« AnteriorContinuar »
Chitty and the other books on pleading and holds "the demurrer well taken; ten days to amend.” I have had the same case up three or four times on some question that didn't amount to that (snapping his fingers) when you got through with it. It is an attempt to carry a hulk when you ought to have a magnificent steamer. You waste time and accomplish nothing. Now, I will submit my propositions:
That all distinctions between forms of action ought to be abolished; that no declaration, plea or other pleading should be held bad where the facts stated entitle the party to relief, or constitute a defense to the action; that the distinction in form between law and equity ought to be abolished; that courts should have power to grant such relief as the facts warrant without reference to the form of action or suit.
MR. BRADWELL: I move the adoption of the resolution, or whatever it is.
MR. BOND: I do not wish to take up and discuss the whole scope of the President's admirable address. I want to say a few words in regard to the question asked by Judge Payne, why our proceedings have so little effect. I think I can answer that, because I served two terms in the legislature on the judiciary committee, one term as chairman. During the latter term, we had an eight weeks session, and we had 800 bills referred to our committee. That made 100 bills a week. We sat there every night and every day, including Sunday; yet we could not go through those bills with the care to which they were entitled. The consequence was that all those bills amending any existing statute were thrown away, because we had not time to consider their effect. I recollect one morning I made an adverse report on seventy-four bills, simply because we did not have time to get an understanding of them and because no came in to explain them. Sometimes somebody—a member of the bar, perhaps, in whom the committee had confidence-would come in and explain a bill, and if it was a proper measure the committee would report it favorably. Now, it is of no use for us to resolve here. If these propositions could be formulated into bills and put before the legislature, and if the President of this Association had authority to detail some member to go before the judiciary committee and explain the bills, we could get a good many of
these things enacted into laws. But to sit here and solemnly resolve amounts to nothing.
The situation with us is illustrated by the statement of a very learned French gentleman whom I met on my summer vacation. He said to me: “The people of Europe do not understand how to deal with minorities. America is the only country which has solved the problem. If a man makes a speech against the government in France, they clap him into jail. In the United States, he makes a speech in which he lets off all the bile he has in his mental organization. Then he gets down and says, 'Didn't I give 'em hell?' [Laughter.] And his friends gather around him and say, You gave it to 'em good.' (Laughter.] That is the end of the matter; nobody hears of it again. I think we have got into that same habit with regard to resolutions. To-day they are most excellent resolutions; to-morrow they are forgotten history. . Unless some one goes before the proper legislative committee and explains the bills in a satisfactory way, the committee is afraid of them and feels almost compelled to either drop them or report against them. That, I take it, is why we have so little influence-because we do not send a single man to the legislature to explain a single bill we are in favor of. If that were done, a great many things which we want could be gotten through the legislature.
MR. WILLIAMS: The reason why this Bar Association has had so little influence with the legislature is well stated by Judge Bond. The truth is, when the legislature is not in session three-fourths of the bar stay away from our meetings. At this session, proposed laws should be formulated; they should be carefully discussed and put into the hands of a committee, with authority to present them, and they should be presented at the very outset of the session. At this session we have nothing of that sort. The next meeting of the legislature will have its work all mapped out before we meet again. At the last session we made suggestions entirely too late. The consequence was that we had no hand in the shaping of legislation. Our meetings are held at a time of the year when nearly all the courts of the State are in session, and when almost every lawyer is compelled to stay away. Our measures should be put in proper shape and then put in charge of men who could and would take the time to fairly present them to the legislature.
MR. LACY: The propositions made by Judge Payne, it seems to me, are radical. To abolish all distinctions between law and chancery, it seems to me, would create confusion rather than make procedure in the courts more simple. Under our Constitution every person has the right of trial by jury. In chancery proceedings, a litigant has no such right, as has been held by the Supreme Court and as has become the established law of this nation. Probably it would not be so much out of the way to make all actions sounding in damages come under one head; but when you undertake to say that all distinctions between the several forms of action shall be abolished—when you do away with all distinctions between law and equity and put everything in a conglomerate mass, under a sort of petition-it seems to me you would not simplify anything; it would all end in confusion. When a person sues for money, he resorts to several different kinds of action; it may be an action of tort, or an action of contract, express or implied. Perhaps it would not create a great deal of confusion to put these actions under one head. Some of the distinctions have been abolished—the distinction between trespass and case and between assumpsit and debt. As to replevin, it is simple enough as it is. It seems to me that the proposed changes would not simplify things at all. It will be only a hindrance and create confusion to have all the forms of action abolished.
Furthermore, all the lawyers and courts and everybody in this State are educated in the system we now have, and it is very good, with a few amendments. There is an amendment here proposed by the Committee on Law Reform, to allow a person, if he makes a mistake and gets on the wrong side of the docket, to change over. I think that would be a good thing. It does not seem to me that there would be any utility in the legislature passing any such propositions as are proposed by Judge Payne.
Now, as to the proposed reform of allowing a jury to reach a verdict by a two-thirds or three-fourths vote. I have been holding circuit court as a judge for about twenty-three years, and before that I practiced for about fifteen years. I have observed the workings of the jury system, and once in awhile it has occurred to me that a majority of the jury, or two-thirds or three-fourths, ought to govern, because some juryman may be unreasonably holding out and preventing a verdict. Then, again, I find probably as many cases, or maybe
more, where the jury is saved from doing an unjust act by one or two men. Intellect and ability are not governed by numbers. One man may have more intelligence than forty or fifty other men. And sometimes, the very fact that there are one or two good, sensible men on the jury prevents an injustice. I do not know but what in some cases it would be a help, while in others it would be a disadvantage; but taking it all in all I doubt that the change would be wise and beneficial.
Judge Payne speaks of Cook County-of Chicago. Of course I know nothing about that; I have never held court there. He says there is a good deal of bribery going on there. I see such things in newspapers—that they undertake to bribe jurors once in awhile. But in all my experience in holding court, in a great many different counties, I have never heard it suggested by clients or lawyers or any persons connected with the court or outside of the court, that any juror had ever been tampered with in any case. I cannot believe that bribery in Cook County is general. It may be. Chicago is a great city, of course, and has a great many people in it. It would be a little strange if there were not many rascals there, as there must be everywhere in a dense population. I çannot see why the people there would not, in respect to morals, compare favorably, according to numbers, with the people in other parts of the State. I may be wrong about it. I know a great many Chicago people, and I know a great many honest people there. [Applause.] I do not believe that the people of Chicago have become so corrupt that they have got beyond the point of self-government. As a rule the people of this country are capable—they have enough honesty and intelligence to make them capable of governing themselves.
As to the proposition to let the Appellate Court find the facts, it may be said that somebody has got to find the facts absolutely. It may as well be done by the Appellate Court as any other court. The circuit judges in this State are generally able men, and the Appellate Court is selected from the circuit judges by the Supreme Court themselves. If able men are not selected, it is the fault of the Supreme Court. The Supreme Court is pretty well crowded and cannot give attention to matters of fact. So there would be nothing wrong in that proposition.
MR. Scott: If we had a week or two at our disposal, or if we could set it down for consideration a year hence, we might, with some advantage, enter upon a discussion of the resolution which Judge Payne has presented; and I am not sure that it would not be a good thing if we did set it down for some future time when it could have full consideration. But we have only half a day left. I therefore move that the report of the Committee on Law Reform be taken from the table and that we proceed with its consideration. I might say that some other things in the President's address, which have been referred to by Judge Payne, may be considered in a supplemental report to be presented this afternoon.
PRESIDENT HARKER: There is already a motion before the Association, I believe.
MR. GROSS: I move that the resolution, or set of propositions, of the distinguished gentleman from Chicago (Mr. Payne) be referred to the Committee on Law Reform.
The motion prevailed.
MR. SCOTT: I now move that we proceed with the report of the Committee on Law Reform.
PRESIDENT HARKER. There is no second to the motion.
MR. Scott: I will withdraw that motion in view of the fact that a great many members have left. I will move that we adjourn to 2 o'clock, so that there may be a full discussion of the subject.
The motion prevailed.
The Association reconvened at 2 o'clock.
PRESIDENT HARKER: The first number on the programme this afternoon is an address on “Some Peculiarities of the Law of Fire Insurance,” by Myron H. Beach of Chicago.
[ The address will be found in Part II.]