NECESSITY FOR REVISION OF OUR LAWS, BOTH CONSTITUTIONAL AND STATUTORY.

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JAMES H. MALONE.

The failure of this Association to have enacted into laws through the Legislature, a single one of its many recommendations, has become a matter of jest. I have repeatedly heard it said, "If you wish to doom any proposed legislation to defeat in advance, then have it indorsed by the State Bar Association, and its fate is at once sealed." Nevertheless, for one, I am earnestly in favor of pressing the views of this Association, both upon the Legislature and the people at large. Failure in the past to accomplish any change in our law as recommended by this body, I believe, is to be attributed, first, to the fact that the changes proposed have been, in the main, of the most fragmentary character; whereas, in my opinion, we need a thorough revision, not only of the Constitution, the fundamental law, but also a thorough revision of our Code, from the title-page to, and including, the index; and, second, almost without an exception, this Association has merely contented itself with passing resolutions, and, though in a few instances committees have been appointed, the members of these committees have, as a rule, given no attention whatever to the duties imposed upon them. And here I will observe that, in my opinion, the lawyers of Tennessee, as a body, have not exerted that influence and power in molding the legislation of the State which their learning and position would entitle them to exert. In other States-as, for instance, our neighbor, Mississippi-the bar has from time immemorial dominated the entire legislation of the State. In doing this, the lawyers of that State have but performed their plain duty, and, so far from this course having excited jealousy on the part of any other vocation or profession, the reverse is the case, and the people at large are perfectly

content, and wisely accept the services of their lawyers, believing that, of all classes, they are best fitted, from their learning and training, to frame the jurisprudence of the State for the best interests of all concerned.

In this respect the profession in Tennessee is sadly deficient. As a body, we have abdicated the duties which we owe to our State in shaping legislation. While a few first-class lawyers are usually to be found in our Legislature, yet these form the exception and not the rule. The average lawyer in either house belongs to the cross-roads or razor-back variety, and, I believe, generally takes pleasure in posing as the assumed "friend of the people," and, I may add, will almost certainly oppose any recommendation of this body.

It is now well known that Governor Turney has modified his views to such an extent that, in a special message to the present Legislature, he recommended the calling of a constitutional convention to revise our Constitution. This is a great gain. By earnest and concerted action on the part of the lawyers of the State, the personnel of the next Legislature could easily be brought to a higher standard, so as to induce that body to realize the importance of the situation and act accordingly.

As to the changes needed in our Constitution, all agree that there is wide room for improvement, and yet, when we come to the details, there will be, of course, a great diversity of opinion. Still this should not deter us from undertaking the task; and, while I feel certain that some will differ with me as to the changes which in my opinion should be made, while others. may favor some changes which I would not consider expedient, yet I will venture to suggest my own views upon this important subject.

(1) Under our present Constitution, no man who has read a newspaper, and formed and expressed an opinion with regard to any given matter in litigation, is a competent juror in this State. In 1870 the Legislature passed a law remedying this defeet, which law was promptly declared unconstitutional. Laws of a like character have been passed and sustained in Illinois, New York, Michigan, and, in short, in most of the other progressive States, and these laws have been sustained in those States, and also by the Supreme Court of the United States,

notably in the anarchist case. What is the result under our present Constitution? In every county in the State where there is great excitement and newspaper notoriety about the facts of a case, and especially where feeling runs high, scores and hundreds of citizens are summoned as jurors; and to the countryman living five, ten, fifteen, or twenty miles from the court-house, and dependent upon his labor for his meat and bread, this is a very great burden. To the tax-payer it is equally burdensome; but, worse than all, the whole intelligence of the county is rejected, and the dark corners of the country and the gutters of the city, are raked over as with a fine comb in order to scrape up men who either never read or hear any thing or who cannot read, or who, if they do read or hear, have not sufficient intelligence to form an opinion. On this principle, the most ignorant and degraded negro in the rural districts is a preferable juror to the most accomplished citizen. The result is, that intelligence and probity are set aside, and the administration of the laws placed in the hands of the ignorant, the debased, and the vicious, and that, too, at a heavy cost in dollars and cents.

(2) We have clerks of courts receiving in the way of fees $15,000 a year and over, presided over by eminent judges who get a salary of $2,500. Other offices, such as trustees, registers, and assessors, pay upon the same extravagant basis, yet taxation upon real estate and upon corporations and mercantile pursuits is extremely onerous, and many of our farmers in the country are scarcely able to make buckle and tongue meet.

The grand jury of Shelby recently reported that the trustee was paid $17,500 to collect the taxes of that county. Your Supreme Judges receive $3,500 per annum, out of which they must pay all traveling expenses, and they are for the most of the time on the road. The assessor of Shelby has just filed his bill for going through the perfunctory duty in a great measure of copying the previous year's assessment rolls, and his bill ranges between $8,400 and $8,500, while your Governor gets $4,000 a year. In our large counties the perquisites of clerks and masters have become so great, taken with the necessity of their appointment instead of election by the people, that great scandal has been brought upon the courts in certain sections.

If all their fees in the large counties were collected during their term of six years, it is believed they would get from $20,000 to $25,000 per annum. Do with all these servants as the United States and the States of New York, Pennsylvania, Indiana, Colorado, and others do-that is, give them good salaries, sufficient and competent assistants, and pay them, and let the overplus of these fees flow into the public treasury, to the relief of the people. By so doing, you will not only save the people, but you will eliminate a corruption fund which undermines the very politics of the country. Such a law was passed in 1879, when Judge Clapp and Judge Snodgrass were in the Legislature, but was promptly declared unconstitutional. Many believe that no fee bill can be passed under the present Constitution. As to this, however, I differ, but insist that this question ought to be put to rest by a provision in the Constitution.

(3) Under the present Constitution, our Supreme Court junkets around from Knoxville to Nashville, and then to Jackson, the judges separated from their families, put to great cost for traveling and boarding expenses, and without any facilities at hand to dispose of the cases. For instance, at Jackson, where there is no law library, the court is put to the necessity of guessing what the law ought to be. All agree that the court should sit permanently at Nashville, to which place they could remove their families, and there have the benefit of the State library. The salary of the judges should be fixed by the Constitution itself, at not less than $5,000 a year, so as to make the judges independent on the one hand, and, on the other hand, so as to command the best talent of the State.

(4) The Constitution should be changed so as to have the criminal docket from each county called through at each term -that is, three times a year; whereas, the docket now is only called once each year. This would save thousands of dollars to the counties and to the State in the simple matter of jail fees. For example, every criminal case from the Western Division, tried after April, and which is appealed, cannot come up for trial in the Supreme Court until the succeeding April, and, as the great majority of criminals appealing are paupers, the State and counties are the losers to the extent of their board; and, in the next place, it is to the interest both of the

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State and the defendant that a speedy trial should be had, not only in the lower court, but in the Supreme Court.

(5) Counties containing large cities should be allowed to supplement the salaries paid the judges therein by the State. This would only affect these counties. As it is, the salary of $2,500 is wholly inadequate, and we have to plead with our lawyers to become judges, for it means a great pecuniary sacrifice to any first-class lawyer. The people of Shelby paid its judges an additional salary until the Supreme Court decided the act of the County Court unauthorized.

(6) It is well known that no provision is made for the gubernatorial succession in certain contingencies, and but a short time since, when fears were entertained that our present honored Governor would not recover from a severe illness, just preceding his inauguration, great doubts were entertained that a state of anarchy and confusion would ensue if the smoldering embers of the recent political struggle were fanned into flames by mischievous politicians. Happily, his Excellency survived, and, though the Legislature passed a law to cover the case, yet the Governor felt constrained to veto the act. Here is a pressing call for a change or addition to the Constitution.

(7) The country people in Shelby County are clamorous for a "no fence" law, and any intelligent man who has studied the subject, or has had any experience, will tell you that, with our decreasing forests and increasing open lands, the burden of keeping up fences is well-nigh intolerable. And yet it is believed that no law can be passed giving them relief, unless the same law is made to apply to every other county in the State. If you go to some of the counties of East Tennessee, where a large part of the country lay in the woods, not to say mountains, you would almost be mobbed if you were to propose a "no fence" law. Manifestly, the Constitution ought to be such as to admit of legislation in this respect that would meet the wants of the people in the different counties. Such relief cannot be had under the present Constitution.

(8) It is said that the roads of a country are indicative of the civilization which prevails among its people, and all will agree that we are far behind in respect of public roads. The great difficulty which meets us is that no law can be passed for