PROCEEDINGS. the house now is the adoption of the resolution offered by Mr. Gresham. JUDGE CHURCH: I think I was in order. PRESIDENT HOLDOM: No, because you have already spoken once and there are others who wish to speak. JUDGE CHURCH: The resolution was not before the house. PRESIDENT HOLDOM: I ruled you were out of odrer. MR. SULLIVAN: I move the previous question on Mr. Gresham's resolution. The motion was seconded. PRESIDENT HOLDOM: The motion is on the adoption of the previous question; that is now moved, I understand. MR. PAGE: I want to vote for it, I just want to explain my vote, that is all. PRESIDENT HOLDOM: It is not explainable at this time, as I understand it. MR. PAGE: As to the previous question,-if there are nine men that are in favor of that I think they ought to be appointed on the committee and let the resolution go through. PRESIDENT HOLDOM: The previous question is moved, which cuts off debate. All in favor of— MR. HIRSCHL: The previous question was not seconded. The motion was adopted. PRESIDENT HOLDOM: Now the motion before the house is on the adoption of the resolution offered by Mr. Gresham; are you ready for the question? The question was called for. The resolution was adopted. MR. PAGE: I move we take a recess till two o'clock P. M. PROCEEDINGS. The motion was carried and a recess taken until two o'clock P. M. AFTERNOON SESSION. The Association reconvened at 2 o'clock P. M. PRESIDENT HOLDOM: The special order brought over from yesterday is the Report of the Committee on Judicial Administration,-Mr. Lessing Rosenthal. Report presented as follows: Mr. President and Members of the Illinois State Bar Association: Your Committee on Judicial Administration again feels that it would be shirking its duty if it did not present for your consideration, and take as the subject of its report, the method now in vogue in our Supreme Court of hearing, considering and determining causes. For a long time the feeling has been prevalent and general that the method employed is wrong, that it is unjust to litigants, to lawyers and to the court itself; that it is prejudicial to the reputation of the jurisprudence of this State. It has often been commented upon, often discussed and often criticised, yet, so far as we are advised, it is still pursued without change. Two years ago the Committee on Judicial Administration recommended to this Association that a committee of five be appointed by the President of the Association, to present a memorial to the Judges of the Supreme Court on this subject, or take such other action in the premises as may appear most expedient, with the end in view of securing consolidation, not only in theory but in fact, of the Supreme Court of the State of Illinois. The recommendation of the committee was unanimously adopted by the Association, but no action was ever taken by the committee appointed. Yet the query is repeatedly put by the members of the Bar, why is no change made? Lawyers are very free in their discussion of this subject privately with one another; with few exceptions they not only find fault with, but deplore the existing system, yet strange to say, many who have been severest in their criticisms, have either entirely refrained from saying anything publicly, or have hesitated to speak openly. Underlying this has probably been a half-conceived or half-conscious fear (groundless, as we conceive it to be in the case of the broad-gauged men on the Supreme Court) that the public utterance of a conviction respecting PROCEEDINGS. a court or its methods might be prejudicial to them or their clients. But why should it be? And is it right that in a democracy, among a liberty-loving people, we should be influenced by any such consideration? We are all on an equality. The judges are the people's representatives in the interpretation of the law and the protection of rights. As such they are entitled to great respect. But this respect in a republic neither means the bending of a suppliant knee, nor humble, cringing submission. Methods, judgments and opinions may be criticised-yea, freely criticised, so long as personalities are avoided, and improper motives do not come into play. Too often indeed the criticisms spring from mere ill-considered dissatisfaction, from a feeling or passion engendered by non-success, or even, as has happened in the case of cur courts within the recollection of all of us, from sheer malice or spite. But this is far different from intelligent, well meaning criticism and discussion. must welcome this! Every court and every judge of every court And it is such criticism that we are intending at least to lodge against the method now pursued by our Supreme Court in their consideration of cases. We are not finding fault with the judges as such, but our animadversions are directed against a system employed by them, too long in vogue and which ought at any rate to have been abolished since the consolidation of the court in one place. Previous to the consolidation, considering the great inconveniences to which the court was subjected in roaming about the State, considering that it did not have one fixed, settled abode, there may have been some justification for the assignment of a case to a single judge or committee to examine, report his conclusions, and write an opinion, but there can not be now. We understand the present practice to be, that after a case is submitted it is briefly discussed in chambers, provided it has been orally argued, the record, abstract and briefs are then taken by the judge to whom the case happens to have been numerically assigned, an opinion is written, set up in print, distributed among the judges, examined by them, and later in conference discussed, revised and corrected. It is not claimed that each judge examines every record, he may take a look into every abstract, he may possibly read each brief, but in most cases this is done in the light of the already prepared opinion before him. There is no assurance to a suitor then, that he has not the decision and opinion of a single judge, though apparently concurred in by six others. Contrast this method with that followed by the Supreme Court of the United States. This has been described with fair detail by some of the judges themselves. In responding to a toast in October, PROCEEDINGS. 1896, Mr. Justice Harlan, after expressing his great surprise in finding in his intercourse with the members of the Bar, that the impression prevails with some that cases, after being submitted, are divided among the judges, and that the court bases its judgment in each one wholly upon the report made by some one judge to whom that cause has been assigned for examination and report, and after remarking that he had met with lawyers who actually believed that the opinion was written before the case was decided in conference, and that the only member of the court who fully examined the record and briefs was the one who prepared the opinion, observed: "It is my duty to say that the business in our court is not conducted in any such mode. Each justice is furnished with a printed copy of the record and with a copy of each brief filed, and each one examines the records and briefs at his chambers before the case is taken up for consideration. The cases are thoroughly discussed in conference, the discussion in some being necessarily more extended than in others. The discussion being concluded-and it is never concluded until each member of the court has said all that he desires to say-the roll is called and each justice present and participating in the decision votes to affirm, reverse or modify, as his examination and reflection suggests. The chief justice, after the conference, and without consulting his brethren, distributes the cases so decided for opinions. No justice knows, at the time he votes in a particular case, that he will be asked to become the organ of the court in that case; nor does any member of the court ask that a particular case be assigned to him. "The next step is the preparation of the opinion by the justice' to whom it has been assigned. The opinion, when prepared, is privately printed, and a copy placed in the hands of each member of the court for examination and criticism. It is examined by each justice and returned to the author, with such criticisms and objections as are deemed necessary. If these objections are of a serious kind, affecting the general trend of the opinion, the writer calls the attention of the justice to them, that they may be passed upon. The author adopts such suggestions of mere form as meet his views. If objections are made to which the writer does not agree, they are considered in conference, and are sustained or overruled as the majority may determine. The opinion is reprinted so as to express the final conclusions of the court, and is then filed. "Thus you will observe, not only is the utmost care taken to make the opinion express the views of the court, but that the final judgment rests, in every case decided, upon the examination by each member of PROCEEDINGS. the court of the record and briefs. Let me say, that during my entire service in the Supreme Court, I have not known a single instance in which the court has determined a case merely upon the report of one or more justices as to what was contained in the record and as to what questions were properly presented by it. When you find an opinion of the court on file and published, the profession have the right to take it as expressing the deliberate views of the court, based upon a careful examination of the records and briefs by each justice participating in the judgment." These remarks of Judge Harlan's may be found reprinted in 30 Am. Law Review, pp. 904 and 905. To them may be added what is probably well known, that oral argument is encouraged by the Supreme Court of the United States; that many cases which have been submitted on briefs are set down for oral argument that not infrequently in cases a re-argument has been ordered; that two hours are accorded each side for oral argument; that very few cases are set down on the call for each day (under the rule the number can not in any event exceed ten), and that cases are disposed of shortly after being submitted and while still fresh in the minds of the court. In our State, on the other hand, while it can not now be said that oral argument is discouraged, there is nothing to encourage it, except the thought that without it you may possibly be unable to make your case familiar to the whole bench, and even then you are not sure that the judge who will write the opinion may not be absent, as has several times happened. In time, each side is by the rule confined to one hour, except by special leave. About twenty cases per day are called, and the call of this large number is continued on successive days until the calendar is disposed of. The judges are together but a comparatively short time. They soon disperse to their own homes in the various parts of the State, to pore over and study the records and briefs in the cases falling to their lot and to write and distribute their opinions. In speaking of the mischiefs that flow from the assignment of cases to a particular judge, an apparently well informed anonymous writer in an article written in 1879 for the 5th volume of the Southern Law Review (p. 53) entitled, "Reports, Reporters and Reporting." relates that "it is said of the late William L. Marcy, that when he was one of the judges of the Supreme Court of New York, he prepared two opinions in a cause which had been assigned to him. He read the first in the consultation room and invited the consideration of the brethren. They discussed it, pronounced it decisive, and voted unanimously that it should be reported as the decision of the court. He then told them he had prepared another, and asked them |