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crime, indicating what that crime is, and they direct the prosecuting officer of the county to prepare an indictment. The foreman knows nothing about the form of the indictment. That is left entirely to the officer of the State. The foreman signs it on the back as a true bill; he does not even sign the body of the indictment. Now, if the crime is not changed by amendment, why should not verbiage be changed?
Why should not an "s" be added or an “i" dotted? What is there about an indictment that makes it so sacred that it cannot be changed? I do not now propose to discuss the question; but as applied to great cities like Chicago, the grand jury appears to me to have outgrown its usefulness and ought to be absolutely abolished.
Whether that be true or not, its selection ought not to be left to the county board, where the selection may be made and is made month after month with direct reference to some crime which is alleged to have been committed. I will not name instances, but the Chicago gentlemen who hear my voice will all think of cases in which the grand jury was notoriously selected with reference to some crime alleged to have been committed. If there is rascality in the county board, as there has been on more than one occasion, the only hope is that a special grand jury may be called. That has been tried successfully on more than one occasion, so that a county board in part have been sent to State's prison. But that cannot be brought about unless there is such an extraordinary crystalization of public sentiment as drives men to do justice. The ordinary crimes from which society suffers — those which are not sufficiently powerful, either in volume or character, to stir up the great heart of the people-go on forever. I am decidedly of the opinion that the recommendation that indictments should be amended should be concurred in.
The selection of petit juries for the trial of great criminal cases I had supposed, until the decision of the Supreme Court in the Cronin case, had been by statute so circumscribed as to make it possible to get a jury even if the jurors had read the newspapers. I think the decision in the Cronin
was a very great mistake on the part of the Supreme Court, without any sort of reference to the case itself. The statute, I think, is liberal, and the court ought to leave it to the trial judge to pass upon the competency of a man in
a jury box who, in apparent good faith, says that he can give the defendant a fair and impartial trial. There is nobody on earth so well qualified to say whether that is true or not as the presiding judge, who sees the man, knows the circumstances surrounding him, and who certainly can form an intelligent opinion as to whether the man is acting in good faith or not. I think the statute has been strained in that case. Such further legislation as may be necessary ought to be had in that regard, so that we may have a jury of fair intelligence, independent and impartial.
As to the question of unanimous verdicts, Judge Harker suggests that a two-thirds or three-fourths majority be permitted, after a certain length of time has elapsed, to agree upon a verdict which shall have the same effect as if it were unanimous. Some three or four years ago, we had an exceedingly learned paper on that subject before this Association by Mr. Žeisler, of Chicago, and after the reading of that paper I was convinced that we ought not to permit the bribery of a single juror to defeat the administration of justice. Certainly if nine men concur, there is a reasonable presumption that they are right. How far you may go in providing that a certain number of hours shall elapse before a verdict of less than twelve shall be the verdict of the jury is important in view of the difficulties which may arise; the technical errors which might arise in determining when the time has arrived when the rule requiring unanimity may be departed from. I do not know whether there is such eloquence on the part of the bar of this State as would make it dangerous to permit nine men, when the jury first go to their room, to agree upon a verdict. The idea of the President, as expressed in his address is, immediately after the argument of counsel the jury might not be in such a frame of mind as to enable them to render a proper verdict. We have not such eloquence in Chicago, and I am inclined to think that unless the country is far superior to Chicago in that regard, we may at once say that the verdict of nine men shall be the verdict of the jury.
The last proposition is--and it is the same as that recommended by the Committee on Law Reform this morning—that appeals from the Appellate to the Supreme Court shall not in any case involve a question of fact; that only questions of law, such as might be certified now from the Appellate Court (as I think the law was intended to be), may go to the Supreme
Court. In other words, it is proposed that the Supreme Court shall not even consider the record, but shall simply consider such matters of law as may be certified in abstract propositions. I am not prepared to discuss that question. The Appellate Court in Chicago is so overworked that I think we do not get the best view of the Appellate Court there; not the same view as we do in the three other districts of the State. I think it is an unkind criticism to say that the work of our Appellate Court is not generally satisfactory. That court must dispose of something like 750 or 800 cases a year. I say must, for it is true; and they pound away and grind out opinions, some of them in the charmingly facetious manner of Judge Gary. Well, I think I will not discuss that question further.
The only proposition left relates to the right to amend. It is proposed that where a bill is filed and it ought to be a common law suit, or where an action at law is brought when it ought to be a bill in chancery, the case may be sent to the other side of the court. If the court were only roundif there were not any other side to the court-if the test were not the side of the court, but the facts of the controversy, what a God-send it would be! There are two things involved in the administration of law-facts, law—that is all. There is nothing mystic, peculiar, hidden about it. No suitor ought to be told at any time that because he has a fool for his lawyer he must lose his case. As indicating the change which comes over the bench, Judge Grosscup has made a decision within a week which is in point. The case one growing out of the Riverside litigation. One Saunders of New York, had a controversy in the Federal Court, and brought his suit on the equity side of the court. An answer was filed, and the case remained pending in that court so long-I do not know whythey say that court is very much overcrowded—but at all events, so long that the statute of limitations would effectually bar a new suit, when the case finally came on for hearing, and the point was made that the suit ought to have been brought on the law side of the court. The court, after argument, reached the same conclusion. But the court said: "The defendant here points out that this complainant came in at this door, when he ought to have come in at that door. Time has so securely locked that door that if he goes out he cannot get in again. I shall therefore hold that you are 'estopped from raising that question after you have filed your
answer, submitted your controversy and taken your evidence-after you have gone so far I shall decline to allow you to escape by the side door of this court." That was not the language of the court, but it is the effect of the decision. Now, of course the proposition made by the President and recommended by the committee ought to be adopted by this Association. But much more ought to be done. But for fear of wearying you I submit this as my solution of this question. It is a pity, perhaps, that I have not been able to submit this at so late an hour that I could get out of town on a train before you could get at me, because I am sure it will stir some of you up.
MR. BRADWELL: You are not one of the kind of men who fire and run. MR. PAYNE: Well
"He who fights and runs away,
(Laughter). In his remarks yesterday, Judge Gross said there was no man in this State who would take the place of David Dudley Field in preparing the New York code, and that there was no man in this State really in favor of abolishing the distinctions between the several forms of action. Wrong on both propositions; except that I do not sympathize with any effort to codify the common law or to make a code.
Some men can see that by the making of a code they can bottle the common law and have it on tap in the form of a code for the purpose of meeting any exigency which may arise. It is a very absurd proposition. Now, the difficulty about our system of pleading, as you all know, was that there was a different form of action for everything. If a man killed another man's horse, he had to have his action sound in tort. If he borrowed his friend's money and did not pay it back, and no note was given, he had his action of assumpsit. If a note under seal was given, he must have his action of debt. And so on. If it came to real estate, he must have his action of ejectment or trespass, as the case might be. The boast of the common law is that there is always a remedy where there is a wrong. In the first place, that is not true; but generally there is a remedy. But what I started to say was that when a state of facts arose, and there was not a form of action to fit that particular case, they went up and had a writ issued to cover that case, and from that time on there was
a new kind of action. I say that is useless. I say that the facts, when presented to a court of justice, should determine the question whether a remedy should be afforded, and no sort of regard ought to be paid to the question as to whether you call it debt, assumpsit, trespass, or anything else. Why, when the distinction between trespass and case was abolished a good many members of the bar had fits. [Laughter.] They thought it absurd that that distinction which we had so long followed should be taken away; but they all recovered and not a man was lost to the profession on that account-not a man.
The truth about it is that the legal profession is regarded by the community as caring more for the form than it does for the substance; and the sooner we get away from that accusation by standing face-front to the demands of the times, the better it will be for the legal profession. What difference is it what we call a thing? Of course you all know the story about Mr. Lincoln. The preachers came down from Boston and wanted him to issue his emancipation proclamation. Mr. Lincoln thought the time had not yet arrived for that step; that if he issued a proclamation it would not be effective-in other words, emancipation would not then emancipate. So he looked those elegant gentlemen in the face and said: “Gentlemen, how many legs has a sheep?" They looked at him with some astonishment; they thought he must be a very foolish man. They said: “Four, of
"If you call the sheep's tail a leg, how many legs will the sheep then have?" asked Mr. Lincoln. “Five,” they replied. "No, gentlemen,” said Mr. Lincoln; "calling a sheep's tail a leg doesn't make it a leg.” [Laughter]. Now, what the people want and what I think they are entitled to is justice without regard to form. The instance which Judge Blodgett furnished, and which was used here yesterday-of the man in Vermont who said in his declaration that John Jones had borrowed his sled and broken it all to the devil, to the damage of the plaintiff of $100, and who got judgment on that declaration-illustrates this idea, which was well presented in the argument last night, that the appellate courts rarely refuse a man justice because of form. But the difficulty is that in the practical administration of justice in the trial courts we are bound to devote one day each week to the consideration of demurrers going, almost in the majority of cases, simply to the question of form; and after the learned disquisitions have been made on these questions, the court very learnedly sits back and looks wise and refers to