PART II.

ADDRESSES

DELIVERED BEFORE THE ILLINOIS STATE BAR ASSOCIATION AT THE TWENTY-EIGHTH ANNUAL MEETING, BLOOMINGTON, MAY 25 AND 26, 1904.

PRESIDENT'S ANNUAL ADDRESS,

DELIVERED BEFORE THE ILLINOIS STATE BAR ASSOCIATION,

AT BLOOMINGTON, MAY 25, 1904.

CHARLES L. CAPEN, OF BLOOMINGTON.

The carliest and best definition of jurisprudence is, it is the knowledge of things divine and human, the science of the just and the unjust. As to civil courts, after centuries of bloodshed and oppression, it is established they have nothing to do with things divine and their jurisdiction does not extend to the inculcation of positive morality except to see their judgments do not contravene its teachings. said by Amos

As

A man may be a bad husband, a bad father, a bad guardian, withcut coming in conflict with the rules of a single law. He may be an extortionate landlord, a wasteful tenant, a hard dealer, an unreliable tradesman, and yet the legal machinery of the country may be quite powerless to stimulate or to chastise him. He may be, furthermore, a self-seeking politician, an unscrupulous demagogue, or an indolent aristocrat and yet satisfy to the utmost the claims of the law upon hire."

It is all important this limitation be observed by our courts. If they undertake to do more than they should, it will be universally true they will accomplish less; and so, not only fail in the particular instance, but impair confidence and respect. They have scope enough in their own province to use to the full the powers of the greatest intellect and the product of the deepest learning, for upon them in the last analysis depend the property, liberty, reputation and safety of every citizen and the very existence of the state-indeed, "the law is the state." To give an example, it is not too much to say had Chief Justice Marshall decided

PRESIDENT'S ANNUAL ADDRESS.

the great constitutional questions before him contrary to what he did, and as very many insisted he should, our government could not have endured, and, had it lasted so long, would have been wrecked in the civil war.

As to substantive law it is a contradiction in terms to say it can be created; it is merely a correlation of the nature of things, a growth of the wisdom of the ages, the perfect reason of the wisdom of men, as developed by human experience and needs. The judge cannot make it: whatever his private opinion may be, he is bound to lay that opinion aside, and decree as laid down for him; otherwise we should have not only a government of men and not of laws, but mere confusion. As Confucius says, "if he vary but a hair's breadth it is no longer law." No greater calamity can fall upon a community than to have a judge who, in framing his judgments, does not depend upon and strictly follow books rather than his own head: or one who, when in the change of circumstances a new question arises, does not reach his conclusions through the application of the eternal doctrines of the common law. This is ever a hard lesson to learn. Burke said the ignis fatuus of the Anglo-Saxon race is its belief in the omnipotence of legislation-the opinion that if any thing is not satisfactory, a new statute will make it so. Lawyers, at least, know an evil sought to be so remedied is not only apt to fail of being eradicated but the new measure will develop many other troubles not dreamed of by the lawmakers. President Wood, in his able address to our Association a few years since, demonstrated we have every needed law to suppress and control illegal trusts and combinations. The fact that, while public interest and demands have not abated, attempts at legislation of this kind have almost ceased, demonstrates the people realize this truth. Justice Bradley has declared our federal constitution "is amply sufficient for the protection of the people if it is fairly interpreted and faithfully enforced."