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knowledge of the law were a fact, and not a presumption of law only. Whatever the State can do towards giving to the people an actual knowledge of the laws, it should do.

It is the duty of the legislature to express the public laws in words that are clear in their meaning. The words of a new statute should be very deliberately and carefully selected. This is hardly possible under the present mode of preparing, amending and passing bills; and it not infrequently happens that the phraseology of a statute is so defective or obscure as to defeat the object of the Legislature. The recommendation of the American Bar Association that each State Legislature appoint a committee of Senators and Representatives, "Who shall together constitute a joint standing committee for the revision of bills before their final passage" commends itself to my judgment, and I recommend it to your favorable consideration. It would most certainly prove a "material check to a growing evil."

Another object of this association is to "promote reform in the law."

The law is never stationary. It is forever growing, and forever wasting. If it were reformed to-day until the beauty of perfection should grace it, it would be imperfect to-morrow. A rule of law useful to-day, would be useless to-morrow; and a rule not required in the present, may be needed to meet the demands of the future. This necessity for change, by elimination and addition, is often productive of unwise and mischievous legislation. Especially is this true when legislation is largely in the hands of men unskilled and inexperienced in the science of jurisprudence. Change is not necessarily reform. A new law should never be made until after a careful consideration of its relations to, and effect upon, existing laws; nor unless it is intended to reach some desirable end that cannot be reached without additional legislation. Nor should a law be repealed until it has been tested in practice, and found to be productive of no adequate public benefit. Too much change-too much hasty and inconsiderate legislation-is one of the most prolific sources of bad laws. Solon bound the Athenians by solemn oath to obey such laws as he should make, for a period of ten years. He gave them a code, and then traveled in foreign countries for ten years. and thereby established a world-wide reputation for wisdom. Modern legislators might learn a lesson from the Athenian law-giver, without following too closely the precedent he established.

The ordinance of 1787, "For the government of the Territory of the United States Northwest of the river Ohio," provided that judicial proceedings should be according to the course of the common law. The Territorial Legislature ajterwards enacted that the common law of England, so far as the same was applicable and of a general nature, and certain English statutes made to supply the defects of the common law, should be the rule of decision, and should be considered as of full force until repealed by legislative authority. After the admission of Illinois into the Union, the same provision was re-enacted by the State Legislature, and is still in force. At first, all the courts were at sea in regard to what portions of the common law were or were not locally inapplicable. Difficult questions arose, and naturally drifted into the Supreme Court, where the common law was pruned and trimmed and molded by judicial construction. The Legislature immediately commenced a process of patching the common law by statutory enactments, which has continued to the present time. The ground-work of the common law remains, but it has been so often patched, and in so many places, and so much modified by judicial construction, that it takes very careful examination and discrimination to determine which is original, what has been added to, and what eliminated from it.

England, from whence we transplanted the common law, with its technical notions and its courts of law and chancery, administering justice on entirely different principles, has outstripped us in the race of legal reform. It has recast its judicial system, abolishing the distinction between courts of equity and of law, and providing that the administration of justice in all courts shall be regulated by the principles of equity. It is difficult to discover a satisfactory reason why we, in this country, cling to the technical common law actions, and the technical rules attached and belonging to them, which England has, in substance, thrown overboard, and deny justice to suitors with good causes who happen to approach the wrong side of the court. We have attempted to bend the straight lines of these common law actions, and relieve suitors from the hardships which arise out of their technical application, by statutes allowing amendments in matters of substance and form at any time before final judgment.

This is a step forward. It is a concession of the necessity of reform. It is an acknowledgment that these common law actions came to us, surrounded with technicalities that amounted to a denial of justice, when the wrong form of action had been brought, or some technicality overlooked in bringing, or in the progress of the right form of action. It

is a confession that such technicalities have survived too long, and should now be modified, or entirely swept away. But it is not the reform itself. Something more is required. That distinguished American lawyer, Hon. David Dudley Field, in his address to the American Bar Association, at Chicago, in August last, said:

"What is required, and what must, at some time or other be undertaken, is a treble process; the process of elimination, the process of condensation and the process of classification. This performance would make a code, call it by whatever other name you please. That such a work is the inevitable outcome of American institutions, I am confident, and I beg leave to commend it to your earnest attention. Many lawyers are frightened by the idea of a code, or rather, I should have said, by their idea of one. They imagine it to be revolutionary, something that would take away the substance of what they are accustomed to, and force them to learn a new system. These persons greatly err. It surely is not revolutionary to set in writing what has already been decided, and of course has been spoken or written by somebody somewhere. It is not revolutionary to condense the utterances that have been made from the bench in hundreds of years. It is not revolutionary to arrange the several propositions thus evolved. No spectre is here to frighten anybody.

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"During the century that has elapsed since our revolution, the laws of England, and of America following in the footsteps of England, have gradually gathered to themselves fragments of many other laws, or have elaborated many that are new, until at last we see spread before us the vast conglomerate of to-day. Let us collect and bind together, in their appropriate places, what we have, and then we can the better tell what more we need."

This treble process of elimination, condensation and classification, suggested by Mr. Field, is one of the urgent demands of the present hour in the State of Illinois, even though the present system of practice and pleading remains. Many statutory definitions should be supplied. A great deal of law that has been made by the courts, under the stress of necessity, should be formulated and condensed, and given legislative expression. Statutes that are practically obsolete, and rules that practice has demonstrated are hindrances to justice, should be eliminated by law, rather than be frittered away by judicial construction. An instance will serve to illustrate my meaning.

The Statute provides that "Jurors in all criminal cases shall be judges of the law and the fact." This statute, in

clear and unequivocal terms, places all questions of law arising in every criminal trial, in the hands of the jury alone. Neither the profession nor the people have ever been satisfied that the Statutory rule was safe in practice, and it has not been followed. It is universally overridden by the courts. Instructions have been asked and given in criminal trials, the same as in civil cases. In Schnier vs. The People, 23 Ill. 29, it is said, "It is proper and usual, and even the duty of the court, if requested by either party or by the jury, to instruct them what the law is; but, it was the design of the Statute that they should not be absolutely bound by such instructions. If they can say, upon their oaths, that they know the law better than the Court does, they have the right to do so."

In Davidson vs. The People, 90 Ill. 232, it is said, "It is not unreasonable to require the jury to say they know the law better than the Court, before they disregard its instructions."

The courts accept and recognize the Statutory right of the jury to disregard the law as given them by the courts, but they have felt that it was necessary to warn the jury, that before doing so, it was their "duty to reflect whether from their habits of thought, their study and experience, they are better qualified to judge of the law, than the court." This is equivalent to saying to the jury that they should not use the power which the Statute has placed in their hands without any limitation or qualification. Would it not be a real "reform in the law" to repeal the Statute, and provide by law that the jury should try only issues of fact, and the court determine all questions of law.

The great inequality of punishment meeted out to offenders of the same class in different parts of the State, under different circumstances, and surrounded by different influences, seriously raises the question whether juries should ever be allowed to fix the punishment for any crime. The result of my own experience and observation, is a very strong conviction, that in all criminal trials the jury should pass upon the question of innocence or guilt alone, and that all punishment, following after a verdict of guilty, should be left wholly with the court.

Whether it would be a change for the better to allow less than all the members of a jury to return a verdict, is still a question open for discussion. Every verdict is the result of concession, if not of actual compromise. The rule that requires entire unanimity, it is said, places it in the power of

one juror to defeat the judgment of eleven others, and force them to a verdict which is unsatisfactory to them, or to a disagreement. If ten jurors should agree upon a verdict, is that more likely to be a just and true verdict than the verdict obtained by the dictation of one or two stubborn or corrupt jurors? On the other hand, is it true that sometimes a minority of jurors alone are able to resist public clamor, and popular prejudice, and prevent their invasion of the jury box?

I am not satisfied that the change would be beneficial or even safe. Trial by jury is an old institution; and innovations upon it should be made with care, and then only such as will tend to the more speedy and certain administration of justice. I do not believe that the jury system is so perfect that it cannot be improved. I believe that means can be devised that will place more intelligence and more knowledge of business and of the law, in the jury box, than is usually obtained under our present system. If we were searching for inexperience in, and ignorance of the duties required of jurors, we could hardly hope to find a better plan to secure them than we now have. It is legal cause for challenge if one called as a juror has had recent experience in the duties he is called to perform. The jury lists, in the first instance, seldom contain the names of active, successful business men. If called, men of this character generally manage to get excused and escape the service. They have too much personal business, and too many private interests in hand. They have not the time to spare. They leave jury service to men whose more limited education and business ability have placed them a little behind in the race of life; and then when juries, composed of men unskilled in the intricacies of business, render unsatisfactory verdicts, they are loud in their criticism, and indulge in unreasonable denunciations of the trial by jury. What we want, and must have, is a more intelligent selection of jurors than can be expected to be made by the blind goddess of chance.

The diversity of legislation in the different States, upon questions which affect the business and people of the entire country, has given rise to many serious questions and inconvencies. It would seem that upon all questions affecting commerce, and the agencies by which it is carried on; questions of marriage and divource: the execution and acknowledgement of all instruments conveying, or creating liens on, real estate; the attestation and probate of wills-and others of this general nature-uniformity of legislation is desirable throughout the country.

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