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The motion was carried and a recess taken until 2 o'clock P.M.

AFTERNOON SESSION.

The Association reconvened at 2 o'clock P. M.

PRESIDENT HOLDOM: At the hour of adjournment we had been favored with an able address by Mr. Stevens. We will now proceed to hear the report of the Committee on Legal History and Biography. In the absence of Mr. Williams, I will call upon Mr. Gregory to make that report.

To the President and Members of the Illinois State Bar Association:

We herewith present as the report of the Committee on Legal History and Biography, an article contributed by Mr. S. S. Gregory, being a brief memorial of the late Jesse J. Phillips, an honored Justice of the Supreme Court of this State; one whose services in the army of the Union and on the Supreme Bench entitle his memory to be held in the highest esteem and reverence. It was deemed by the committee that no more fitting report than this could be made. The Committee,

E. P. WILLIAMS, Chairman.

July 10, 1901.

REPORT OF COMMITTEE ON LEGAL HISTORY AND BIOG

RAPHY.

BY S. S. GREGORY.

To the President and Members of the Illinois State Bar Association:

Your Committee on Legal History and Biography has deemed it not inappropriate to present at this meeting of the Association, a brief memorial of Jesse J. Phillips, lately a Justice of the Supreme Court, who died at his home in Hillsboro, on Saturday, February 16, 1901.

It is not intended, however, here to record those biographical and chronological notes which are always made with great fidelity and exactness by the Necrologist of this Association; he can be relied on to preserve for the records of this society all these important data.

Judge Phillips was born in Montgomery County, in this State, May 22, 1837, where his childhood was spent. After an attendance upon

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the public schools he pursued a course of study at Hillsboro Academy. After leaving that institution he entered upon the study of his chosen profession at Hillsboro, was admitted to the bar January 22, 1861, and began practice in that place, which continued to be his home up to the time of his death.

On the breaking out of the civil war he entered the army, holding a commission as Major in the Ninth Illinois Infantry, and served until September 1, 1864, with that conspicuous and almost reckless courage which to know him was to recognize as one of his most marked characteristics. He was severely wounded, promoted to be Lieutenant-Colonel and brevetted Brigadier-General March 13, 1865.

On leaving the army he resumed the practice of his profession at his home. June 16, 1879, he was elected Circuit Judge for the Fifth Judicial Circuit and re-elected June 16, 1885. June 19, 1890, he was assigned by the Supreme Court to the Appellate Court for the Fourth District, where he sat until his election as a member of the Supreme Court to succeed Judge Scholfield, June 3, 1893.

His

When his term expired he was re-elected for the full term. judicial service, therefore, extended over a period of nearly twenty-two years, the last eight years of which he was a member of our Court of last resort. His first opinion in that tribunal is found in the case of Moore vs. The People, 146 Ill., 600, and his last in Hagenow vs. The People, 188 III., 545. This opinion was filed December 20, 1900. It is significant of the labor imposed upon our Supreme Court, that its opinions during the time that Judge Phillips was a member of it, a little less than eight years, fill forty-three volumes.

However, as a rule, Judge Phillips did not largely contribute to the bulk of these volumes, for his opinions were generally short. Possibly a man who has had some considerable experience at the bar or as a Circuit Judge is more likely to look at a case in a practical way and decide it in short opinion than one whose knowledge of the law is more academic or theoretical. Such sometimes seem to deem it necessary to write a treatise upon any question presented. Perhaps this enhances the reputation of the writer; certainly John Marshall furnishes a conspicuous example of a great judge who wrote long opinions. But brevity now accords with the spirit of the age. It is in judicial opinions a virtue; and judges of courts of last resort would do better to emulate Mansfield and the English judges as well as Gibson, Shaw and the sitting judges in Massachusetts, than to follow Marshall in this regard.

Some things have been settled since his day; and re-examining the

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foundations of the law too frequently, like often uncovering the foundations of a great building, tends rather to weaken the superstructure.

This merit of brevity marked the opinions of Judge Phillips. It so happens that both his last and his first opinion were filed in criminal cases. Probably this has no particular significance, as it is understood by the bar that cases are taken by the justices of the Supreme Court in regular rotation. It is a fact, I think, nevertheless, that Judge Phillips was regarded by the bar as a good judge in criminal cases; that is to say, as one who could be relied upon to declare the law as he saw it, with no predisposition either for or against the accused. Her again his experience at the circuit was undoubtedly of value to him. A lawyer who has been exclusively in civil practice suddenly translated to the Supreme Bench almost never makes a good judge in criminal cases. Instinctively and inevitably he is prejudiced against the accused. He feels that he must be guilty or he would not have been convicted, and that the efforts of his counsel are directed, as too often they are, to defeating justice through technicalities. Nevertheless, accused persons have their rights, and are entitled to their assertion in the Supreme Court.

Yet, though Judge Phillips generally wrote short opinions, and though he seemed to be much more at home than some judges in the discussion of criminal questions, he could, when the occasion required, unravel a long, complicated and difficult civil case, and make it the subject of exhaustive and extended discussion. As an illustration of this the case of Farwell vs. The Great Western Telegraph Company, 161 Ill., 522, may be taken. The record in that case disclosed a scheme of fraud and dishonesty by which under the forms of law the grossest injustice was being perpetrated. As too often happens, and as happens a great deal oftener than the law requires, these fraudulent efforts had been stamped with the judicial approval of the Circuit and Appellate Courts; or at least those courts had apparently taken refuge in what is sometimes the shibboleth of judicial feebleness and littleness, that though there might be a great wrong contemplated the court was powerless to prevent it. But the Supreme Court, Judge Phillips writing the opinion, which occupied some eighty-nine pages, exposed fully the fraudulent character of the claims made by the appellees and directed a sweeping judgment of reversal, overruling both the Appellate and Circuit Courts, and sustaining the conclusions of the master.

Judge Phillips was in politics a Democrat. He was literally a Democrat. He believed in popular government. He believed in the rule of the people. He had a kind of Jeffersonian faith in the wisdom, integrity and patriotism of the masses of the people. He believed also

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that it was the duty of the courts to exercise their powers in the due control of great interests or combinations hostile to public welfare and to popular rights.

In the case of Ford vs. The Chicago Milk Shippers' Association, 155 Ill., 166, the Supreme Court upheld the anti-trust act of July 11, 1891, Judge Phillips writing the opinion and declaring a combination of milk dealers formed for the purpose of regulating and fixing the price of milk to be sold in Chicago to be illegal. As happens sometimes in such cases, the Appellate Court with conventional timidity, had not seen its way clear to declare the illegality of this combination, although the Circuit Court had ruled against it; but Judge Phillips in the course of his opinion, said: "And where, in the organization of the corporate body or the control exercised by the stockholders in determining the agencies selected for managing its business, the business as thus conducted, managed and controlled is against public policy or in contravention of a statute of the State, such acts of the corporate body and of the individual shareholders are the combined acts of all, and courts are not so powerless that they may not prevent the success of ingenious schemes to evade or violate the law. There can be no immunity for evasion of the policy of the State by its own creations. The corporation, as an entity, may not be able to create a trust or combination with itself, but its individual shareholders may, in controlling it, together with it, create such trust or combination that will constitute it, with them, alike guilty."

In a much later case he as the organ of the Court la.d down the salutary principles which the courts should regard in dealing with these great questions. That was a case where the Associated Press had refused its service to a newspaper in the city of Chicago, upon the ground that its contract with that paper prohibited the latter from receiving news from certain other news agencies and warranted the Associated Press in discontinuing its service if the local newspaper disregarded its contract in this regard. There again the Court of first instance and the Appellate Court failed to grasp the principles of law applicable and duly to appreciate their own great powers and duties in this regard. That was the case of the Inter Ocean Publishing Company vs. The Associated Press, 184 Ill., 438. In that case Judge Phillips said: "Where one is the owner of property which is devoted to a use in which the public has an interest, he in effect grants to the public an interest in such use, and must, to the extent of that interest, submit to be controlled by the public for the common good as long as such use is maintained. The manner in which it is devoted to a use in which the public has an interest may be very diverse and

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the public interest in such use may be of a widely variant character; but where the use is one in which the public is interested or has an interest, public control is necessary for the common good. * ** The Associated Press, from the time of its organization and establishment in business, sold its news reports to various newspapers who became members, and the publication of that news became of vast importance to the public, so that public interest is attached to the dissemination of that news. The manner in which that corporation has used its franchise has charged its business with a public interest. It has devoted its property to a public use, and has, in effect, granted to the public such an interest in its use that it must submit to be controlled by the public for the common good, to the extent of the interest it has thus created in the public in its private property." It is possibly true that this Association has as a result of this decision ceased to carry on its business as an Illinois corporation and retired to the more congenial environment of New York City; but if an institution of any kind, however useful it may seem to be, can not conduct its business in accordance with the law of Illinois, then this State is better without it. Chicago and Illinois are big enough to get along without these individuals and corporations whose grievances against the Supreme Court impel them to seek a change of air.

The same strong popular trend is shown in the opinion by Judge Phillips in the case of Fuller vs. Shedd, 161 Ill., 462. That case involved a question of ownership of the beds of inland non-navigable lakes.

The Supreme Court of the United States, notwithstanding the previous decisions of the Supreme Court of Illinois, in Trustees of Schools vs. Schroll, 120 Ill., 509, had decided that by the law of Illinois the shore owner upon such a lake took title to the bed of the lake, applying the same principle that the Supreme Court of this State probably somewhat injudiciously applied at an earlier day to the ownership of the bed of rivers whether navigable or not. But the Supreme Court held, title to such submerged lands was in the State.

In the course of his opinion, Judge Phillips used this language: "These cases cited are the only decisions with reference to boundary or riparian ownership of lakes which have heretofore been before this Court, and there is no conflict therein, and no reason exists why we should change the rule therein announced. On the contrary, aside from the principle of stare decisis, we should adhere to that rule. The policy of the State in recent years has been to stock its waters, both streams and lakes, with fish, as a means of giving cheap and valuable food to her citizens, and with this purpose regular appropriations and