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absolutely at sea for the next hundred years. You could not hope to get a set of provisions passed that could be compared, for a moment, to the present system. Now, we had better be content with what we have. We had better be content to improve it, as it has been improved, from time to time, to meet the exigencies of the hour, the wants of the people, the current needs of the country. Let us not tear down what we have unless we can replace the structure with something that is better. Take the State of New York. The code of New York was prepared by probably the most eminent lawyer in America of his time-Mr. David Dudley Field. It has had, you may say, a precarious existence, and to-day the State of New York is absolutely in a state of revolution over that subjeet absolutely in a state of revolution. The legal periodicals and the profession generally of the State of New York are at this time more agitated over that question than they were when the first code of procedure prepared by Mr. Field was adopted. They are in a state of absolute uncertainty. I do not know of anybody in Illinois who would be willing to come forward and take the place of Mr. Field, and perform the part that was performed by him, in the preparation of the code of that State.
Now, so far as I know, the codes of the other States in force at this time are in the main copies of the code of New York. May of them are imperfect. The code is advocated in the main—there may be those who have grown up under it and admire it—but it is advocated in the main, I believe, by members of the profession who have grown up under our system and who have no knowledge of the provisions of those codes. It is advocated, too, by a class of people who want to get at the practice of the law just by a dose book; they want to have the law administered just as a doctor administers his nostrums-by a dose book. Why, you cannot do that. If you want to get at it by the short cut, you may just as well let a man file a precipe and take out an execution at once. [Laughter]. That would be the short cut.
MR. PAYNE: Why not dispense with the precipe? (Laughter].
MR. WHEELER: Well, you might do that. It is not the fault of the law, but the fault of the administration of the law and of the lawyers themselves. There is the trouble
about it, and I take a great deal of the blame on myself, and I think that lawyers in general ought to bear a large share of the burden. The trouble is not in the law; it is not in the system of pleading it; it is not in the unwisdom of the common law, but in the lawyers themselves and the way the law is administered.
MR. PAYNE: I would just like to inquire, where is the straw man? What are we talking about? Who has advocated a code? I wish the gentleman would stand up.
MR. GROSS: He is not here.
MR. WHEELER: The attack was made, if you will allow me, on the common law system of pleading.
MR. PAYNE: This discussion is to to me as amusing as anything could possibly be. I have been sitting here absolutely shaking my sides. My poor Brother Courtney over there--I wonder what he has been thinking about while this discussion has been going on? Every proposition that he discussed, except as he meant to be, and very successfully so, witty, was directed against the excrescences of the common law. He did not advocate a code. If there is anything on earth that sets a company of Illinois lawyers by the ears, and for the time being absolutely dethrones tħeir reason, it is an attack upon the supposed common law.
What is the common law ? Is it the bull of the Pope? [ Laughter ). Is it some concrete thing that you can take in your hand and say, “This is the common law ?" We have been discussing the question here as if the common law was something you might pick up and put into your satchel and carry away. The common law is a system of principles, so elaborate and so elastic as to apply to the advancing conditions of civilization. It is not even the English common law; it is the heritage of the Anglo-Saxon race.
I confess, because I have been born and bred to it, that I have the same affection for the common law that we have for an ancestor who has been distinguished in our family. But I believe in the essence of the common law, not in the theoretical common law; I believe in the practical of the common law, not in something which is called common law simply be
cause it is old. Now,if it is possible to strip this question right down to the belt, as my Brother Scott says, we don't differ about it. What we all want, but what we are all afraid to declare for, is a system of common sense, as applied to the administration of justice. That is all we want. (A member, “ That's it.") Nobody wants a code here. Nobody cares about a code here. But in so far as our so-called system is a mockery and a farce, I say strip it from our statute books and give us common sense. Talk about a system of common law pleading! Why, Mr. Moulton, if Joseph Chitty were to arise from his grave this moment and look upon the pleading that is in force in this state, he would fall dead! (Laughter.] It is as devoid of system, Mr. President, as anything can be. You may file a blank paper and call it, on its back, a declaration, and then you may occupy your own time and that of your adversary for two years, in Chicago, before you get an issue formed. I believe in being what we profess to be. Take the common counts; can anybody say anything unkind about the common counts? What information do they disclose? What fact is required to be alleged? Take the general issue; what may you not prove under the general issue? My Brother Wheeler says he is with us on that. Now, I will reserve what I have to say on this subject for another occasion. I simply wanted to punch this bag. What we stand for in this Association is the righteous enforcement of common sense. We are too old as an Association, we are too old as a profession to talk about the common law; when it is as meaningless in this sort of a discussion as something foreign to the question entirely, because nobody is attacking the common law as it is understood by the fathers of the law. But its excrescences—those things which have become useless by reason of our advancement-we discard as we discard our old garments; but the living, vital principles of the common law march on brighter than ever. Now, I stand for such amendments to our present practice act as will do away with the things that are idle and useless. A man should be able to state his
of action without verbiage. Brother Sherman here makes an apt point with a story which Judge Blodgett tells. In Vermont, where the common law system is in vogue, a man filed a declaration in trover. He alleged that he was John Jones; that another man, naming him, had borrowed his sled; and that he had smashed it all to hell, to the great damage of the plaintiff to the amount of $100; and he got his verdict and his money. [Laughter).
MR. WILLIAMS: What is your judgment as to the practicability of so adapting our practice that if a man unwisely gets into chancery he can change to the other side of the court? How do you think that can be done?
MR. PAYNE: I think as the practice now is it cannot be done. It will have to be done by statute. I think it can be done with perfect practicability. In the first place, it is largely a system of book-keeping as it is. We have two dockets and all their accompanying paraphernalia. Even though we continue that, we shall simply have to transfer the case from one docket to the other.
MR. GROSS: I was very strongly impressed before my Brother Payne got upon his feet, with the paper of Mr. Courtney. I listened to it with delight. It was sharp, it was pointed, it was caustic, it was eloquent. I enjoyed it exceedingly. But while he was reading I asked myself, what is there of this left in the common law as we have it here in Illinois? He has undoubtedly given us a correct historical picture of the common law, as it existed at one time; but we, as an Association, and as a profession, are interested in the common law as it is to-day. We have the common law to-day as it was in England in the fourth year of King James the First (1607) so far as it is applicable to our condition and our system of government-the common law and the acts of Parliament in aid thereof. It has been and still is the law of the realm here, except as it has been modified by statute. The essayist treated of the matter of seals, and he gave us the common law view of the seal to instruments. He failed to state, however, that at a very early period in the history of this State (I think it was in 1819) the legislature of this State passed an act providing that conveyances of real estate should be evidenced by the signature of the grantor and his seal. I believe as long as we have been a State that has been our statute law. That being so, what becomes of the illustration which he gives us of the decision in 63 Illinois, where the court held that an instrument purporting to be a conveyance of real estate failed to convey title because it was not in conformity with that statute? What is there in that? He refers to the state of the married woman under the common law; but that is not her condition in Illinois. Nobody pretends that it is; the essayist does not. The married woman
has been emancipated; she has been placed upon a plane of equality with her husband in respect of almost every conceivable right.
Take the rule in Shelley's case; that is one of those things which have come down to us and remained with us. Its history we all know; but why it is here and why it has not been abolished long ago, I have never heard any good reason expressed. Our Supreme Court has said that it has so long been a rule of decision in England and in this country that it has become a rule of property. It has existed so long, and has been so universally applied, that the court holds that it has become a rule of property. But it is no
more sacred than any other of the many rules that have been modified by statute, and there is no reason why it should not be changed, and as my Brother Wheeler has remarked, this Association is already on record in favor of abolishing it. This Association is also on record on the subject of seals. The matter has been the subject of consideration. Now, I grant you there is no longer any good reason, nor has there been for many years, why a distinction should be taken between a sealed and an unsealed instrument. I am not speaking of conveyances. The reason of the rule long since ceased to exist, and as a matter of common law interpretation the rule ought to cease when the reason for it ceases. But the courts have maintained it, and it will take an act of the legislature to set it aside. Now, what else is there to talk about? The essayist did not advocate a code. But my friend Payne is right. Let once the ghost of a code arise in an assembly of Illinois lawyers, and these dark faces are all about you at once. Now, I do not understand yet that we have in the State of Illinois any considerable number of our profession who are in favor of a code such as they have in the code states. On the other hand, I do understand that there are many of us in this State who would be very glad to see reasonable modifications made in our practice and procedure; not by the court, but by the legislature.
Much has been said of verbiage in pleading. Tell me where there is a decision of the Supreme Court of this State holding that you must follow Chitty in all its verbiage. I will point you to a hundred decisions in which it is declared that if you are the plaintiff you must state your cause of