« ΠροηγούμενηΣυνέχεια »
DELIVERED BEFORE THE ILLINOIS STATE BAR ASSOCIATION AT ITS TWELFTH
ANNUAL MEETING, HELD AT SPRINGFIELD, JANUARY 8, 1889.
BY THOMAS DENT, PRESIDENT.
Ladies and Gentlemen :
The first duty which the Association assigns to the President is to deliver the annual address." The constitution, however,
“ after making use of that general expression, immediately declares that he shall be ineligible for the next terin of service. The command is general, as if to allow a spice of variety in the course of yearly changes which the prohibition effectually secures to this body, which, as being akin to a corporation, may not be supposed to be mortal.
In rising to undertake the task assigned to the Chair, I offer my thanks to the Association for the compliment implied by a selection for this position, which has been graced by some of our most distinguished jurists, ripe in years and in honors. Vor am I unmindful that our State has for a considerable time stood forth with prominence among her sisters of the Union in various respects, and perhaps signally so as having among her citizens gentlemen of our profession whose fitness for the highest public offices in our government has received deserved recognition. We may, indeed, congratulate ourselves that since our last meeting one of our number who filled this Chair but a short time ago, and frequently participated in our meetings, has been called to preside over the Supreme Court of the Union.
Our annual reunion is commemorative, and coming near the beginning of each year, it is also in the nature of a commencement. It gives an opportunity to review the past, and should help to hold out a torch to light our way in the future of our professional work. Rejoicing as to the good already accomplished may better fit us for the discharge of the duties yet to
arise. Bringing the cypress for the biers of those who have been translated, we should also bear with cheerful hands the laurel for those whose achievements should win our applause.
We have associated for objects which are worthy of our best efforts, because they are important to the interests of our profession, and to the general public as well. When we engage to
“ cultivate the science of jurisprudence, to promote reform in law, to facilitate the administration of justice, and to elevate the standard of integrity, honor and courtesy in the legal profession, to encourage a thorough and liberaleducation, and to cherish a spirit of brotherhood among the members” of our calling, the engagement deserves full attention.
If you think of it, this spirit of brotherhood lies close to the foundation of law itself.
“Heaven doth with us as we with torches do,
Not light them for themselves.” Law, indeed, recognizes the fact that "man is a social being, fond of the company of his fellows, and always disposed to live with others.” Ñan meets with law and is subject to it from the cradle to the grave; “as every mountain stoopeth to the vale." In sunshine and in storm the play of forces goes on, and teaches the lesson of dependence and trust, but at the same time the need of rules to guard social welfare. Such rules, when taking the form of enactment into law, may be supposed to have for their object first of all the public interests, but consistently therewith, the individual good. Especially in governments by the people and for the people, much of the people's needs and progress, along with marks of the proneness of human nature to error or wrong, will be bound up in their laws, which in truly representative governments are likely to express a considerate judgment growing out of wide experience and thoughtful attention to the ongoings of life.
Happily, in our earliest Territorial and State organizations, a vast store of suitable rules had already been provided for the government of private and public affairs. They came as a priceless heritage to the early pioneers; and the work of revision, or of adding to the structure, has been like building upon a sure foundation.
It has been said, that “the first structural principle, the essence of legislation, must be the nature of man: This idea has been observed in our Federal and State Constitutions; and all our laws are intended to promote, or secure, the living interests of the people as members of the body politic.
Demosthenes seems to have said that the design and object of laws, treating the word as applicable to rules prescribed and publicly administered, was to ascertain that which was just, honorable and expedient. Sir Henry Finch, as many learned legal gentlemen have since done, attempted a definition of law. He said, "Law is an art of well ordering society"; using the word " art,” both as to legislation and judicial action, in a special sense, meaning that laws were thoughtfully and wisely enacted, or provided, with reference to "weli ordering society.”
As to the science of legislation, we realize that "Laws should have respect to the moral and physical nature of man in general, and more especially to the particular character of those to whom they are directed.” A thought akin to this may also have tolerance with us, that "Laws should vary with the great and radical changes in the genius and disposition of the people, brought about by the gradual development of the energies of a nation." (Hoffman's Legal Outlines, 296). But, withal, “Good sense and justice are the first requisites in governing a civil body.”
We are interested, now and then, in turning over a leaf in legal history, to bring into view a point of it, here and there. In doing this we may be led to a contemplation of what has concerned former generations, or to a livelier view of that which is too near us to be historical. In the retrospect and prospect combined, we notice that the tablets of old have become tables wide spread. The invention and development of the art of printing, and the growth of general education, have, as we readily see, contributed largely to the secure preservation and continuance of what is useful in legislation, and in legal science and administration; and as we add to the superstructure we find the English system of laws so well grounded, in the main, as to be capable of receiving into its general structure all elements calculated to adapt it to the changes in social and business relations.
In Fortescue's “De Laudibus Legum Angliæ," written over four hundred years ago, is a passage referring to delays in court. He instances what he found to be undue precipitancy in a criminal case, the trial of which he witnessed. He said, "In real actions, almost everywhere, the process goes on slow and tedious; but in England it is more expeditious." He then refers to cases of much delay in France, more than was admitted under the laws of England. He, however, does not condemn a due mean of delay; for he says, in this passage, which is otherwise of some curiosity:
“But it is really necessary that there should be delays in legal proceedings, provided they be not too dilatory and tedious. By these means the parties, in particular the party prosecuted, is better provided with his proper defense, and advice of counsel, which otherwise neither of them could be. either to prosecute or defend. Judgment is never so safe when the process is hurried on. I remember once at an assizes and gaol-delivery at Salisbury, that I saw a woman indicted for the death of her husband, within the year. She was found guilty, and burnt for the same. In this case the judge of assize, after the whole proceedings before him were over, might have respited the execution of the woman, even after the expiration of the year. At a subsequent assizes I saw a servant of the man who was so killed, tried and convicted before the same judge, for the same murder, who made an ample public confession that he was the only person who was guilty of the said fact, and that his mistress, who had been executed, was entirely innocent of it. Wherefore, he was drawn and hanged,' etc.
In reading this passage, we note how trials and executions were attended to in those days. We observe, also, that the judges on circuit seem to have exercised something like executive functions after sentence, or such as we regard as executive now, although the suspension of sentences by our judges, within their province and at the time or term of the judgment, has probably a sanction in this old legal authority, and in legal reason.
The laws had evidently improved in Lord Coke's time; for he assures us: “The law of England
hath been fined and refined by an infinite number of grave and learned men, and by long experience hath grown to such perfection for the government of this realm, that the old rule may be justly verified of it, Neminem oportet esse sapientiorem legibus--no man out of his own private reason ought to be wiser than the law, which is the perfection of reason. (Co. Lit. 97 b). Addressing himself to students, and referring as well to those who were applying or expounding the law, Coke likened the law to a “deep well, out of which each man draweth according to the strength of his understanding;” and added: "He that reacheth deepest seeth the amiable and admirable secrets of the law."
His encouragement to students should also be recalled: “The beginnings of this study seem difficult, yet when the professor of the law can dive into the depths, it is delightful, easy, and without any heavy burden, so long as he keep himself in his proper element. (Ib., 71 a). A later writer has said: "The English law is, for the most part,
indigenous, or comparatively little has been imported into it from the Roman; but the coincidences show how numerous are the principles and distinctions which all systems of law have in common.
* The coincidence is preëminently remarkable in the Roman Law and Common Law of England.
Sir Nicholas Bacon, in speaking of the laws of England, said: “Nor did the fundamentals alter, either by diversity and mixture of the people of several nations in the first entrance, nor from the Danes or Normans in their survenue.'
We deem it best that the fundamentals, such as are in constitutions, or in the principal statutes enacted thereunder, should not be hastily disturbed or altered; while we also agree with Lord Keeper Guilford: “The law must be kept as a garden, with frequent digging, weeding, etc.” Yet there has, at times, been propriety in a bold and outspoken suggestion made by Thomas Jefferson, in a letter which he wrote from Paris to his friend Madison, in 1787, deploring the instability of statutes, and suggesting that there should be a twelvemonth between engrossing a bill and passing it. (Vol. 2, Jefferson's Works, 333).
In the same letter confidence in the people was expressed, as the writer said: “The peace of a state or nation will be best preserved by giving information to the people.” He regarded this as the most certain and legitimate engine of government, and added : “Educate and inform the whole mass of the people, and enable them to see that it is to their interest to preserve peace and order, and they will preserve them. This reliance can not deceive us, so long as we remain virtuous. (Ib., 332). With a prudent forecast, it was added: “I think we shall be virtuous as long as agriculture is our principal object; which will be the case while there remain vacant lands in any part of America. When we get piled on one another, in large cities, as in Europe, we shall become corrupt, as in Europe, and go to eating one another, as they do there. (Ib.)
We in this State have stood on the vantage ground of the foundations laid for us by the wisdom and patriotism of the founders and first builders of our Commonwealth. How some of the early fathers in our State Legislature managed when at the helm, we may learn from a paragraph or two in Gov. Ford's History of Illinois. As we present his words, those of us who remember the author may realize again that he was capable of giving home thrusts, in joke and in earnest, and that he seemed in the retirement of private life to look to