Page images

The result is that, as in this case, books of account are in most cases inadmissible in favor of the firms by whom they are kept, although honestly and intelligently kept in accordance with the usage of merchants and men of business generally. This would be remedied by changing the present statute, so as to omit all reference to the decease or non-residence of the person making the entries.

(h.) There is a great and unnecessary confusion upon the question of pleading and proving foreign laws. The courts of this State should take judicial notice of the laws of the other states of the Union. Their statute books and reports are reasonably accessible, and if we had this rule, the ridiculous spectacle would not be presented of a lawyer being called as a witness to testify what the law of Wisconsin or Iowa, for example, is as a matter of fact.

Moreover, the states are not as foreign nations to each other. They are sister states in a common union, indissolubly bound together by bonds which can never be riven asunder, and 'this sort of inter-State comity should be cultivated. It would be well worthy the splendid Empire State of the West to take a step in advance in this direction.

(i.) As a question of practice, there is very little to be said in favor of the old rule that in an action on contract against several defendants, a recovery must be against all or none.

A party not guilty of bad faith in joining two or more defendants ex contractu against such of the defendants as the evidence shows to be liable. Those not liable should have a verdict. As it stands now, a plaintiff may, before final judgment, amend by discontinuing as to a joint defendant, but is sometimes liable to fail to get a verdict because of a misjoinder.

(j.) There is, it is thought, practical unanimity among members of the bench and the bar as to the consolidation of the several grand divisions of the State for the transaction of the business of our Supreme Court. It is thought that if this tribunal could hold its sessions at Springfield, and have more time and more favorable opportunities for consultation among its members in the decision of causes, and in preparation of opinions, there would be a great gain in facility for discharging its high and important duties, and that its hold upon the confidence and respect of the people of the State would be measureably increased.

It is now an ambulatory court without even the excuse which the old court of kings bench, sitting in aula regis, had for its perennial migration.

The proper location for this great court, holding the highest judicial power in this great State, is at the seat of government, where the co-ordinate branches of our political system, the executive and legislative, are rightly placed.

In this connection the committee also recommends that the annual salary of the justices of the Supreme Court be increased to seven thousand dollars. This would hardly be adequate compensation for the great responsibilities and arduous labors of this high office. Corporations and moneyed interests generally do not hesitate to pay liberally for the best professional service obtainable. It behooves the people to see that those upon whom they rely for the protection and vindication of their rights receive adequate compensation.

(k.) The institution of trial by jury, a theme of endless controversy in and out of the profession, is again suggested for consideration, by the assaults which are made upon it from all quarters. It is only quite recently that the president of a railroad, testifying before a legislative committee in an eastern States, gravely recommended its entire abolishment in railroad cases. It is said that a member of the bench in Chicago. recently upon a public occasion, stated that it was a question whether the proper way to reform this institution would not be to eliminate it wholly from our system of jurisprudence. This sentiment from a judge worthy a place in any court, certainly demands some attention.

An extract from one of our great metropolitan papers serves to illustrate the feelings which are entertained by a large, influential and intelligent class in the community:

"That the people of this country are generally dissatisfied with the jury system is certain. It is the subject for ridicule, not only by humorists, but by grave judges. The verdict of a jury is ordinarily a surprise to all who listen to the proceedings of a civil or criminal trial, and on that account many persons who delight in the improbable and unexpected frequent court rooms, Still while sporting men will bet on the turn of a card, the throw of a dice, the flight of a pigeon, the arrival of a steam ship, the issue of a base-ball match, or the speed of a race-horse they have never seen run, and whese record they are ignorant of, they never wager money on the chances of a jury returning a certain verdict. The rules that apply to chance or the ratio of probabilities do not, in the opinion of sporting men, apply to the action of jurors.

Why an institution that has outlived its susefulness, that is a relic of barbarism, and the only one existing in highly civilized countries, is preserved, is to many people a mystery. It may be accounted for on the supposition that it is a sort of fetich which intelligent people despise and have a contempt for, and of course declare they have no belief in, but are, after all, afraid of dispensing with. An American historian states that the people of Greece and Rome preserved all their old temples intact, and appeared to venerate all the statues to deities they contained, long after they had lost all faith in mythology. They did not believe in the gods of their fathers, but they were in mortal fear of displeasing them. A missionary in Africa declares the converts to christianity preserve all their old idols with great care. They renounce their faith in them, and remove them from the rooms that are likely to be visited by missionaries, but they preserve them in some secret place, and ordinarily visit them every day.

There may be another reason why the old jury system continues unchanged, although distinguished jurists no longer favor it. It serves to encourage litigation, to protract trials, to cause many cases to be tried several times, and to give cause for frequent appeals to higher courts. Lawyers, sheriffs and bailiffs are benefitted by all these delays and appeals, and they have much influence in shaping legislation.

Accordingly, legislation is proposed which shall make the privilege of jury trial burdensome, by providing that all cases shall be tried by the Court unless a jury is demanded by either party, in which case the party calling for a jury shall pay all or part of the expenses thereof. This committee cannot concur in these views. This great institution should be preserved in all its integrity, and should be jealously guarded by the friends of liberty and republican institutions alike against the open assault of avowed enemies, and the covert attack of those who indirectly seek its destruction under the guise of friendly solicitude for its conformity to enlightened public opinion.

No truer nor mcre fitting eulogy can be pronounced upon it than that found in the language of Mr. Justice Paine, of the Supreme Court of Wisconsin, employed in an argument in that Court against the constitutionality of the fugitive slave law, made while he was at the bar: “As the ark of the covenant containing the testimonies of God was borne by the twelve chosen by the twelve tribes of Israel from the wilderness onward to the land of promise, and as the waters divided before it and all the people to pass through dry-shod, so has the trial by jury, the ark of the covenant containing the testimonies of liberty, been borne by the twelve onward from remote ages of barbarism to the present advanced state of civilization, and so during all that toilsome march the waves of tyranny have divided before it and allowed the people to pass through unscathed."

This splendid institution has been heretofore hampered in this State by legislation in two respects. The maxim ad questiones facti non respondent judices; ad questiones legis non respondent juratores, has been ignored, and juries in criminal cases are said to be by law judges of the law and facts. It seems too plain for argument that this is unnecessary. When, in England. judges were creatures of the crown, and held the law to suit the Sovereign, there was reason for that rule; here, where they are servants of the people, by them chosen with special reference to their learning and knowledge in the law, no possible excuse can be found for it, and it should be changed at onceCessante ratione legis cessat, et ipsa lex.

The common law right of a judge to announce the law and comment fairly upon the evidence has been taken away. He can only charge the jury in writing, and that upon the law. The statutory provisions requiring instructions to be in writing, and restricting the charge to the law of the case, should be repealed, thus leaving the matter as at common law. No friend of trial by jury can listen to the manner in which an able and upright judge in those jurisdictions in which it is permitted, sums up a case orally to a jury and submits to them the exact points at issue for them to decide, without feeling that this is that system of trial which has, in all times and under all circumstances, called forth the just panegyric of the great jurists and publicists who have alike adorned and developed the common law.

Before we condemn trial by jury, let us have it for a while under favorable conditions, as to aid and guidance from the Court in charging upon law and facts, and see how it operates. One of the strongest arguments in favor of it is that under such unfavorable conditions it has worked so weli and accomplished such good results. There is a common law right inherent in a Court to submit to a jury particular questions material to the issue, and thus to require a special verdict. It is suggested that it might be desirable in some cases to give a party the right to require the Court to exercise this discretion, and submit a vertain limited number of questions.

The present method of drawing a jury is generally believed to be satisfactory. It is, however, thought that in some localities it has not been found entirely adequate to secure a fair representation of the average character and intelligence of the community. It is understood that some attempt will be made to secure legislation on this subject this winter, and that a carefully prepared bill is already in the hands of those who have given the matter much attention. The subject is certainly worthy of the most earnest consideration.

(1.) The procedure in condemnation suits is such as to admit of great injustice to property owners in some cases. It is settled that the compensation for property taken under the power of eminent domain must be fixed by the valuation of the property at the date of the filing of the petition.

Dupuis v. C. & Vorth Wis. R’y Co., 115 III., 97. And that until compensation is actually paid the petitioner is at liberty to abandon the proceedings and decline to take the property.

Schreiber et al. v. C. & E. R. R. Co., 115 III. 340. The filing of a petition virtually creates a lien on the land. By it the owner and petitioner are brought into the relation of vendor and vendee, the price being thereafter to be ascertained, and if not satisfactory to the petitioner, the trade may be abandoned. If, after a petition has been long pending, thus preventing the improvement or sale of the property, the petitioner abandons proceedings because the verdiet finding compensation is unsatisfactory, it is obvious that the owner may sustain serious loss.

The law should be so amended as to provide that after verdiet the petitioner should not be permitted to abandon proceedings, except by leave of Court and upon cause shown, and also that the owner shall have a right in the same proceeding to suggest such damages as he has sustained by the bringing of the petition, and have them assessed by a jury, and have judgment therefor, as in an ordinary action at law.

(m.) The committee recommend that the second section of our statute, as to insolvent debtors, be so amended as to permit the party arrested to be discharged according to the provisions of law, even where malice is the gist of the action. If a man ought to be punished for fraud or malice, let the State manage the prosecution. It should not be entrusted to individuals, nor made a means of collecting debts.

The committee regret that Judge Wall felt it impossible, in the pressure of official duty, to act with them. They are, therefore, deprived of the benefit of his valuable aid and counsel.


Committee. On motion, the reports were received and ordered printed in the proceedings of the Association.

The Secretary also received through Mr. Dent, Chairman of the Committee on Law Reform, the following report of Mr. Gregory, of said committee. The report was received after the business meeting of the Association had adjourned, but for the information of the Association the Secretary publishes it in the proceedings: To the President of the State Bar Association :

Turning from questions substantially of procedure which have been treated by the report of the committee, some consideration may be given to topics in the main of wider interest. There is what can hardly be termed other than an abuse in connection with public office so universal and of such long standing that it may seem idle to attack it here. That is, the system by which rail way companies distribute to legislators, executive officers, judges and others passes entitling them to free transportation over their lines.

This is prohibited by the constitutions of Alabama, Arkansas, California, Missouri and Pennsylvania. It is difficult to rest this custom upon defensible grounds -such favors are generally continued while the beneficiaries are in office, ceasing when the office expires. The motive of the donors would seem to be the establishment of friendly relations with the donees; what is expected in return? Obviously something; it can be nothing else than some official action.

It is much to be hoped that such expectation is not realized. In many cases it undoubtedly fails. At the same time, the practice is indefensible, and no argument is needed to show that it should be abolished. A pass is a valuable gratuity, and its bestowal upon a public officer by corporations who are vitally interested in his official action can hardly be discriminated in principle from the giving of a sum of money, or any other thing of value.

The abrogation by law of this practice would tend very materially to increase the confidence of the people in the honesty and fidelity of their public servants in their official dealings with corporations, and would be a salutary recognition of a healthy and growing public sentiment.

It might be desirable, in any legislation upon this subject, to provide that members of the legislature, judges, sheriffs and State officers voted for directly by the people should be carried free, while upon official business, going and returning by railway and other transportation companies within this State.

There is considerable interest now manifested in the question as to how far codification of the law is desirable,

In England it has gone to a considerable extent, and the same is true in all the States in a less degree.

The subject is worthy of very serious consideration. While the difficulties of embodying the law in the form of statutory enactment are great, still the experience of older communities seems to be in favor of very considerable change in this direction.

The writer, however, is not prepared to recommend any general scheme of codification, and is disposed also to the opinion that, so far as our system of pleading and practice is concerned, a change to a code like that of England or New York is not yet desirable.

Upon a most important subject, however, this State at an early day undertook to codify the law. The result was very far from satisfactory; and to-day the law of negotiable paper in Illinois is anamalous and utterly at variance with that splendid system founded upon the usages of trade and commerce, developed and applied by Mansfield Buller, our own Kent and Parsons, and other great jurists, and known to the world as the Law Merchant. At the time our statutes upon this subject were enacted and first construed, Illinois was purely an agricultural State; at the present time, it is a great commercial and trading community as well, and contains within its borders the third, if indeed it be not more justly the second, great commercial center in the country. Our mercantile and commercial relations are widely extended, and intimate with almost all sections of the country, and indeed our trade extends around the world.

It is highly desirable, therefore, that our system of commercial law should be as nearly like that of the rest of the country as possible. Senator Daniel, of Virginia, op the title page of his admirable work“ upon negotiable instruments, quotes the opposite language of the great Roman lawyer and orator:

"Non erit alia lex Romae, alia Athenis alia nunc, alia posthac, sed et apud omnus gentes et omni tempore, una, eademque lex obtinebit.

"There shall not be one law for Rome, another for Athens, one now, another hereafter, but both among all nations and in all time, one and the same law shall obtain.”

This is most highly desirable in this country, where in these days of rapid transit and easy conimunication, all sections are so intimately and constantly connected in business.

And in the opinion of the writer, the chapter on negotiable instruments should be so modified, as to leave the law merchant in force, as to demand for payment, protest, notice of dishonor, negotiability and liability of indorsers and other parties to commercial paper.

The great question of how to secure equal taxation, is always present with us, and always pressing for solution. A gifted judge in a neighboring State has thus spoken of the subject:

“The small property owners who constitute the great mass of the people, usually pay their taxes without question, and seldom combine for the purpose of procuring any special privileges or exemptions. But capital, always keen-eyed and vigilant, always equally ready to grasp at the profit and shrink from the burden, often able to bring to bear powerful and dangerous combinations of influence upon legislative bodies, will be sure to take advantage of such a construction of the constitution, and to shift upon others the burden which itself ought to bear. True, such injustice may be borne for one year, or even many years, without fully developing its fatal effects, —but as the coral insects, though working almost imperceptibly, do, in process of time, erect islands and continents in the seas, so by an opposite process, unjust taxation, with a slow and steady destruction, eventually wastes the victims on wbom it is inflicted."

Kneeland v. Milwaukee, 15 Wis.. 454. It is believed that in this State, the largest proportion of taxation is paid by the small property owners, and that heavy interests, and particularly large corporations escape with very light contribution to public burdens. A radical reform is necessary in this respect; under proper limitations, so as to avoid double taxation, our revenue system should include

An income tax,
A succession or legacy tax,

A tax upon the gross receipts of railway, express, telegraph, transportation and street car companies, and perhaps some others.

The first two measures of raising revenue were resorted to by the general government during the war.

A progressive income tax, while it possesses some features which perhaps incline the American people against it, is believed to be defensible upon the best and most scientific principles of taxation. It finds place in the economic system of England and some of the best governed countries in the world, and is generally favored by the most enlightened and intelligent publicists of the age.

A graduated succession tax, very small upon small estates and proportionately large upon larger accumulations, is believed at once to be one of the fairest and most practicable modes of taxation known to political science. It could always be readily ascertained and eosily and inexpensively collected, being made a charge upon the property of a deceased person to be collected through the agency of the probate and county ccurts where such property is administered.

It would generally fall lightly upon the persons interested, as it would only slightly affect their distributive share in the estate. And where when the deceased left a great fortune it became more onerous, it would still be a limitation upon the acquisition of considerable wealth instead of a heavy burden upon property already enjoyed. Nor could it like a stamp-act or other method of taxing transfers of property be open to the objection of restricting or hampering commercial activity; for it is appointed unto all men once to die," and the administration of their property follows as a necessary incident.

If it should be held obnoxious to our existing constitution, then there should be no objection to amendment so as to permit this method of taxation.

« PreviousContinue »