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MR. BRADWELL: I would suggest that there is no member of this Association who has a greater love for the regular, old common law than our friend, Judge Moulton, and I would like to hear from him on this common law question.
MR. MOULTON: Mr. President, I hope you will excuse me from entering into any detailed discussion of the subject of the “Unwisdom of the Common Law.” I, of course, appreciate the remark of my friend, Judge Bradwell, about my love of the common law. I was bred and brought up in the common law. It has been a lever of power to me and my clients, and I must say that, so far as my observation has gone, the best common law pleader has always been regarded as the best lawyer. Now, I was delighted with the manner in which the subject was presented by the distinguished gentleman, and I so remarked to Judge Bradwell. I do not desire to criticise the paper. I know that innovations have been made in the common law, and very likely others ought to be. But I think I must say that so far at least as my observation extends, I would not give the old common law system, as laid down by Chitty and Stephen for all the systems of codes in the whole world. I stand upon it; and I think if you will take the neighboring states around us—take Kentucky, Indiana and some of the other statesyou will find that the difference between their code systems and the system of the common law, as we understand it, or ought to understand it, is the difference between darkness and sunlight. Now, I do not care about entering into a discussion of the questions that have been raised, or the particular instances that have been given. It perhaps would be of no particular interest to discuss the special objections that have been made to the common law. As I said before, there are many objections, but take the system as a whole, and as an old man and as an old practitioner, I stand upon it.
MR. BRADWELL: I am reminded that when the Lord Chief Justice of England was in Chicago, and our present Chief Justice of the Supreme Court of the United States was appointed to make the welcome address at the Grand Pacific, he assured His Lordship that in Illinois the common law existed purer than in any other State of the Union and spoke of it in terms of eulogy. When the Lord Chief Justice came to reply he said: “Although I come from the home of the
common law, we have been trying for over fifty years to get rid of it, and we have very nearly done it.” [Laughter.]
MR. MATHENY: The remarks of Judge Bradwell remind me of another utterance of Lord Chief Justice Coleridge in the same connection; I do not know whether it was on the same or some different occasion. His attention had been called to the fact that in Illinois the common law system of pleading had been preserved in much of its ancient purity. He referred to this fact, and then spoke of the pleasure which it afforded him to know that the government of the United States had set apart a large tract of land in the mountains of the west-the Yellowstone Park-for the preservation of the buffalo and the grizzly bear and other features of the wild life of the west; and he supposed that the State of Illinois had been set apart to preserve the barbarities of the common law system of pleading. (Laughter.]
MR. SHERMAN: Which was a very good joke, as was also the remark of the late Mr. Storrs on a similar occasion. Mr. Storrs gave a banquet at the Leland house in honor of Lord Chief Justice Coleridge. Unfortunately, just before the banquet was to be served, a deputy sheriff appeared and served an execution upon the banquet as the supposed property of the said Storrs; whereupon, instead of being discomfited, Mr. Storrs merely remarked that it was a d-d shame to levy on the Lord's supper. [Laughter.] At the recent meeting of the American Bar Association, the learned President of that Association, Mr. Carter, of New York, one of the most learned and distinguished lawyers in practice at the American bar, took occasion to refer to court practice and procedure in New York, in not the most complimentary terms. He stated that after the adoption of the original code the courts immediately began to consider what the code meant; that they proceeded to consider volume after volume of practice reports. The lawyers of the State, not having found out what the code meant, proceeded to revise it; whereupon the courts proceeded to ascertain what was meant by the revised code. After a few years were spent in that direction a second revision was made, and a third attempt to ascertain the meaning was entered upon by the courts. In the course of this investigation to ascertain the meaning of the code, Mr. Carter said over one hundred volumes of practice decisions alone had been issued. “And
yet," said Mr. Carter, "our bar are as far to-day as ever from knowing what the code means."
It may be, and I hope it has been demonstrated, that the English system is superior to the system which has been adopted in New York and other States of the Union. As I understand the English practice, under an act of Parliament the judges have practically formulated a code. Now, the difficulties of substituting a code prepared by a legislature for the practice under the common law are very great. A legislature usually does not possess the wisdom to improve very much on the old forms of procedure. A legislature, however, is gifted with sufficient egotism not to permit the most learned men in the State to formulate a code without many changes to impair its usefulness. If we could have in the State of Illinois half a dozen of our most eminent jurists sit down to consider the question of improvements in practice and procedure; if they could have all the time they needed; if they could have an excellent salary so that they could afford to disregard their ordinary occupations, they might formulate something worthy of the State, and something which, no doubt, would be very much more valuable than any other code that has been promulgated, unless it be the English code. There seems to be no present hope of any such result in any such way, and I join with my friend here in saying that from my limited experience and observation, I should not wish to change the common law practice of Illinois, modified as it is by judicious amendment and liberalized as it has been, for any system of code practice of which I now have any knowledge. [Applause.]
MR. LACY: I listened to the paper read by Mr. Courtney with a great deal of interest. The criticisms he makes upon many of the imperfections of the common law will, I think, be generally endorsed. But the common law, as I understand it, embraces not only pleadings, but every kind of law in the country, almost, except what is called statutory law. The common law grew up and was made by the judges. It had its beginning away beyond the dark ages, and it grew with the decisions of the judges. As a case would come up, a judge would decide it as he thought was right on principles of justice and equity. A record would be made of it, and then some other case would come up and would be decided
on similar grounds. And so in the course of time the common law grew up as necessity appeared to require and became a kind of system, and the pleadings and procedure of the courts became a kind of system. The common law did not have any well-defined boundaries; nobody could see exactly what it was. Maybe in the course of several hundred years there would come a decision that the common law was so and so, overruling a large number of past decisions; and then the idea was that this last decision had always been the law, and consequently that the other decisions were wrong. Now, some of these decisions that our friend Courtney has spoken of may be overturned-may be shown never to have been the law. The law is a growth. There is no human wisdom that is capable of formulating a code upon any subject without having applied it to practice to see how it will work. They can never see the thousands and hundreds of thousands of circumstances that must come up.
We must have the common law in the nature of things. It must be modified from time to time.
From about the time of the birth of Christ, or a little before, I suppose the common law of England began to come up in a weak
way; and we have some very remarkable and acute reasonings and technicalities and devices that those old judges made use of in their time that look ridiculous to us now. But that was an age of subtleties. Consequently there were imperfections, but they have been wiped out to a great extent. Still some of them have been handed down to us. We have adopted the common law of England down to the fourth year of James the First, I believe. Consequently we have gone a good ways back. England has improved a great deal since then. But I think the foundations, the main under-lying principles, of the common law are wise, and adapted to a civilized state of soci. ety. In England they have kings, they have lords, they have a nobility, they have a privileged class. We have none of these things. There the oldest son must inherit all the property so as to have one rich family. That was contrary to our ideas, and it was abolished in our country. Thomas Jefferson had that system abolished in Virginia, and I believe he requested that that fact be put upon his tombstone as one of the three things he did that were great.
Mr. Courtney has spoken of the seal. Of course that is not applicable to our society. It might have been necessary
in England when those people could not write. They could have a seal and a coat of arms, and they could put the seal on a piece of paper and it could not be counterfeited. We do not need that, and it ought to be abolished, except as to conveyances of real estate.
Now, as to pleadings. The great foundations of pleadings rest upon the common law; and it seems to me that the common law system is a very simple mode of pleading. It is logic itself. The law is the major premise, the facts are the minor premise, as you might say, and the conclusion is what must result. The law is so and so; the facts are so and so; the pleader simply sets out the facts; the court then says he may recover, or that he may not recover. He has stated on paper what his case is, and it is as simple as can be. Now, most of the States have undertaken to improve upon that by making a code already fitted out, without any reference to experience. But it takes ages to establish a system, and many things in the code were found to work an injustice, and it took a long time and innumerable decisions of the courts to lick it into shape and make it approach anywhere nearly the system of the common law. Of course there was a good deal of verbiage in Chitty's forms; they contained long, involved sentences; but they were all right when a person understood them. But it is not necessary now to have such a round-about way of stating things. They can be stated more plainly and more easily. Chitty's pleading is not in force much in this country. Our lawyers have modified it, but on common law lines. The common law is elastic; it is susceptible of improvement. There is never a wrong without a remedy, under the common law. As I understand it, the English have modified the common law pleading. They have what is called the Hilary term pleading; simply common law pleading stated in a brief form. Common law pleading allowed only one defense. If a party had two or three defenses to an action, he had to choose which one of those he would rely upon. It was found that that worked an injustice. Our statute modified that a good many years ago, and allowed us to plead as many defenses as we had. The Hilary system is a part of the common law. The English constitution is a part of the Common Law. They have abolished the High Court of Chancery; that is now simply a branch of the High Court of the King's Bench,