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SPECIAL ADDRESS.

SPECIAL ADDRESS.

THE PRACTICE COMMISSION.

WILLIAM L. GROSS, OF SPRINGFIELD.

The Legislature of Illinois, among its other recent deliverances, has solemnly resolved that there exists "a public demand for a revision of the practice and procedure in our courts of justice.” How this fact became known to the Legislature, does not appear; but for the purposes of this occasion let it be assumed, that that body was sufficiently advised, and that its declaration was well founded in fact.

To meet this demand a “Commission” is created by joint resolution of the two houses. Whether this remedy is indicated by the symptoms disclosed in diagnosis; and again, whether remedy by “Commission" can reasonably be expected to effect a cure of the disease, are questions which we have a right, perhaps, to assume the legislature duly considered before taking the action it did; and yet, before allowing ourselves to become too thoroughly enthused, it might be well to remember the fate of the work tendered by a former revision commission by joint resolution. It will suffice to say, that the learning, industry, and labor of the commissioners and the generally commendable character of their report, could not secure its adoption, or save it from oblivion. That "Commission" undertook to do what this proposed "Com

WILLIAM L. GROSS.

mission" is charged with doing,—revise the law governing practice and procedure in our Courts; and an examination of the bills it reported entitled “Courts of Record” and “Practice in Courts of Record” will show, or may be said to furnish, some justification for the present attempt to have done by “Commission” that which is never done by committee during legislative session.

The unique features of this proposed commission are, first —that the commissioners are to be nominated-one by the Appellate Court, first district; one by the Chicago Bar Association; one by the Supreme Court; one by this Association; and one by the Governor—the two legal estates, the bench and the bar, sharing responsibility with the chief executive; second, that they can not be holders of a public office; and third, that the commissioners, all lawyers of presumed learning and experience, shall serve the public without compensation.

Too much cannot be said in commendation of the distribution of the nominating power, and the personnel of the commission would undoubtedly be all that could be desired, but for the neutralizing effect of the demand for gratuitous service. Lawyers are generous and public spirited-proverbially so, devoting no small share of their time to advance and promote what appears to be for the public weal; and this they do from a variety of motives not now necessary to consider. But if the Legislature is right about it-if a public demand exists, calling for the exercise of the special knowledge, time and experience of competent lawyers, extending over a period of eighteen months, the public ought to be as ready to pay for that as it is to pay for the legislative, judicial or other special services it requires. The lawyer is given no special privilege or immunity; he gets nothing he has not fitted himself for and does not deserve and earn, and he carries his share of the common public burdens. Competent men may possibly be found who will devote themselves to the labors of the pro

SPECIAL ADDRESS.

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posed commission; they may look upon the honor of the position as some compensation or they may be imbued with the spirit of the missionary reformer, who counts no cost if he can but advance “the cause.” If this declared "public demand” is real, and good service is required to satisfy it, as this resolution indicates, then, in view of the financial condition of the State, to ask the commission to “serve without salary, fee or compensation of any kind," must be characterized as an exhibition of unjustifiable legislative cowardice and parsimony. It is fundamental—the citizen's private property may not be taken for public use, without just compensation; and this is certainly in effect an attempt by the State to take the private property of five estimable citizens—their time, professional skill and ability-for a public purpose, to satisfy a public demand, with a denial of compensation. I have called it an exhibition of legislative cowardice; may it not also be called a legislative denial of common justice and fair dealing, so offensive in form as to deserve our righteous condemnation. Offensive, because it assumes that the State can not, or ought not, to pay its way; an assumption as false in fact as it is in theory.

Nor is this all: many of us appreciate appreciation; the courteous acknowledgment of gratuitous service has robbed us of many a well earned fee, and we were rather glad of the larceny; and when bread is asked us, we do not answer with a stone, realizing, that he who would perpetuate his name to posterity, must embalm it in acts of charity.

But this resolution neither tenders an acknowledgment, nor craves a charity-it demands, "a commission is hereby constituted

;" And the command is, go do this thing; meet this public demand; diligently compare

and examine all the laws of the State

relating to practice and procedure in our courts;" “Hold at least one sitting open to members of the bar in each Appellate Court district;" "print and distribute

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WILLIAM L. GROSS.

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to the members of the bar of the State a preliminary report, inviting criticism thereon;" "and submit to the Governor in the form of a report for action by the General Assembly such amendments, revisions, additions and corrections, and such compilations thereof, as you shall deem necessary.” Two of the five must reside in Cook county; two outside that county, and one floater; but you must close your offices, abandon your own business, travel hither and yon across the State, hold your meetings where, when and as you can get together for public hearing and conference and work, advance your own money for expenses, do your patient, painstaking, technical work, and at the end of eighteen months and when you have filed your final report, you will each be permitted to draw from the public treasury $300 for expenses, and to return to your abandoned private business with empty pockets, and without even the poor consolation of a "well done, good and faithful servant." Your wife will doubtless dutifully meet you with open arms; your children run to greet you with innocent ardor; and the family meeting will be a joyous one; but it will be the joy of the father when, afar off, he saw his prodigal son dejected, humiliated, hungry and in rags, returning from his foolish wanderings. But with this difference—there will be no feasting, nor killing of the fatted calf; the larder will be empty and there will be no fatted calf to kill.

And when all this time has been spent and this intelligent labor bestowed, (assuming that competent commission can be formed that will do it), what assurance is there that the result will be accepted by the Legislature? None whatever! On the contrary, it may safely be asserted, based on the experiences of the past, that the commissioners' report, however excellent in character it may be, will not receive at the hands of an Illinois Legislature, any consideration whatever. Its doom is already sealed, and its death predestined before birth. The Forty-second General Assembly will be a political—not a con

a

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siderate law-making body; and the exhausted poverty-stricken commissioners bearing in their wasted arms their bantling, will dance attendance in vain at closed committee rooms, and wear themselves out in weary waiting for an opportunity that will never come to present, explain and advocate the adoption of their "amendments, revisions, additions and corrections." Their work will have cost the State nothing; it will, therefore, be worth nothing. The putative fathers of the report, are forbidden to belong to the virile, forceful, office holding class even a notary public is incompetent; they will be without power, influence, vote or patronage, and will deserve the contempt in which they and their work will inevitably be held.

Pessimistic? Yes; but the pessimism of cold fact, reason, experience and inexorable logic.

There is an ample field, abundant high grade work and a pressing necessity, for a Practice Commission, and which might well be selected substantially as provided in this resolution; but it should go forth on its pilgrimage clothed in a mantle of law, and provided with the means of respectable self-support, not only for the time consumed in its work and in preparing its report, but during the sitting of the Legislature while such report may be under consideration. The knowledge, professional skill, experience and literary ability required to "diligently compare and examine all the laws of the State relating to practice and procedure in our courts," and to report "such amendments, revisions, additions and corrections, and such compilation thereof as may be necessary," and thus to systematize, simplify and logically arrange our present system of pleading, practice and procedure, or to tender another and a better system, and also to secure its adoption, is as rare as it will be found difficult to engage. But the talent can be found and secured, the Legislature can be required to provide adequate means, the work can be accomplished, and the end desired attained, if the bar of this State cares to have it done. If this Association and the Chicago Association will

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