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[Nota.—That the gentlemen with whom I am associated in the practice of the law should not, in any
way, be criticised by reason of this publication, and that none of the judges need be prejudiced against them on this account, it is but just to them for me to state that none of them had any knowledge whatever of the preparation of this article.-C. L. B.]
In 1870 the people of Illinois adopted a new constitution, "in order to form a more perfect government, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity.” And, to accomplish these results, the powers of the government werc divided into “three distinct departments,” with provisions under which men should be hired to administer the powers of each. It was also provided that the hired men of one department should not exercise any power properly belonging to either of the others, except as expressly directed or permitted.
The convention which formed this new constitution was in session fourteen weeks. The provisions calculated to attain the “more perfect government” were proposed, referred to a committee, debated, referred back to the main body, again debated, again re-committed and finally enrolled. Any one who examines the lengthy proceedings and debates of this convention must be convinced that it consisted of able and conscientious citizens, who had the welfare of the whole common people at heart. If the hired men of the three departments of the State, who now possess the powers conferred on them by the common people, were better acquainted with this constitution and the proceedings of convention which formed it, they would better understand the obligations of their oaths of office, and the general welfare might be promoted without a resort to anarchism, strikes and bomb throwing, as a means of securing redress, and a toleration of coal conspiracies, railway pools and extortions on the other, concentrating the wealth of the nation in the hands of a few at the expense of the many.
Early in the proceedings of the convention Mr. Goodell said:
Under the adıninistration of the laws of this State, I say here, before this conrention, the people of Illinois, in my judgment, do not get their rights freely. A poor man can not get his rights; he is not able to purchase them.
Another proposition is that the people ought to have their rights promptly, without delay in the operation of our judicial system. I have had some experience as a business man under the laws of the State, and I say here, that if I had a good straight claim against a neighbor of mine, who had the disposition and the means to resist, and fight with legal weapons against payment, I would rather give up a claim for $500 than go into the courts in my district to collect that claim.
I could make more than that amount of money in attending to my own legitimate business before I could collect the claim. We can neither get our rights freely nor promptly.
Now, sir, what are the great interests of this State? I claim, sir, that the great interests of the people of this State are, first, the agricultural, then mechanics, and then, if you please, mining; for if it is not the third interest in the State now, it soon will be. Now, sir, when I look about me and observe the composition of the mem
bers of this convention what do I see? I see that fifty or sixty members of this convention are lawyers. I am not saying anything against lawyers; they are just as good as laboring men if they behave as well—if they are honest.
The question that I want to get :i is this: whether the great interests of the people—the whole people of the Staie-are in unison with the profession of a majority of the members of this convention? Will members of this convention permit the judiciary of this State to be so reformed, remodeled and improved as to meet the demands of the people of this State?
It is with reference to this question that I have offered this resolution, to which I call the attention of this house. I tell you, Mr. President, that the laborer, the honest, hard fisted laborer, the farmer, the inechanic and the miner, the poor men of the State, require protection. The wealthy, the strong, do not require the protection of the law. I stand here as a representative of the laboring classes of the State and I wish to see their interests protected.
The resolution introduced by this member, passed through the usual routine, was Snally adopted and now appears in the constitution in the following form:
Every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, property or reputation; he ought to obtain by law, right and justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay.
It is now sixteen years since that provision was adopted, and I ask the common people of this State if, during these sixteen years, rights have been secured more freely, or with less expense than previous to 1870? Or, if to-day any one has a “good, straight claim against a neighbor who has the disposition and means to resist and fight with legal weapons against payment,” he can afford to enter into a legal contest? Is it not safe to say that at the present time the “ remedy in the laws” is less certain than formerly; that right and justice are not free; that they can be secured, if at all, only at great expense and after long and tedious delays? Questions of form, pleading, practice or construction, have, in very many cases, crowded out the merits of the case and technical points have multiplied. Under the guise of construction courts have made and unmade laws, until a judicial oligarchy has been created, and hired men, who take oath to support the constitution, assume to construe away or ignore their creator. So uncertain has become the construction which may be placed upon a legislative act by the judicial department that the passage of a law does not, of itself, command respect, until its supposed legality-osten in a made up and bogus case—has received the judicial sanction.
This constitutional guaranty of a certain remedy existed in substantially the same form in the constitutions of 1818 and 1848. As it appeared in the constitution of 184, it served as an authority in two cases, as follows:
1. Wilson v. McKenna, 52 Ill. 48, the court said:
That provision of the general revenue law has long remained a dead letter upon the statute book, and is not considered of any validity, the effect of it being to compel a man to buy justice. This no man can be compelled to do under our organic law. By that it is declared, that every person in this State ought to obtain right and justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws. Should justice be denied to him who has not wherewithal to pay for it? The conditions imposed by this act deprive a poor man of justice, and have no sanction in the constitution.
In Reed v. Taylor, 56 Ill. 292, for the same reason the court decided that a requirement, in an act, that redemption money and interest should be paid as a condition precedent to questioning the validity of a tax deed must be held to be nugatory.
The first of these cases was decided in 1869, and the second in 1870; but I have not been able to find that these excellent precedents have been followed in any case since the latter date.
Not long ago a case was decided by the Supreme Court which contains, in my judgment, a shocking commentary on our so-called administration of justice, and well illustrates how the abilities of the officers of the greatest department of our government are perverted to the useless solution of such technical objections or exceptions as may be discovered by sharp lawyers.
If two persons have litigated a matter in the trial court and its judgment is appealed from, the natural supposition of common people would be that the functions of this governmental department, in reviewing the appeal, were to consider the right and justice of the subject-matter of the controversy and decide accordinzly; but the decision now referred to indicates that the hired men of the judicial department care little for right, justice or merit.
A judgment of ejectment had been entered against a man named Martin, and an appeal from this judgment was taken to this debating society of legal technology. Among other things, Martin claimed that the judgment was wrong because the proof did not show title in the plaintiffs and that it did not warrant such a judgment in favor of the plaintiff--two questions affecting the vitals of the case.
Clearly this Martin had the constitutional right, in his appeal, to have determined whether he had been legally deprived of his property or not, but our custodians of the remedy in the laws with its so called free, complete and prompt right and justice, took another view of the matter, having discovered a microscopic technical point.
The record in the case did not show that the lawyer for Martin had excepted to the finding of the trial court in technical manner and form, although there was a recital inserted by the clerk of the court that such an exception was, in fact, taken.
The court said (Martin v. Foulke, 114 Ill. 208): In the view we take of this case it is unnecessary to inquire whether any of the above errors are well assigned or not.
The position of appellants, as we understand it is this: that if the court, upon the trial of a cause, makes an improper ruling against a party, to which no exception is taken, he may, nevertheless, on appeal, assign for error the improper ruling; and if the opposite party joins in error, the only inquiry then will be, whether, as a matter of fact, the error occurred, and, if it did, the complaining party may avail himself of it precisely in the same way and to the same extent as if the proper exception had been taken. Whatever may be the rule in this respect elsewhere, it certainly can not be the law here. The reports of this State abound with instances of erroneous rulings by trial courts which this court has uniformly refused to consider, on the ground no exceptions were taken to them; in all of which, except in a case now and then omitted through inadvertence, there was a joinder in error.
Whether the failure in stating of the exception at the proper time and place was the mistake of the laywer, or clerk of the court, does not appear; but it is apparent that such mistake was sufficient to deprive the unfortunate Martin of all opportunity to be heard, and amounted to a plain and unwarranted denial of right and justice. The effect of affirming the judgment of the trial court on such a technical ground as that expressed in the opinion, was that Martin should be deprived of his property, whether the proof warranted the judgment or not, and solely because of a formal mistake of the lawyer or clerk.
That practice in the administration of the judicial department has abounded with uncertainties, technicalities, delays and great expense, bas long been known to the legal profession, and it has been experienced by many who have sought for redress through the laws only to meet with disappointment. But that the Supreme Court has “uniformly refused to consider” the erroneous rulings of trial courts, merely because of some stupid mistake of form, and which could not affect the justice, substance or mer