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proper pleadings and on compliance with such terras as may be im posed by the court, and any depositions which may have been taken of witnesses outside of the county, may be read in evidence by either party, and all other depositions in the discretion of the court, but either party may have the right to have the witnesses brought into court and examined orally, to the exclusion of the depositions, that question to be determined before the trial is begun. The order changing the suit shall be conclusive evidence of its identity.
JAMES H. CARTWRIGHT,
MR. WILLIAMS: It is proper to state, Mr. President, that the majority of the committee were not present when this report was made out. Our President was not present, nor have we received any suggestions from him. But we thought we would present these suggestions.
PRESIDENT HARKER: What will you do with the report?
MR. HAMILTON: I move that the report be received and adopted.
MR. SCOTT: It occurs to me that it might be wise to postpone action on this report until after Judge Blodgett's address. The report is one of consequence. It seems to me that there ought to be some time for discussion, especially upon the first part of the report, which makes the decision of the Appellate Court final in all cases. This, it seems to me, is worthy of some consideration. Members ought to be given an opportunity to think about it.
PRESIDENT HARKER: The discussion might occur in conjunction with the discussion which is to be led by Judge Payne, and if there is no dissenting voice it will be postponed until then.
MR. HAMILTON: If there is no objection, I will change my motion and move that the report be received and placed on file.
The motion was carried.
PRESIDENT HARKER: The next number on the program is the address which was to have been heard last night, but
which was deferred until this morning, on "The Early Bar of Chicago," by Judge Blodgett, late of the Federal bench.
[The address will be found in Part II.]
MR. PAYNE: Mr. President, may I move that the thanks of the Association be voted to Judge Blodgett, and that, in addition to the usual vote of thanks, he be made an honorary member of this body.
The motion was carried.
MR. GROSS: I listened with more than ordinary delight to the paper that has just been read. It has been a part of my life study to familiarize myself with the history of the state of Illinois, with its jurisprudence and with its ministers of justice, judicial and otherwise; and while I sat listening to this paper, in which the lives, the character, the peculiarities of these distinguished men of the decade referred to were discussed, I was reminded of one of the traditions that once lingered about the room of the Supreme Court of the State of Illinois here in Springfield. It came to me many years ago
0-so long ago that I am unable to remember from whom I received it, and yet the reference by the essayist to that distinguished lawyer of the Illinois bar, Justin Butterfield, recalled it to my mind. It rests in tradition, or reached me through that channel, and I speak of it simply in that way. I had no personal acquaintance with any of the persons referred to. The scene
was in the court room at Rockford. Among the other members of the bar in attendance were Mr. Goodrich and Mr. Butterfield. An exciting argument was being made before the court. Mr. Goodrich was upon his feet. He had become animated, he had become earnest, and something in his remarks gave offense to the presiding Judge, Judge Young, and the Judge said to him: “Sit down, Mr. Goodrich! Sit down, sir!" Mr. Goodrich disregarded the admonition, and went with
increased vehemence. Finally, Judge Young, who had already fined him ten dollars, said: “Sit down, Mr. Goodrich! If you don't sit down I will re-fine you!” Butterfield turned to Goodrich and said: “Go on, Goodrich, go on; such a thing as refinement never entered his Honor's head.” [Laughter].
PRESIDENT HARKER: The next number on the program is the discussion of the President's annual address, opened by John Barton Payne.
MR. PAYNE: Mr. President, the discussion of this topic, I think, aptly brings before the Association the pertinent inquiry as to why we are an Association. The objects of the Association, admirably expressed in its Constitution, have been fulfilled only in a theoretical way. It has not been successful in impressing itself upon the laws of this State. If the many admirable amendments and suggestions which we have adopted from year to year had been passed by the legislature and become laws, there would, indeed, be much cause for congratulation. The great need of the present hour is expedition in the administration of public justice--the determining of controversies in a speedy and proper manner.
I know less about the law as administered throughout the State at large than about the law as administered in Chicago. There we have a practical denial of justice. Many men think this is to be charged to our procedure. I think, in part, this is true. In a great part it is to be charged to the individuals who now occupy the bench in Chicago. There is an impression prevailing that there is a marked_distinction between the powers of a judge sitting upon the Federal bench and a judge sitting upon a State bench; that upon the Federal bench the judges are clothed with the power and dignity which have come down to us from common law; that upon the State bench the judges are moderators selected at popular elections because of their capacity for getting votes, and they are expected to administer their courts very much as the president of a town meeting administers the affairs of the town. Now, that is theoretical, in a sense; but it is distressingly practical as applied to every-day life. There might be some amendments which would be helpful, but greater help could come if the judges themselves realized their responsibilities and were willing to assume those responsibilities. It is true, notwithstanding the discussion of yesterday, that very much may be done by legislation to help expedite business.
I was deeply impressed with the address of our President, but, I confess, more impressed with his recital of our wrongs than with his suggestions of remedies. He pictured the exact. facts which confront us to-day; the tedious and protracted life
of a law suit; the pitfalls which are spread for the unsuspecting suitor; the many ways by which he fails at the end of a protracted litigation and is compelled to retrace all of his steps. I was impressed with that part of Judge Blodgett's address in which he dwelt upon the capacity of those distinguished men in tripping up their adversaries, thereby gaining applause from their professional brethren; but at the conclusion of his masterly address, he dwelt with pleasure upon the fact that these men became the disciples of justice and stood for the administration of law. I was impressed with the fact that in the youth and ardor and vigor of a professional life we strive for temporary success; to defeat the adversary, without regard to whether the law is administered successfully, or whether we simply gain this temporary advantage; but when a man's professional career is ripe-when it becomes an open book to which men may look for guidance, his heart then is directed to justice and the successful administration of law. But that, gentlemen, is true only when we have sufficient courage to look the situation squarely in the face and cast aside the incumbrances that fetter us. The common law reminds me of a magnificent man. It stands for life, for vigor, for adaptation to changing conditions, for such growth that it meets every emergency without friction, without fettering, without difficulty; while the procedure of the common law is like the garment which clothes the man. We have adapted the principles of the common law to our changed conditions; but we insist that this magnificent man, full six feet, shall wear the garment which clothed him when he was only four feet tall. I say the garment should give way so that his limbs may be free to perform such functions as may be meet and necessary.
The difficulty is, among others, that we are unduly conservative. We have as much veneration for the procedure of the common law as the Egyptian has for the mummy which has rested under the pyramids for six thousand years. To lay our ruthless hand upon any proposition involved in the procedure of the common law is sacrilege. Men do not dare affront this marvelous institution. And yet it has been so changed by amendment that the glorious system of special pleading, which has been discussed here, is but a thing of memory.
We have no system of pleading, gentlemen. The statutes allowing amendments are so liberal, except upon the question of changing from law to equity, or vice versa, that you may amend any
kind of action so as to make it any other kind of action. You may amend any paper at almost any stage of any case. So that when you talk about a system of pleading you talk about a thing which is non-existent. Special pleading was once a science which pleased men's intelligence, because great controversies were determined on the pleadings of a case. This was unfortunate, but it was true. It is not true now. We stand confronted by an alleged system, which is simply the bark stripped from the tree by amendment, and which must be carried along forever as an incumbrance, fettering the fair and just administration of the law.
One amendment suggested by the President relates to technical reversals. He proposes that where an appellate court may see upon the examination of the whole record that substantial justice had been done, there shall not be a reversal because of any technical error. Is there any gentleman who dissents from that proposition ? Certainly not, I think.
Appeals from the probate or county court to the circuit court, with two trials before juries—in other words, a trial de novo in the circuit court—are useless. Nobody would controvert that.
I wish I had the time to discuss the subject of jury selections in criminal cases. In Cook County, no man who has sufficient influence to see the County Commissioners can be brought to trial for any crime on earth. Did you apprehend the force of that statement? It is literally true. Under our system, no man can be brought to trial unless he is indicted. There is no such thing as information. The prosecuting officers of the county or State cannot place a man on trial. He must be indicted by the grand jury; and such is the sanctity attached to an indictment that after it has been prepared by the State's Attorney and signed by the foreman of the grand jury, it cannot be amended, altered or changed. How perfectly absurd! What is there about a grand jury which renders its work like the Bible was a hundred years ago? We may even change the Bible by revision; but you cannot revise an indictment. Will any gentleman insist that the recommendation of the President should not be followed in that behalf? Why should not an indictment be changed? We all know that the grand jury has nothing to do with its preparation. They simply find that John Jones has probably committed some