June 24, 2019
Since my election to the court in 2004, I have been fortunate to witness a number of significant milestones in the history of the country, the state and the Supreme Court. This past year we marked the bicentennial of Illinois’ admission into the Union and the creation of our state’s judicial branch. 2015 saw the sesquicentennial of the end of the Civil War. In 2014, we rededicated the Supreme Court Building in Springfield, following completion of extensive renovations undertaken when the building passed the centennial of its completion.
The many speeches and ceremonies that accompanied these important events have provided all of us on the court with an opportunity to reflect on the long history that connects us to the generations of judges and lawyers who came before us. It is a path that leads directly back to the time of Lincoln and beyond.
Nearly two centuries stand between the present court and the Supreme Court Lincoln knew. When Lincoln was admitted to the Illinois bar in 1836, it would still be another 33 years before the first African-American was licensed to practice law in this state2 and 37 years until the first woman received her law license.3 It would be well over a century after those achievements before a person of color or a woman would become a member of the Illinois Supreme Court.4 The entire body of published case law occupied less than two volumes of the official reporter, and the Court’s first opinion of the 1836 term, Leigh v. Mason, was exactly one paragraph long.5
1This column is based on remarks I first delivered at the Peoria County Bar Association’s 111th Annual Lincoln Memorial Banquet, earlier this year.
|2Lloyd G. Wheeler, admitted in April of 1869.
|3Alta Hulett, admitted in 1873. Myra Bradwell passed the bar and was certified for admission in 1869, but her application was denied by the court “by reason of the disability imposed by [her] married condition.” Although Bradwell never reapplied, the court issued her a license, on its own motion, in 1891 “to right a previous wrong.”
|4The first African-American justice was Charles E. Freeman (1990), the first female justice, Mary Ann G. McMorrow (1992).
5It was an action to collect a debt. Plaintiffs prevailed in the trial court. The Supreme Court did not reach the merits. It reversed on the grounds that the justice of the peace who heard the case had no jurisdiction over the matter. The court apparently raised the issue sua sponte, under the still familiar principle that if a court has no jurisdiction of the subject matter, consent of the parties never can give it. Leigh v. Mason, 2 Ill. at 250 (1836).
Our rules of court were similarly brief. We had exactly 23 of them, the entire text of which took fewer than 4 printed pages to set out. And they were, in many respects, quite different than the rules we have now. Former Rule 2 is a good example. It set forth the order in which practitioners were to present their motions. Under the rule, the attorney general was always allowed to go first, but after that, the order of presentation was strictly by age, beginning with the oldest practitioner and ending with the youngest. I think those honored by the bar association as senior counselors would have liked the system very much.
Now, as in earlier days, the Supreme Court is responsible for numerous administrative responsibilities. One obligation we do not bear, but which the court in Lincoln’s early years was required to shoulder, was assisting the governor in approving legislative measures. The governor and the members of the court served on what was called the Council of Revision and reviewed all bills passed by the legislature before they became law. If a majority of the council members believed that a bill should not take effect, it was sent back to the legislature for reconsideration. Considering some of the legislative battles that have occurred in Springfield in recent years, I’m sure that most members of the court are pleased that evolving views of separation of powers have put that old system to rest.
Another marked difference between our court and the court of Lincoln’s day is that for a substantial period of time, members of the Supreme Court also served as trial judges in the circuit courts. That led to some awkward situations, for, inevitably, some of the cases tried by the justices would be appealed to the Supreme Court. Today, it is well established that a judge may not sit in review of a case over which he or she presided below. When Lincoln came to the bar, however, things were different. Remarkably, it was not at all unusual for a member of the court to participate in appellate review of his own trial court judgments. Sometimes the Justice who tried the case actually wrote the majority opinion on review. See, e.g., Favor v. Marlett, 6 Ill. 385 (1844). In other instances, where they were convinced they had ruled correctly, the justices who tried the case dissented, sometimes strenuously. In Seeley v. Peters, 10 Ill. 130 (1848), Justice Caton was so incensed by his colleague’s 10-page opinion reversing his judgment that he wrote a 21-page dissent justifying his position. Writing in his autobiography nearly 50 years later, Justice Caton apologized that the dissent had been “unpardonably long” and lamented that “some of its expressions were more pungent” than he wished they had been, but he insisted to the last that he had been right and his colleagues had been wrong. I think all of us on the court today, at one time or another, have felt the same way.
Practice under the old circuit system had some other peculiarities. As we have learned from the various ISBA programs on Lincoln the lawyer, many attorneys in the early days of Illinois followed the circuit judges as they moved from county seat to county seat to hold court. Abraham Lincoln practiced in the old 8th Circuit, over which his friend and colleague Judge David Davis presided. Judge Davis, who went on to serve on the United States Supreme Court, was extremely popular and something of a character. For example, it’s reported that he once, absent-mindedly, sentenced a young criminal defendant to serve seven years “in the state legislature.” Even then, that was probably considered cruel and unusual punishment.
In any case, back in the day, Lincoln and Davis would sometimes be out on the circuit together for months at a time. While Davis was a capable and conscientious judge, there were occasions when he was not disposed to take the bench. So what did he do? He simply handed his gavel over to Abe and told him to take over. This did not happen just once or twice. Some authorities estimate that Lincoln decided more than three hundred cases this way. Of course, there was absolutely no legal authority for Judge Davis’action, so we cannot properly add “judge” to the list of titles Lincoln held during his career. It is said, however, that Lincoln would only preside over a case where both parties consented. If that is true, then perhaps we can at least credit him and Judge Davis with being the founders of Illinois’ first system of court-annexed arbitration.
We must not be too harsh on Judge Davis for being unable to convene court each and every day he was out on the circuit. The circuit was large in size, spanning some 15 counties at its peak, and was known as the “mud circuit” due to its poor roads and primitive conditions. Judge Caton, author of the 21-page dissent I spoke of earlier, recalled that “[i]n passing from one county seat to another, the judges and lawyers always rode on horseback, with saddlebags.” This could not have been comfortable for Judge Davis - who was a very large guy - or his poor horse. This legal menagerie would often traverse uninhabited prairies which were ten to twenty miles or more across. According to Justice Caton’s description,
“all the settlers lived in cabins along the skirts of the timber, with enclosures in the adjoining prairies in which they cultivated fields, their stock ranging in the groves or grazing on the prairies. Nearly every cabin entertained travelers, who stopped for meals or to stay overnight. *** If [the traveler went] into the house soon, he might see the good lady pull from under the bed a bread-tray, which was kept constantly supplied with dough; and in a trice the biscuits would be molded and placed in the bake-pan; chickens were placed in the frying pan; the coffee pot was set to brewing; the table was set, and in an incredibly short time he was seated at the table with a meal before him ***.”
Justice Caton happened to find the fare delicious, at least in describing it in his memoirs 50 years after the fact. Others were less nostalgic, complaining that the accommodations were shoddy and the food was bad, with lawyers forced to sleep two to a bed and eight to a room.
Eventually, traveling the circuit by horseback gave way to passage by carriage and then by railcar. But it remained demanding.
Life for members of today’s court could not be more different. Before budget cuts, some of us actually made the trek to Springfield by plane. Now we all travel by car, but the highways are good, travel is quick, inconveniences are few, and we live in comfort, one justice per room. In reading the accounts of our predecessors, however, it is apparent that we may have lost something important.
One of the things about which new judges are routinely cautioned these days is how isolating the job can be. The longer we are on the bench, the more we tend to be cut off from everyday associations with other members of the bar. That was decidedly not the case during Lincoln’s time. Life on the circuit didn’t allow for it. When lawyers and judges roomed together, ate together, sat by the fire together in evenings trading stories, then worked together each day, they inevitably developed a special camaraderie, with a sense of community and of common purpose.
Today’s practice of law is so large, so dispersed geographically, and so specialized that we cannot hope to find common ground through shared experience the way the lawyers of Lincoln’s time did. Still, as I remind the new bar admittees each May and November, when we take the oath as an attorney, we all become Lincoln’s colleagues. As such, we have an obligation to treat one another as he treated those with whom he traveled the old Eighth Circuit. We must recognize, as he did, that lawyers and judges are partners in a joint enterprise committed to ensuring that the principles of American justice are honored. Truth, mutual respect, and fair dealing must be our guiding principles. And it is our responsibility to help the newest members of the bar find their way just as the established practitioners reached out to help each of us as we were starting out.
Looking back on his distinguished career after a long and successful life, Justice Caton observed:
So it was in Caton’s time – in the time of Lincoln. So it remains today.
“Fidelity to every trust, integrity and intelligence in the discharge of every duty [have characterized our profession], whether at the Bar or upon the Bench. *** And as we review the past, we may be justly proud of what the Bar has achieved. It has administered justice, preserved order and maintained the supremacy of the law. It has done more: it has been the guardian, under law, of all our liberties; it has furnished the teachers of all parties, and led the advance in all true civilization and progress. Run your eye over the roll of the great men of our state – Presidents, Senators, Governors, Members of Congress, Members of Cabinets, Ministers abroad, and soldiers – and take from the record the lawyers, and how few would be left!”
In 2018, the ISBA and the Illinois Judges Association and their respective foundations together with the cooperation of local bar associations throughout the state began an ambitious project: to place in every county courtroom in Illinois a copy of the Hesler photograph taken of Abraham Lincoln as he embarked upon his quest for the presidency in 1860.
Remarkably, those organizations completed that project with the placement of the portrait in the last of Illinois' 102 counties in December, 2018. Then, fittingly, they presented a copy to the Illinois Supreme Court in a brief but meaningful ceremony during the January 2019 Term of Court. The ceremony was led by Justice Michael Hyman and attended by state bar leaders and many judges who had participated in county presentations throughout the year.
That portrait now hangs in a position of prominence in the hallway outside the Supreme Courtroom on the second floor of our building, gazing upon a bust of Lincoln himself.
It is fitting that the portrait should be in our recently restored building in Springfield, not far from Lincoln’s former home, not far from his law office, and not far from the site of the farewell address he delivered when he left for the last time on his way to Washington, D.C. and the presidency. His simple, sincere message is one that has always moved and inspired me:
"My friends -- No one, not in my situation, can appreciate my feeling of sadness at this parting. To this place, and the kindness of these people, I owe everything. Here I have lived a quarter of a century, and have passed from a young to an old man. Here my children have been born, and one is buried. I now leave, not knowing when, or whether ever, I may return, with a task before me greater than that which rested upon Washington. Without the assistance of the Divine Being who ever attended him, I cannot succeed. With that assistance I cannot fail. Trusting in Him who can go with me, and remain with you and be everywhere for good, let us confidently hope that all will yet be well. To His care commending you, as I hope in your prayers you will commend me, I bid you an affectionate farewell."
When the Hesler photo was hung in the Supreme Court Building, I told the assembled group:
"We do this to honor the contributions of one of the finest lawyers ever admitted to practice before our court or any court in the United States. But more than that, we do it in the hope that it will help remind all those who pass through these halls now and in the future of the importance of service above self, reason over emotion, compassion rather than hatred, and understanding in place of prejudice.”
The Fourth of July is next week. It is a time for backyard barbeques and fireworks. But it is also a time to pause and consider the qualities that have enabled our nation to endure. As you begin your July 4th celebrations, I hope each of you will feel a renewed commitment to the profession and a sense of pride in what the members of the Illinois Bar, individually, and as a group, have accomplished. We are all colleagues of Lincoln, and I am confident that he would be proud of what we, together, have achieved for the profession, for Illinois and for the Union since he bade farewell to Billy Herndon and left his law practice and his community in Springfield so many years ago.