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DELIVERED BEFORE THE ILLINOIS STATE BAR ASSOCIATION, AT SPRINGFIELD,
JANUARY 14, 1890.
E. CALLAHAN, PRESIDENT.
We are assembled for the purpose of discharging the duties which devolve upon us as officers and members of this Association. The constitution requires of me an address. Before entering upon the discharge of that duty, allow me to return to you my sincere thanks for the honor conferred upon me, in my absence, at your last meeting.
This occasion does not demand of me an argument in favor of civil government among men, or an essay upon those elementary principles of law which form the foundations of the jurisprudence of all civilized nations, whatever the form of their political government. The necessity of civil government is so evident, and has such abundant demonstration in the history of the world, and in the happy condition of the people of the United States, protected by constitutional limitations of power, and secure by law in the enjoyment of all necessary civil and political rights, that whoever questions it, should be taken care of as an incompetent, or punished as a criminal.
The elementary and universal principles of law are the first steps which the lawyer takes in his professional career; they lie at the threshold of his professional life. They are the corner stones upon which he must build, if he builds, either safely or successfully. The books which contain them are the first that he reads as a student. They occupy the field which he first surveys and explores. If these first principles have been neglected by any of us, this is not the time or place to repair the neglect.
Nor am I called upon to delve tediously into the vast mines of ancient and modern literature which exist, and are of unmeasured interest and worth to the student in jurisprudence, for maxims and gems of the law, to be strung and exhibited like the tawdry ornaments of an aboriginal chief. These are paths along which it is presumed that we have passed, before reaching the duties of the present hour,
I wish to discuss, in a practical way, some practical questions which lie within the scope of the objects and purposes of this Association, as set forth in its constitution. This Association ought to be of practical use to the people of the State, in making good laws, and directing wisely the growth of the system of jurisprudence under which the people are to live, and by which the vast and ever-growing interests of this great State are to be controlled, directed, protected and stimulated in its future growth and developement.
The constitution of this Association declares that the objects of its organization are:
First-To cultivate the science of jurisprudence.
Fourth-To elevate the standard of integrity, honor and courtesy in the legal profession.
Fifth-To encourage a thorough and liberal legal educacation.
Sixth-To cherish a spirit of brotherhood among the members of the legal profession.
The science of jurisprudence comprehends a knowledge of all the rules of order, or conduct, established by authority of a community or State, for the control and government of its inhabitants, and their application to the affairs and controversies which arise in the transaction of business, and the conduct of the individual citizen. It embraces all the legal relations whish exist between the citizen and the community or State, and between one citizen and each and every other citizen, whether such relations arise out of, or relate to, the personality of the citizen, or the property rights, or things which the citizens of a community own, use and enjoy, either jointly or severally. It embraces all the political rights, duties, privileges and obligations of the citizen, as they have been established by constitutional provisions, fixed by statute, or defined by judicial construction. These rules of human conduct, of which the science of jurisprudence takes cognizance, permeate the entire body of society, and entwine themselves around the individual citizen in every path he travels, in pursuit of that happiness which all hope sometime and somewhere, to find. These rules are all supposed to originate in reason, and to have some correct principle for a foundation. The science of jurisprudence undertakes to trace them to the fountains of reason, from whence they flow, and to discover the foundations of principle upon which they rest.
The student of this not very exact science has a limitless field for his investigations. The sources of that knowledge which he seeks often lie far away, or deeply concealed. They extend through the entire domain of history, philosophy, political economy and religion; but if he has the spirit of a true lawyer, and is in love with his chosen profession, and takes delight in the philosophy of the law which he seeks to know, the distance or concealment of these fountains of knowledge, and the wide range of his explorations, will only add zest to his search for them. The student who expects any considerable measure of success and satisfaction in this pursuit, will be disappointed in his expectations if he turns aside to drink at fountains of pleasure, or stops to dwell in castles of indolence.
"The world is nothing but a mass of means.
Without an ax or arm." A knowledge of the general principles of the science of jurisprudence should not be confined to such citizens as manage causes in the courts. It should be part of that elementary education which the community or State offers to all of its citizens in the public schools. The Legislature of each State should, by law, require that in every public school there shall be taught an outline of such laws as relate to persons and property,-to public and private rights and wrongs, a knowledge of the organization and jurisdiction of the courts by which the laws are administered. Every college should include the science of jurisprudence in its curriculum. Without this general knowledge of the laws, the citi. zen is not fully prepared to discharge the public duties which he owes to the State, or to understand and maintain his private rights, or to meet the obligations which rest upon him as a member of society. The law conclusively presumes that every citizen has a perfect knowledge of all the laws in force in the jurisdiction in which he resides, and holds him responsible for the same measure of obedience, as if this
knowledge of the law were a fact, and not a presumption of law only. Whatever the State can do towards giving to the people an actual knowledge of the laws, it should do.
It is the duty of the legislature to express the public laws in words that are clear in their meaning: The words of a new statute should be very deliberately and carefully selected. This is hardly possible under the present mode of preparing, amending and passing bills; and it not infrequently happens that the phraseology of a statute is so defective or obscure as to defeat the object of the Legislature. The recommendation of the American Bar Association that each State Legislature appoint a committee of Senators and Representatives, “Who shall together constitute a joint standing committee for the revision of bills before their final passage' commends itself to my judgment, and I recommend it to your favorable consideration. It would most certainly prove à "material check to a growing evil.”
Another object of this association is to promote reform in the law."
The law is never stationary. It is forever growing, and forever wasting. If it were reformed to-day until the beauty of perfection should grace it, it would be imperfect to-morrow. A rule of law useful to-day, would be useless to-morrow; and a rule not required in the present, may be needed to meet the demands of the future. This necessity for change, by elimination and addition, is often productive of unwise and mischievous legislation. Especially is this true when legislation is largely in the hands of men unskilled and inexperienced in the science of jurisprudence. Change is not necessarily reform. A new law should never be made until after a careful consideration of its relations to, and effect upon, existing laws; nor unless it is intended to reach some desirable end that cannot be reached without additional legislation. Nor should a law be repealed until it has been tested in practice, and found to be productive of no adequate public benefit. Too much change—too much hasty and inconsiderate legislation-is one of the most prolific sources of bad laws. Solon bound the Athenians by solemn oath to obey such laws as he should make, for a period of ten years. He gave them a code, and then traveled in foreign countries for ten years. and thereby established a world-wide reputation for wisdom. Modern legislators might learn a lesson from the Athenian law-giver, without following too closely the precedent he established.
The ordinance of 1787, “For the government of the Territory of the United States Northwest of the river Ohio,” provided that judicial proceedings should be according to the course of the common law. The Territorial Legislature ajterwards enacted that the common law of England, so far as the same was applicable and of a general nature, and certain English statutes made to supply the defects of the common law, should be the rule of decision, and should be considered as of full force until repealed by legislative authority. After the admission of Illinois into the Union, the same provision was re-enacted by the State Legislature, and is still in force. At first, all the courts were at sea in regard to what portions of the common law were or were not locally inapplicable. Difficult questions arose, and naturally drifted into the Supreme Court, where the common law was pruned and trimmed and molded by judicial construction. The Legislature immediately commenced a process of patching the common law by statutory enactments, which has continued to the present time. The ground-work of the common law remains, but it has been so often patched, and in so many places, and so much modified by judicial construction, that it takes very careful examination and discrimination to determine which is original, what has been added to, and what eliminated from it.
England, from whence we transplanted the common law, with its technical notions and its courts of law and chancery, administering justice on entirely different principles, has outstripped us in the race of legal reform. It has recast its judicial system, abolishing the distinction between courts of equity and of law, and providing that the administration of justice in all courts shall be regulated by the principles of equity. It is difficult to discover a satisfactory reason why we, in this country, cling to the technical common law actions, and the technical rules attached and belonging to them, which England has, in substance, thrown overboard, and deny justice to suitors with good causes who happen to approach the wrong side of the court. We have attempted to bend the straight lines of these common law actions, and relieve suitors from the bardships which arise out of their technical application, by statutes allowing amendments in matters of substance and form at any time before final judgment.
This is a step forward. It is a concession of the necessity of reform. It is an acknowledgment that these common law actions came to us, surrounded with technicalities that amounted to a denial of justice, when the wrong form of action had been brought, or some technicality overlooked in bringing, or in the progress of the right form of action. It