Page images









Gentlemen of the Illinois State Bar Association:

Since its last Annual Meeting this Association has been called upon to mourn the departure of some of its most eminent members, including my immediate predecessors in office, David Davis and Benjamin S. Edwards. The distinguished magistrate and the accomplished lawyer represented all that is best in the practice of the profession and the discharge of judicial functions. Both had attained the ripeness which is the consummation of careers of honor and usefulness, and blameless lives, we may well believe, had given both, before the inevitable going hence, repose in that upper chamber, whose windows look toward the sunrise, and whose name is Peace.

The distinction between practice and knowledge, between rules and doctrines, between art' and science, is sufficiently obvious. Art throws itself into the form of rules, but every rule is to be found in the theorems of science. Up to Hallam's time law had been studied, to use his words, in general with more solicitude to know its rules and definitions, than to perceive their application to that for which all rules of law ought to be studied, the maintenance of public and private rights, and hence was considered an art rather than a science. This must be so as to its practice, which is nothing but the application of the rules deduced from the fundamental propositions of the science.

The Justinian definition of jurisprudence, was the knowledge of what is just and what is unjust; that is to say, the science of justice-the science of that right reason, conformable to nature, constituting the universal law which, as Cicero wrote, neither people nor government can give us any ispensation from obeying; which is “not one thing at Rome and another at Athens, one thing to-day and another to-morrow, but in all times and nations this universal law must forever reign eternal and imperishable." Not only so, but therefore so, jurisprudence may be said to be the science of positive lawe.

The strictly analytical or logical treatment of law as a science results in resting it in the abstract upon force, and force alone. But socially and politically viewed, the force of law depends on its coinciding with the moral judgment of society, and its conformity to a just public opinion. That accomplished essayist, Frederic Harrison, defines law to be a general rule respecting the property, person, reputation or capacity of the citizens of a State, which the sovereign power therein will cause to be observed by the authority it delegates to its tribunals, or will enforce in its tribunals; and his conclusion is that the arrangement of the corpus juris of any system ought to depend in many things on practical convenience, which is, after all, the source of law, and cannot be exactly distributed by logical analysis of an abstract kind.

De Tocqueville insisted that the attempt to make laws logically complete involved an absurdity, and Schlegal, in his Philosophy of History, oljects that the civil law was too severely just, and did not make allowance enough.

Sir Henry Maine, seeking a wider basis for jurisprudence than the purely analytic method allowed, may be said to be the chief exponent of the historical method which discloses the relations and true end of legal rules, introducing the element of progress, and a constant development, without disturbing that fixity and uniformity, that solidarity, so to speak, which is essential to a system of law as a working whole.

Civilization began with the imposition of a settled customary yoke upon all men and all actions, which nature, in its perpetual tendency to change, prevents from impeding all progress, until to-day all free governments, founded as they are upon discussion, are “able to gain the benefit of custom without the evil” can “have order and choice together," and the ordinary springs of progress are left to their elastic action. And in this way our law has worked itself free from those anomalies which formerly seemed so monstrous to men trained in the civil law.

In a country of popular institutions, with every case of note reported in the newspapers, with an intelligent and cultivated audience, and with a judiciary absolutely above reproach, the dominion of justice and reason can be extended and the domain of brutal force and arbitrary will contracted, without being compelled to resort to hard and fast legislative definitions; but, in an absolute government, it may well be claimed, that progress is to be secured rather through direct legislation than evolution.

The statutes, decrees and juristical writings which contained the law of the Roman Empire when Justinian came to the throne, were numerous, scarce and disputed, and complete collections existed neither in public libraries nor in the hands of individuals. No judge and no practioner could be sure he possessed all the authorities, and there were many points on which opinions of equal validity dif fered. It was, therefore, that through governmental interposition, the Code and the Digest were compiled to give the statute and the judicial decision, and the institutes, the elementary hand book. "It is the first care of a reformer,” says Gibbon, in his celebrated 44th chapter, "to prevent any further reformation," and so the emperor denounced the punishment of forgery against those who presumed to pervert or interpret the will of their sovereign, but he could not bind the native freedom of the mind or the action of coming generations, and therefore commentary upon commentary, gloss upon gloss, change upon change, followed the attempt to lay down an unvarying legal rule.

The condition of India prior to the adoption of its code was, in many respects, similar to that of the Eastern Roman empire. Macaulay tells us there was no fixed law under which the Hindoo people lived; that texts could be produced on any side of any question; that expositors, equal in authority, perpetually contradicted each other; that obsolete laws were constantly confounded with the laws actually in force, and that the decisions of the tribunals were altogether arbitrary. Since, therefore, England exercised over this vast dependency the powers of an enlightened, but nevertheless despotic government, the necessity arose for a certain detinition of what the law was, and in that respect the action of the British Parliament might be said to have conferred a blessing, “a blessing which absolute governments are better fitted to confer upon a nation than a popular government."

In 1789 France had so many systems of jurisprudence,.that Voltaire said the traveler had to change laws about as often as he changed horses. The written and the customary law conflicted, and what was in force and what was obsolete was in dispute, and all these systems had not only to be made harmonious, but brought into consonance with the principles of the great revolution and with the policy of the empire. This was effected by the code Napoleon, but it is stated by Monsieur Portalis, in the preliminary discourse to that great work, that “no matter how perfect a code may be, it is no sooner finished than a thousand questions present themselves.”

It is in reference to this code that Sir Walter Scott, in his life of Napoleon, commends the law of England as preferable, “because each principle of English law has been the subject of illustration for many ages by the most learned and wise judges, acting upon pleadings conducted by the most acute and ingenious men in each successive age. This current of legal judgment has been floating for centuries, deciding as they occurred, every question of doubt which could arise from the application of general principles to particular circumstances; and each particular case, so decided, fills up some point which was previously disputable, and becoming a rule for similar questions tends, to that extent, to diminish the debatable

« PreviousContinue »