Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-09-28
OUR JUDICIARY SYSTEM.
Its Errors and ImDerfectiOns.
Reform Demanded-What Shall
Itbe?

: nominated the radical errors of tn
times, renders discussion of the fallac'
of any case of action or of any pre-
, established opinion particularly unfor
tunate. There is always number o
puny whipSters, who, for a penny
sheet, address themselves to Whateyel
may be in hand to follow the popular
current; and have pursued with suct
assiduity their calling, and in so circumS
scribed manner, that readers are wells
nigh gorged to a surfeit. The loss of an
attentive public ear by this continual
drumming upon an empty head, is most
unfortunate when questions Of sufficient
moment for consideration are brough.
before them, as with a preAestablished
opinion as to all innovation, the public is
prone with its customary absence of
thought to class all ASA llts upon their
conduct, their institutions, or their laws
or customs, as emanating from the same
source, and from one equally as desti>
tute of mental labor as any production of
their own. Material influences control
the totality of popular action, but with
individuals the law is somewhat differ
ent. Whoever will address themselves
to the directing of popular change, must
make the development of their material
influences the criterion of the innovation
they advocate, in whatever form it may
be. No individual can create a revolu~
ton Of opinion, for the direction will be
controlled by the physical phenomena Of
| a time but whenever material change
produces corresponding movement in
the tone of thought, thinking discern,
ment can anticipate the masses and d.
rect the popular flow.
Institutions of whatever character are
indicative of the temper and tone of the
period of their creation, rather than that
of their adoption; and though often I'M
suited to the time of their adoption, a
correcting change is almost universally
retarded by the superstitious awe with
which whatever is established is regar~
ded. A clinging to such a line of
thought is the characteristic feature of
ancient wisdom, and that misapplied an
cient wisdom an incubus which warps
and diseases whole body polite.
1t is not possible to urge the wisdom
and an imitation of other times without
total disregard of the real demands Of
period, and it is in almost every in-
stance made the means Of saddling
nation, or a community with laws or
customs which are entirely foreign to
what utility would demand. Not uns
frequently is it true that, being solely
the growth of other times, they become
Intellectual before they are fully estab-
lished. The pulse thrOb Of single pes
riod is the only criterion of its own de-
mand; kmechanical age will produce
mechanical thought, and only intitutions
founded in utility can answer its exac-
tons.
We have thus promised what we are
to say, as we conceive that the principles
suggested have an intimate bearing
upon the subject before US; and if we are
successful in making our objections to
that subject tenable, the application will
be apparent.
Our courts and their system of proceed
ure is what we desire to consider, and to
indicate some of the errors and imperfec.
tions that We believe to exist in them.
Their Influences are 30 wide spread, ope'
rating upon every institution, domestic
monetary or political, that continuance
of any evil must necessarily influence our
material prosperity.
The system of judicial procedure in
present use, though originally arising
from the necessities Of a period, and in
keeping with its eXactions, is now as it
were isolated from its contemporary in
situations, and is not what is required to
meet the constantly accruing demands of
our times. With the abolition of cum
brous formalities ought to go features
more Objectionable, and more calculated
to cause the laws delay, which is the
great bug-bear to litigants. The COM
mercial and producing world has as
sumed such greatly increased proportions,
and arisen SO much superior to every
thing else, that the efforts of the judicial
departments are devoted in the main to
their aid and support, but owing to their
defective organization, and Intellectual
workings, utterly fail to secure the de-
sired end. Activity, energy, enterprise
and CELEBRITY, are absolutely essential to
commercial and producing people and
are characteristic every where Of them.
We are eminently people of that char
| acter, and our institutions demand that
the law and its execution should assist
rather than retard them. Is it so, that
they do assist? Indulgence, delay, and
| almost slothfulness, are every where in
| cident to the execution of the substan-
tive law making the courts the almost
safe refuge of defalcators and delin-
quents, who, knowing its delays and
| means of defense, trust to time to eXtri-
cate them without loss. The judicial
system is one of our institutions that has
| not kept pace with others, and is
in some particulars entirely out Of
keeping with the times. Notice only one
effect, where property in litigation is in
| almost every instance lost to the none
tary world, and although millions in
amount, is a mere cipher in the wealth OF
eople. What we conceive to be the
error, is in the arrangements Of the courts
and the code of procedure. A few sug-
| gestions as to one in this place and we
ask a future hearing for the other. Ju-
| dicial procedure as the CO urse taken for
| the accomplishment OF the supreme will
| as evidenced in the law, is entirely out of
keeping with what is required to secure
| the end in view. Delay and the incident
evils; chicanery, and Objectionable tech
nicalities spring from it; and lastly, and
not the lesser evil, the cause the courts OF
being regarded by w-abiding and hons
est citizens, as castle whence worthless
and dishonest individuals can harrass
and annoy whoever may seek justice Of
them. These evils are glazing and proof
irrefraglble of their existence and ten
| denotes. OF the substantive law we have
nothing to say; our admiration for 1t IS
| as deep seated as is our honest conviction
that the code Of procedure is an immense
mass of conglonerated customs and
technicalities, which has in nearly all
instances failed to secure the effective eX-
ecution of what it alone exists for We
do not mem literal failure to
give effect to the laws, but we do
mean such a failure as does not
give the only remedy worth seeking and
that is prompt and speedy one. The
adjective or procedure law has two speci-
fed objects the one the execution with
the greatest possible effect of the sub.
stantive law the other the mitigation of
the necessary evils and apparent hard
ships in a rigorous execution of the
same. The courts seem to have lost
sight of the first, and the public equally
blind as to the justice Of the last. Be-
tween these two objects the conflict has
been all-pervading and perpetual. The
courts, out Of their own tenderness for
defendants and delinquent plaintiffs, have
created this system of procedure out o.