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It is expected that legislation will be sought this winter in the interest of greater security for titles in Cook county. By a carefully prepared bill it is sought to be provided that a party claiming title to land may, upon making a showing as to title and payment of taxes, ex parte, before a master in chancery be permitted to file a declaration or claim of title and have it recorded, which shall be unassailable, if not questioned, for three years. The great advantage of this over proceedings under the Bnrnt Records Act, so-called, is said to lie in its simplicity and economy of procedure. Every effort is made in the proposed bill to guard against abuses under it. If danger of spurious titles being thus unassailably assured has been successfully guarded against, then certainly all that can be urged against this measure by its enemies is that it would be brutum fulmen, ineffectual to reach the end aimed at, which is to simplify and facilitate examinations of title and transfers of land, and to strengthen titles. Those who are interested in this subject might desire to look at somewhat similar statutes in England-0.
25 & 26 Vict. Chap. 67;
38 & 39 Vict. Chap. 87; and also a very interesting paper on Land Transfer Reform, read by Henry Barker at the annual provincial meeting of the Incorporated Law Society, recently held in York, England, 81 London, L. T. 410.
The subject is of great practical importance in Chicago, and merits very careful consideration.
The writer has not been impressed with the great urgency for reform of the Criminal Code except as heretofore indicated in the report of the committee in discussing other topics.
It is thought that the abolishment of contract labor in the penitentiaries is a step in the right direction. In devising some plan for the employment of convicts in the future, it would seem to be highly desirable that the prisoners should support themselves, and that, if possible, such of them as have families should be permitted to contribute to their support. It would also be an excellent idea to provide for and encourage a system of saving and accumulating by prisoners, so that when discharged they should have something to rely upon until such time as they could find employment. The humane tendency of modern civilization is to develop the reformatory aspect of prison life. And it is believed that the interests of society lie in this direction rather than in the development of the idea that imprisonment is a means by which public wrongs should be avenged. The deprivation of liberty is a great punishment. And as the conscience and intelligence of the prisoner are quickened, the severity of this punishment is more keenly felt.
The writer is of opinion that all criminal proceedings before a justice of the peace or police justice, sitting either to hear and determine or as an examining magistrate, ought to be instituted by summons or warrant, at the option of the prosecuting witness; and where no warrant is issued, and the defendant is held, the issue of a mittimus to be within the magistrate's discretion.
And that, upon indictment, a capias should issue for the offender at the discretion of the State's Attorney. There is altogether too much punishment before conviction, particularly of the poor and unfortunate who are unable to give bail.
In any proper case let an arrest be made; but unless the alleged criminal is likely to run away, let us not imprison him until he is found guilty. If, by any chance, a mistake is made and a guilty man runs away, perhaps it might be a fortunate thing for the society which thus banishes him.
At the last meeting of the Association, the Committee on Law Reform recommended an amendment to our statutes which should limit the capacity to take by descent or will more than some fixed amount from any one decedent.
This was referred back to that committee for further consideration. If the necessity for legislation which the proposed amendment suggests has arisen, the writer is of opinion that it could perhaps be better met by the provision of the Code Napoleon than in almost any other way.
Sec. 1, Chap. 3, paragraph 913, is as follows:
"Liberalities either by acts of gift, or by will, cannot exceed moiety of the property of the disposer, if he leaves at his decease but one legitimate child; a whird, if he leaves two children; a fourth, if he leaves three or a greater number.”
However, the writer does not desire to invade the province of this committee, and merely throws this out as a suggestion.
A resolution offered by Judge Bradwell, instructing this committee to prepare and report some plan to avoid the law's delay, and to secure a more speedy administration of justice in this State, was also adopted, and has been somewhat discussed in the report of the committee.
Those delays are now often grievous in particular cases, but, on the whole, are believed to be less generally so than in the past.
The writer feels his inability to devise any plan by which they can be wholly avoided Such amendments as have been suggested in practice and procedure are believed to be in the line of this resolution.
It will be remembered that at the last meeting of the American Bar Association, the special Committee on the “Delay and Uncertainty in Judicial Administration” reported the following recommendations:
1–Summary judgment should be allowed upon a negotiable instrument or other obligation to pay a definite sum of money at a definite time, unless an order of a judge be obtained upon positive affidavit and reasonable notice to the opposite party, allowing a defendant on terms to interpose a defense.
2-In an ordinary law suit, the methods of procedure should be simple and direct, without a single unnecessary distinction or detail; and whatever can be done out of Court, such as the statement of claim and defense, should be in writing, and delivered between the parties or their attorneys without waiting for the sitting of a judge.
3–Trials before courts, whether with or without juries, should be shortened by stricter discipline, closer adherence to the precise issue, less irrelevant and redundant testimony, fewer debates and no personal altercation.
4-Trials before referees should be limited in duration by order made at the time of appointment.
5–The record of a trial in every Court in which official stenographers are in attendance, should contain shorthand notes of all oral testimony, which notes, if the Court shall so order, shall be written out in longhand and filed with the clerk; but only such parts should be copied and sent to an Appellate Court as are relevant to the point to be discussed on the appeal, and if more be sent, the party sending it should be compelled to pay into Court a sum fixed by the Appellate Court by way of penalty.
6-A motion for or against a provisional remedy should be decided within a fixed number of days, and if not so decided, the remedy should fail. In all other cases a decision within a fixed period should be required of every judge and every court except a court of last resort.
7- The ordering of new trials should be restricted to cases where it is apparent that injustice has been done.
8—Whenever a court of first instance adjourns for a term leaving unfinished business, the executive should be not only authorized, but required, to commission one or more persons, or as many as may be necessary, to act as judges for the time being and finish the business, Such temporary judges should be commissioned in all courts except the court of last resort.
9—The time allowed for appealing should be much shortened, one month, or at most, two, should seem to be enough in all cases.
10-Greater attention should be paid to the selection of judges, without which no other reform, however good in itself, can succeed.
11- The statistics of litigation in the courts of the United States and of each state, should be collected and published yearly, that the people may know what business has been done and what is waiting to be done.
It will be noted that much in these recommendations has no application to the condition of matters in this State. Trials before referees are happily rare; provisional remedies by that name are unknown, and so far as they exist are generally obtained and relieved from with reasonable despatch, and time for appeal seems to be short enough.
It is thought, however, that the third and tenth recommendations which refer to the conduct of litigation and to the selection of judges call for the most serious consideration. It is undoubtedly true that in the administration of our laws is to be found much that occasions the evils under consideration, and that a higher standard of professional duty in those who minister in the temples of justice would tend
greatly to diminish them. But let us of the bar not confine ourselves to exhortation to the bench. A lawyer in his zeal for his client is temped to exert himself to the utmost for his success, and to lose sight of his high duties as an officer of the court. As such it is indeed his duty to use every legitimate means to make his client's cause appear the better, and thus a court or jury hearing both sides of a case fully appreciates and understands it better in all its bearings, and more surely reaches a right result. But a very important responsibility is cast upon the lawyer before a case comes to a hearing. Many cases are commenced which ought never to have been brought; more are defended to which there is no just defense.
Let the lawyer thoroughly investigate a case, lay aside his client's prejudices, his own disposition to share in them, and diligently strive to reach a fair judgment before trial, and if possible before suit. Having reached deliberate conviction, let him state it to his client and enforce it vigorously. In this way many cases would be adjusted out of Court that now consume much time and involve the community and all concerned in great and useless expense. Let the bench meet the bar in the same spirit. Let us not have endless discussion of “nice questions of law”- 50 nice as to be beyond the comprehension of the average practitioner, and substantially wholly aside from the merits of a case. Let us not have long opinions about nothing in the courts of first instance. Let us all remember that we are not like the philosophers of ancieat Greece discussing the abstract in the groves and temples, but that we are administering a practical science to the everyday affairs of life.
Let judges and lawyers strive to reach and to decide real questions in real casesgo right at the merits and consider them. There is enough in this way to engage the attention of both bench and bar without recondite investigation as to whether a placita is necessary where a record is offered, or whether a declaration on a judgment of a justice of the peace has adequately averred his jurisdiction of the person of the defendant, or whether a judgment in debt is erroneous because the debt is not duly found and the damages not properly assessed, or whether a plea concludes properly with a verification, or to the contrary. These are some of the great questions with which in times past we have struggled desperately, as a reference to our reports will show.
And the language of a distinguished judge of the highest capacity and attainments, in overruling a long line
of decisions made by our Supreme Conrt upon one of these points, has application to all such judicial and professional triflings:
"Justice between the parties is the great desideratum, and it is for this Courts are organized. In reflecting upon prior adjudications of this Court on this subject, we are compelled to believe justice has never more than once been sacrificed to mere form, etc."
Breeze, J., in Borden v. Bowden, 75 Ill. 111. It is thought that we are progressing in the right direction in this State, and that in the cultivation of a high standard of professional duty and intelligence among our bar will be found the most effectual remedy for these imperfections in the administration of the law to which Judge Bradwell's timely resolution refers.
The condition of the docket of the Supreme Court of the United States is unfortunate. Some adequate measure of relief should be promptly adopted, and an intermediate Appellate Court which has done so much for our judicial system would seem to be the most suitable agency for accomplishing the desired reform.
What has here been written has been by way of suggestion and to invite discussion, rather than with the expectation or desire of committing the Association to any views or directly attempting to induce legislation.
S. S. GREGORY,
Of the Committee on Law Reform, Mr. Swett offered the following resolution:
Resolved, that it is the sense of this Association, that the jury system as applied to civil cases, should be abolished.
Mr. Bonney raises a point of order, that the resolution is out of order.
The President so held.
On motion of Mr. Bonney, the report of the Committee on Law Reform be taken up, and voted on by sections.
Second division of the report, under bead “A,” passed, as also “b," "c,” “d”, division III; “a,” “c,” “d,” “e,” under division V; “f,” under division V, lost; “g,” “h,” “i,” “j,” “k,” “1," under division V, adopted; "m," under division V, was amended so as "to limit the time of imprisonment to two years," and adopted.
On motion of Mr. Hurd, the Secretary was instructed to print the recommendations of the Committee on Law Reform, for distribution among the members of the Legislature.
The Committee on Law Reform submitted the following special report on the recommendations of Mr. Bonney, which was received and ordered printed in the proceedings of the Association, but discussion on the same was postponed to the next Annual Meeting: To the Illinois State Bar Association:
The committee would report back, with a recommendation that the same be printed in the proceedings of the Association, the papers which were offered by Mr. Bonney, on the 11th inst., and referred to that committee, the same being:
1. A bill for "An act to establish a Law Reform Commission," which bill is followed by "points" in support of same.
2. A bill for "An act to establish a State Board of Labor and Capital," which bill is also followed by "points" in support of the same.
While commending the spirit in which these measures are proposed, and desiring that the Association be allowed to pass upon the merits of the measures with the benefit of the terse but clear statements of the author appended to each bill, the committee are not prepared to recommend action thereon at this time.
I. As to the power of said bills, that relating to the proposed Commission on Law Reform, the committee can readily see that such a commission might do a much more effectual work than has thus far been done by the reports which our statutes require to be made by the judges of courts of record; yet it does not seem to the committee that, unless the Association should desire to initiate a movement for a code, the appointment of a commission would be specially satisfactory or desirable. In the first place the field would be a broad one, and the best work could probably be done by division of the labor. For example: We have recently had a Revenue Commission; and the task devolved upon that body was sufficiently formidable. So it might be well at times to take up some general subject, presenting a necessity for inquiries as to facts, figures and matters of fact which cannot otherwise be so readily procured by the State officers or the General Assembly. But again, as matters now are, many associations and individuals voluntarily interest themselves in the study of particular subjects on which legislation is desirable; and the presentation of materials on which the General Assembly can act, is very full and regular. The election laws in cities of a certain population have thus been changed. Plans for the selection of jurors; the quieting of land titles; the charging against municipalities of losses by riots, etc., and many other measures of great value are thus, from time to time, brought before the General Assembly. Indeed, our people are active, vigilant and capable in such matters; and the committee think it well to commend them, and to leave these matters in their charge, with the suggestion that the standard of qualifications for Senators and Representatives by whom laws are to be enacted should not be allowed to fall.
The committee would acknowledge that the laws could frequently be improved by amendment, as experience has demonstrated; and yet it is the view of the committee that "amendment" rather than “reform," is the word to use.
As to the same subject, the committee would call attention to the fact that in an early period in our State, there was a Council of Revision, the work done by which gave but a moderate degree of satisfaction. While undoubtedly more would be done by the proposed commission, it is suggested that the active, inquiring, practical and efficient character of our people will lead them to consider the laws carefully, and to suggest all amendments that experience will find to be desirable,
II. The committee would suggest, in regard to the bill providing for a State Board of Labor and Capital, that this subject is pretty fully covered in the principal report this day submitted by the committee, in which report attention is drawn to legislation in Great Britain, and in the State of New York.
The proposed bill conveys by implication an idea which the committee think ought not to be maintained with reference to the relations between capital and labor. In truth, it seems to the committee there is hardly room for a clear division between capital and labor. They go along side by side; and those who are serving others under contracts to labor, are frequently themselves capitalists. In short, there is not a war between capital and labor; but capital is the handmaid of labor.
The bill would leave it to the commission to control contracts for labor, to regulate prices, etc.
It would be said in regard to the proposition, that it would be fair for both parties. or presumably so, and in this respect would differ from the Statute of Laborers in England. which is now discarded as having been wrong in theory, and consequently bad in practice. But the committee hold to the view that these matters are too complicated to be dealt with by a commission, or come too nearly home to the vital business interests of employers and employes, respectively, to be left to the management of a commission.
The price of labor is fixed by various and diverse agencies and causes, among which the employment of machinery, the coming in of laborers from abroad, the disposition to seek office or indoor work rather than the learning of a trade, etc., might be enumerated.
The office of the State should not be too far paternal in matters of this sort, except to protect the young, and give all an even chance.
The amount of wages earned by a man is often of less materiality to him than is the disposition to be prudent, saving and temperate.
Mr. J. B. Bradwell, Historian, made the following report:
To the President and Members of the Illinois State Bar Association:
Under the Constitution and By-laws of the Association, it is made the duty of the Historian, to provide for preservation, among the archives of the Association, suitable written or printed memorials of the lives and characters of the deceased members of the Bar of the State, and make report thereof to each Annual Meeting of the Association.
In pursuance of this duty, enjoined upon him by the organic law. your Historian respectfully reports for the year commencing January 13, 1886.