to tell a part of the truth, and justifies him in withholding the rest of it? How can it be said that the trial of a cause is but "the search for truth,' when in some respects, at least, the search must be a vain one?

I apprehend that no one of us would undertake to challenge the correctness of the principle which underlies these queries. We all agree, I am sure, that our courts can deliver righteous judgments only if they know the truth, the whole truth, and nothing but the truth. But the fact remains that without our system of administering justice as it now exists, there are things which the law places above the ascertainment of truth — things which it is said justify the concealment or the withholding of the truth, in a measurable degree, at least, in the trial of causes.

To be accurate, then, must we not modify what we have considered as axiomatic principles, so they will read somewhat in this way? Justice generally, indeed, rests upon truth; but in some cases, and to some extent, justice must rest on something else. Must we not say, it is, indeed, true that the trial of a cause is "a search for the truth," but it is equally true that there are certain places to which the search must next be extended and which the law denies the searcher the right to penetrate. Not that the truth is not there, not that the truth is not accessible and ascertainable, but the right to know it is denied, because under the law as it now stands, certain things are held more highly than the disclosure of truth.

It is my purpose, with your permission, to refer to and briefly discuss some of these concealments which the law now