Nashville daily patriot. [volume] (Nashville, Tenn.) 1855-1857, 1856-01-02
Law Reform.


Ie7''lesSee and TO RefoTH1 the code OF practice,
DELIVERED IN THE SENATE, DEC. l3, 1855.
The Senate being in Committee Of the Whole,
Mr.. FLETCHER said
Ma CHAIRMAN-My objections to the bill un
der consideration are so numerous, and my dsap-
probation of it so strong, that feel called upon
not only to record my vote against it, but 70 point
out It's fatal errors and warn my conntrymen of its
dangerous tendencies. True, this system Of re-
form Gas it is called by its irends is not Wild
radical and revolutionary as that heretofore pro-
posed Ia this State yet il is sufficiently TO make
it exceedingly Objectionable, and to cali forth the
closest scrutiny into its provisions.
As the Syren song of Law Reform" has been
sung throughout the State by politicians and news
papers Who SEEK by appealing TO the prejudices Of
the people, 10 obtain an ephemeral popularity, it
may not be amiss glance hastily at the different
systems proposed. And although modern Law
Reform is exceedingly undefnabIe and chaotic in
its nature, yet has assumed three distinct shapes
in Tennessee. First, the elaborate system propos-
ed two years ago to this General Assembly, and re-
jected Secondly the visionary and extremely
radical system or idea Of Reform advocated by our
Governor in his message TO the present Legisla-
ture. And lastly, the bill under consideration.
The successful career Of Gov. johnson rs q poll.
tican, and his great energy and power in enforcing
his doctrines, as well as his high official position
ent,le his views to the most serious consideration.
These views be hes expressed in his message, and
invoked this Legislature to act upon them, and
carry them out Hence it becomes not only the
right but the duty Of every Senator TO scrutiniZe
them closely and discuss them freely. / sh i'll do
so regardless of consequences. | am aware of the
extreme sensitiVeness Of gentlemen on the other
side Of the chamber, whenever the Governor is al
Iuded to in any other terms than those of common
dation. / am aware that if touch the hem OF his
official robes, the cry will be, the Philistines be
upon thee" but. nevertheless, shall proceed to
the discharge Of what conceive TO be duty in a
manner respectful TO the Governor, against whom,
personally, have not the least trace Of uukind
feeling.
Our Governors idea of Reform may be gathered
from few brief extracts from bis message. As
Stunning as the basis Of his system inestimable
Bill OF Rights, he quotes the words, Right and
Justice is 10 be administered without sale, denial
or delays" and in bis comments most clearly insists
that the Courts should be open and that litigant
should enter without cents cost, and have his
relief Instantly, without denial or moments hes~
tation, in any manner of case whatever. There
should be no such thing as preparing a cause for
hearing. Justice should be done at once The
skiIfulness Of counsel shall be wholly unnecessary
The pe rites themselves should be examined, and
state their cases with the most rustic simplicity. 1t
would seem Mr.. Chairman, that a very important
clause of the Bill of Rights has either escaped the
observation of the Governor, or is considered by
him as Of 10 Importance whatever. The Ian
guage of the Bill of Rights is, that the injured par
ty shall have remedy by due OF Tar, with
out sale, denial or delay." Those important and
indispensable words, "by due course Of taU," the
Governor overloOks entirely, or at least totally dis
regards them. To say that he does not understand
their meaning and import, would provoke upon me
the maledictions of his friends in this chamber and
would be placing too low an estimate upon the
legal knowledge of the Governor of great State.
/ must therefore, content myself by supposng that
they did not attract his attention. by due course
of law refers to that great code of practice in the
Courts which has been fOstered, improved and ma.
tured by enlightened sages and illustrious jurst
from the foundation Of civilized society down to the
present time. Thus il is, that our Bill Of Rights
instead of ignoring our code of practice expressly
refers 10 il and points il out as the means by which
an injury shall be remedied without SALE denial,
or delay" And the time never has been, nor ever
can be, that Courts Can administer justice without
general rules of practice governing the prepare
ton and trial of causes The complaining party
must state bis case fully and with precision, and
the party complained of must state his defence in
like manner, and technical rules must be entorceI
70 compel them 10 do SO, otherwise one OF the
parties will conceal and suppress material facts up
on which he relies for success, and thus take his
adversary by surprise; 10 prevent which, the
strictest rules have always been found necessary.
But the message next treats of Equity" and
the administration Of Equity. And the views
here expressed are so unique and singuarly gro
tesque that but for the dignity of the document and
the gravity Of the subject one would be tempted
to indulge in levity The message evidently con
templates that Equity is, or at least should be,
administered without being embarrassed or restrain
ed by any general rules whatever. Hear it:
Justice-the constant and perpetual disDosi-
tioH TO render every man his DUE Equity is
SYNONYMOUS with Justice"
Again: Make the equity of the case the law
Of the case" Let the law and equity OF the case
be heard by the court and jury at the same time"
-"Let all restraints and barriers be removed, land
the cause tried upon the naked merits involved,
and thereby administer right and Justice to the
contending parties aud let them 60 hence without
delay"
Angels and ministers of grace, defend US /! +! 1t
is here proposed, for the first time perhaps in con
sttutional government, that all restraints and bar
riers shall be removed from courts and juries The
court and jury together shall constitute an Auto
crat or Grand Vizier, who shall administer justice
% unrestrained by law all its restraints and bar
TieTs being removed They are TO decide accord
ing to their oun visCs of equity, without regard to
established rules, decisions or legal enactments.
Throw physic 10 the dogs" is a memorable ex-
preston, but our Governor has the honor OF first
III
lion OF equity throughout the world, wherever
courts Of equity exist controlled by settled rules
of jurisprudence and practice-as well settled, as
srbItrary and technical as the administration OF
law-and woe TO that people who shall dispense
with general rules and intrust their rights TO the
whims and caprces of Judges and juries, having
power TO decide, not according to law, but accord
ing to their pleasure. Sir, do not misunderstand
the message. II the proposition to remove "all
means anything, il means just what l understand
it to mean. Aud this Sir is the law reform pro-
posed in the message. 1t may be summed up
thus: We are to have grand consolidated court,
which shall be free court, open to all, aud into
which the itgant shall step, state his case receive
instant justice, and 60 his way rejoicing. Law
books shall be banished-no such restraints and
BARR ers" shall be admitted into said court. The
Judge and jury shall have "a constant and per
petual disposition to render every man bis dus,
and they shall decide according to this "disposi-
ton" There shall be no delay-not moment
no sale-justice shall cost nothing. There shall be
no denial-that is the courts shall not inquire how
the case came there, nor hon the demand is made,
but they shall do justice and ask no questions.
Aud nobody will complain Of judges, lawyers or
Jurors. This, Sir, is the millennial court that we
are soon to havei Would to God, that this were
something more than q dream But, 50 il is, un-
Gil all men become perfect, this Utopan theory can
never be reduced TO practice.
have thus Mr.. Chairman, briefly reviewed the
Law Reform doctrines Of the Governors message.
Time viii not allow me now, Sir, TO enter into q
critical analysis Of the huge BelOrm bill of the last
session. Indeed, it would be scarcely in order.
cspt part Of the history Of the Reform movement
in this State Il is sufficient 70 state, that il is
elaborate attempt TO compile an entirely new code
Of practice, and to lay down an entirely new system
oF proceeding in the courts Of Justice. The most
remarkable feature Ia the bill is, that although il
contains nearly two hundred sections, al processing
90 lay down rules for the government Of the courts,
yet from beginning 10 end, il seeks 10 establish