Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1875-03-04
UNION AND AMERICAN.
THE LAWS DELAY.
RefOrmatOry Suggestions by a
Veteran JuriSt.
Why We Can Get Along With
Fewer Judges.
Our Administration of Justice
Too Complex and Cum
bersOme.

LOO SOALDl6A anu OuIn=
bersOme.
How TO Make the Courts Less
Expensive and More Efficient.
To the members of the General Assem-
bly of Tennessee: Complaints have been
made in this State in regard to the dura-
ton Of lawsuits, the number of lawsuits
growing out of the same transaction and
the general expenses Of the judicial estab-
liShmeut. Last year a convention Of the
Judges met with the patriotic pur-
pose Of making some suggestions in re-
gard Co the best means Of reducing the ex-
penses of this branch of the Government,
and Of correcting some Of the evils which
arise out Of the administration of justice.
No doubt some of the reforms proposed by
this convention will receive a favorable
consideration from the Legislature. The
Failure of the Judiciary TO meet the public
wishes in al respects does not seem to re-
suit from the want Of a sufficient number
Of Judges. There are now in this
State twenty four Circuit Judges, thirteen
ChancellcTs and six Supreme Judges. The
population is about one million two hun
Carolina twelve Circuit Judges and five
Supreme Judges, while her population is
about one million. In Kentucky there are
about twenty common law and equity
Judges and four Supreme Judges, and
her population is about O.e million.
There are in Massachusetts, seventeen Judges
in all, with a population of something less
than one million and a half. England has
only thiTty-twO judges, although her pOpu-
lstiOn is about twenty-five millions. This
statement may not be entirely accurate, but
IS sufficiently so TO show that a sufficient
Judicial force is maintained here to dispatch
with satisfactory prOmptness all the judi
Cial controversies arising in the State. Nor
can the evils be fairly attributed TO the
want Of administrative ability, or Of gene
raj qualification on the part Of the existing
Judges. So far rs my information extends,
they are faithful in the discharge of their
duties and compare favOrably with judges
Of other States in all respects. There is no
just ground for Clamor against the men
who occupy judicial positions, but there
are just grounds Of dissatisfaction with the
system under which they act.
The great and leading feature in cur sys-
TEN which gives rise TO more prolonged
litigation than ought to exist, and which
increases the general expenses Of the judi
Ciarv. is to be found in the established dis
tinctiOn which exist between actions at
law and suits in equity, in the administra-
ton Of the law in a given case in one pro
ceeding in the Circuit Court and the ad-
ministratiOn Of the equity in the same case
by a different mode Of proceeding in
the ChauceTy Court. The Circuit
Judge, acting according to the course
Of the common law, determines all
suits depending on what are denOminated
legal rights; he can enforce no equitable
right, though j: may be proved shat the
plaintiff is entitled to equitable redress.
So each chancellor determines all causes
which may turn on equitable principles,
but he can decide no case which belongs to
the legal forum. We have, therefore, two
systems Of jurisprudence and courts or
gained for the purpose Of carrying out
this double system Of judicature. 1t may
happen by This arbitrary classification Of
rights, enforced in separate courts and by
different modes Of proceeding, that a case
cannot be finally determined without two
trials in courts Of original jurisdiction,
andtwoin the court of appellate jurisdiction,
The value Of The estate in controversy may
be thus exhausted by prolonged litigation
and much of the time Of the public officers
consumed. These separate systems,
especially when administered by different
judges, GiveTge as time progresses, and the
distinctions between law and equity and
legal and equitable proceedings become
more and more refined and intricate and
m re marked; and we have two separate
bodies Of laws which would become as
distinct as the laws Of separate States if
the Legislature did not occasion
ally interfere by the transfer Of
equitable principles to the legal To-
rum. This state Of things leads TO great
uncertainty in the results Of lawsuits, and
adds TO their number and duration. There
are other evils resulting from this double
system. 1t has no tendency to make
Judge a thorough master of Jurisprudence.
He cannot be fully competent in his own
department and greatly deficient in the de-
partment to which he does not belong. In
the denser populations we have the law
practitioner and the equity practitioner,
and the one is not always the safest adviser
in the department in which he does not
act. An English Chancellor, Lord EldUn,
reprOaChed the Ch9nceTy bar for their lgnO-
rance of the common law. The labor and
responsibility imposed upon the profession
by the necessity Misunderstanding and main
tanning the distinctions between legal and
equitable proceedings is not appreciated.
These distinctions are regarded 10y many
persons as senseless jargon or trickery, cum
ningly devised TO multiply lawsuits; judges
are reproached for inetiiciency, and lawyers
are paid for substantial results and not for
technical drudgery. There is no class of
cit zeus more interested in the simplifca-
tion of judicial proceedings than lawyers
and Judges. The remedy is pain. It is
not to be found in the abolition Of the
Chancary Courts and the transfer Of their
jurisdiction to the Circuit Courts. This
would be nothing more than a return to
the system which existed in this State
pTior to the act of 1885 establishing
the Chancery Courts, and which now
exists in the courts of the United States
and in most Of those States which have
kent I'D the separate administration Of law
and equity. This transfer Of jurisdiction
would leave in force The double system Of
trials. but would make the judge who tried
the case in one department try 1t IN the 9th
er. We must go farther If we expect TO
simplify our system. We must abolish the
distinction between actions at law and SUITS
in equity, and establish uniformity Of pro
ceediug, rs far as practicable. The PLAIN
tiff must be authorized to set forth IN his
declaration, bill Of complaint or petition,
his grounds Of suit and whether such
grounds # suit he what are now denoml-
mated legal or equitable; and the defend
ant mus, be authorized to set forth in his
answer all his defenses, legal or equitable,
and the court must be authorized to