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PRESIDENT'S ANNUAL ADDRESS.
States Supreme Court, the late David Davis and the venerable Lyman Trumbull, I confess that I assume the duties of presiding officer with no slight degree of diffidence.
If I am correctly advised, this is the first instance in which your body has gone without the ranks of the active practitioner and elected a President from the State's judiciary force. I have not been able to determine whether in so doing you were impelled by a desire to hear the general topics which interest the Association presented by one who looks through judicial glasses, or whether, in a spirit of fair play, you desired to give a member of the force an opportunity to defend against some of the criticisms which the Supreme and Appellate Courts received at the last two annual sessions.
It is made the duty of the President in his annual address to express such views and recommendations relative to the laws of the State and their administration as shall seem best calculated to conserve the general weal. One of the purposes of the organization is "to facilitate the administration of justice." I do not think I can occupy your attention more profitably than by discussing it exclusively. opinion there is no feature of our system calling more loudly for reform than that which relates to Judicial Procedure. There is no proposed reform so interesting to both lawyer and layman as one that will speed the route from the commencement of a lawsuit to its final determination.
We live in a progressive age-an age of evolution and development. As a people, we boastfully point to the great things we have accomplished in mechanics, in chemistry, in philosophy, in physics-indeed, in all branches of science and art. Where sailing vessels, dependent upon the varying humor of the winds, slowly bore the commerce of our lakes and the ocean, gigantic steamships now plough the water against wind and current. The slow moving canal boat and the lumbering stage-coach have given way to the rapidly moving freight train and the lightning express. We now
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traverse within a few hours the same distance that our grandfathers consumed days in covering. The mysterious power of electricity has been brought within such control that you may stand in the city of San Francisco and converse with a man in New York, although but a few years ago weeks were required to carry a message from one city to the other. We never tire of such comparisons; we could continue them for hours, because the material is all around us. And yet, with all these evidences of progress and advancing civilization, it takes a contested lawsuit longer to travel from the summons in the trial court to judgment in the court of last resort than it did fifty years ago.
A suitor, having a good case, is advised by his attorney that he must bring it on the equity side of the docket. He does so, and after a long and tedious examination of witnesses before a master and a trial by the court, he is told from the bench that, while the evidence shows he is entitled to relief, he has applied to the wrong ear of the court, and that before he can have it he must pay up all the costs and begin a new suit in which he shall apply to that ear with which the court listens to suits at law. He begins a suit at law, and after the pleadings are settled a trial is had, in which the jury, falling to understand the instructions of the court, find against him. The verdict is set aside and another trial had at a subsequent term, resulting in a verdict and judgment for him. His adversary prosecutes an appeal to the Appellate Court, where a reversal is suffered because of an error of the trial judge in the admission of evidence. The case is remanded and a third trial is had, resulting in another verdict and judgment in his favor. His adversary prosecutes another appeal to the Appellate Court, where the judgment is affirmed. An appeal is then prosecuted to the Supreme Court, from whence the case is dropped back to the trial court because of an erroneous instruction. The picture is not overdrawn, as reported cases from the Supreme and Appellate Courts will bear witness.
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To the honest suitor who has seen his case thus beaten about from post to pillar on one technicality after another, the boasted guaranty contained in our bill of rights that he shall have justice administered promptly and without delay is but hollow mockery, and he is quite ready not only to join Jack Cade, in the proposition, “First thing we do, let's kill all the lawyers,” but is in the humor to make way with the judges also.
Under our system of procedure, litigation in civil actions may be, and often is, so prolonged as to amount to a denial of justice. Our system of jurisprudence was borrowed from the mother country. We have from time to time undertaken to improve it. We are prone to look upon the English in comparison with ourselves as a very slow-going people, and yet an English plaintiff, with a good case, can rush a rich and influential defendant through the whole system of courts and out of the court of last resort with a rapidity that would carry away the breath of an American lawyer. In that country a case, commenced and tried within the same month, will run the course of appeal and reach judgment in the court of last resort by the end of the second month. The average time consumed by a hotly contested lawsuit in passing through the Circuit, Appellate and Supreme Courts in Illinois, is three years. When a case reaches the highest tribunal in our land, it there halts for a period of three years, because of the congested condition of the docket.
There is no country in the civilized world where it takes so long to bring a man who has committed a crime to trial and punishment as in ours, and, as a rule, the more heinous the crime the longer the period between its commission and punishment. With motions to quash, challenges to the array, applications for continuance, inquests to test sanity, and the numerous other shifts which the genius of an experienced criminal lawyer may invent, how often do we see a good
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case for the State literally worn out by delay, and a bad criminal go unwhipped of justice.
Most truly may it be said now, as was said by the late David Dudley Field several years ago, in an address to the American Bar Association, "Justice passes through the land on leaden sandals.” How the leader sandals may be removed and justice be made "sure footed and swift,” is the greatest problem which confronts our profession to-day. It is not a problem which legislative enactment alone can solve. The present condition is not due to imperfect legislation entirely. The courts must share in the blame, and can do much to reform the evil.
Judicial procedure embraces the various successive steps whereby a court, clothed with jurisdiction over a particular subject matter and the parties in interest, advances to a final judgment. It is regulated by methodical rules known to those who practice under it, and is the machinery put in motion for the attainment of justice. Lawyers are reluctant to try any new means which promise to accelerate the speed of the machinery, because they have been taught to respect precedent. I am of the opinion that an overweening respect for precedents has produced much of the tardiness complained of. Proper regard for precedents is necessary, but we should bear in mind that in legal procedure they are only useful as aids in the attainment of justice, and should not be made superior to the end sought to be accomplished. Of the judgments at law reversed by our Supreme and Appellate Courts a majority have been reversed, not because the judgment failed to do justice between the parties, but because the trial judge, in ruling upon evidence or passing upon instructions, violated some technical rule of law.
The manner in which technical errors are magnified in courts of appeal cannot but have its influence upon the practitioner, and how often do we find the mode in which the controversy shall be conducted, instead of the substan
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tial rights of the parties, made the fighting ground of the litigation. The trial judge, always desirous of reaching justice, may brush aside the formalities contended for to get at the merits, and as a result reaches both justice and technical reversal. The congested condition of the dockets of our Courts of Appeal is due more to the encouragement which technical reversals have given to dishonest and litigious suitors than to an increase in legitimate business. I fear we, who are members of those courts, have much to answer for. The manner in which the writer of an opinion so often plants himself upon the principles of common law practice, when an appellee with a good case is sent back to the trial court, would warrant the conclusion that we sometimes decide either in ignorance or in defiance of the very liberal statute of amendments and jeofails by which our legislature undertakes to make valid judgments which do justice, although irregular as to form.
The great aim in judicial procedure is to attain justice, and where it can be seen from an inspection of the entire record that such aim has been accomplished, although accompanied by errors and irregularities, the judgment should be affirmed. In the review of a record in a civil case the controlling question should be: Does the judgment below do justice between the parties? In the review of a criminal case the controlling question should be: Is the defendant guilty or innocent of the charge preferred against him? We shall have advanced a long stride in the direction of reform when we can look at every record as did Mr. Justice Mulkey in the celebrated anarchist case. After conceding that errors were committed by the trial court, he says in the separate opinion filed by him: "After having carefully examined the record and given all the questions arising upon it my best thought, I am fully satisfied that the conclusions reached vindicate the law, and do complete justice between the prisoners and the State.”