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Court should be of the opinion that the plaintiff was entitled to a recovery, he should overrule the application for peremptory instructions and pronounce judgment upon the verdict. of the jury. From this judgment either or both plaintiff and defendant could appeal. And, if upon investigation in the Appellate Court, it was found that a judgment should have been directed for the defendant, the Appellate Court could pronounce such judgment, or if the Court should be of the opinion that plaintiff was entitled to a recovery, the Court would pronounce judgment upon the verdict of the jury. In this way we would have only one appeal.
If the lower court should have committed some error in the statement of the law applicable to either theory, that could be corrected along with the other errors, if any, by the Appellate Court, and thus the business of the Court expedited, and litigants would be relieved of the uncertainty and expense of a second trial, and besides every law suit should be fully and fairly determined and a final judgment rendered by the Court with jurisdiction, without delay and expense of a second trial.
But I promised you that I would leave the solution of this subject to the judges and direct your attention to such remedial legislation that may effect not only the courts, but the whole people in the administration of the law.
It has been said that courts are established for the purpose of administering justice. The court house has been designated the "temple of justice," where the weak and feeble meet upon an equal footing with the strong and powerful.
The scales upon which each are to be weighed have been represented as being held by the Goddess of Liberty, blindfolded, where justice is given to each according to the facts, without reference to station or position. The courts are supposed to be open for all, and it is here we meet upon an equality before the law.
But in order that justice may be equal and exact to all, it is necessary that the record should speak the whole truth and nothing but the truth, for unless the facts as they are shall appear, the Court cannot determine the right or mete out justice to any.
It is along this line of truth that reform is most needed in
Tennessee, and in this entire country. Procedure can never supply the link of truth nor weld the broken fragments of a violated contract.
Twenty-five years ago, back in the mountains of East Tennessee, it was the exceptional, the rare and unusual case where men could be found who were willing to bathe their souls in the filth and slime from the regions of the damned and steep their lips in perjury, by coming into court and testifying to a falsehood.
But, in these later days, after the march of civilization in our midst, after increased culture and advanced religious thought, after railroads and cities have been builded across our plains and upon our hills, after capital and industry have added wealth to their treasuries by robbing and removing from our mountains vast storehouses of precious minerals, after the spirit of commercialism has seized our once quiet and happy people, after the settlement in our midst of a strange, cunning and crafty people, we have about reached that stage where it is the exceptional, the unusual, the tame and uninteresting controversy, that the truth, the whole truth and nothing but the truth, is told.
Mr. President and fellow lawyers, this is rather a strong statement of conditions that are appalling.
But this condition does not exist alone in East Tennessee, nor is it confined to Tennessee, but it exists throughout the length and breadth of this great country of ours. It is not confined alone to this country. It has reached every quarter of the globe, where it permeates, disturbs and corrupts the proceedings of courts. The counsel of kings and rulers have felt its blighting effect.
Of all of the reforms that should be given attention, to my mind, this is of most importance. This is the one thing that will undermine and destroy our fabric of government. Unless the truth is told in the courthouse, the Courts are unable to properly administer the law, and a failure to justly administer the law brings about distrust upon the part of the people, and when the people lose confidence in their Courts, we are nearing the end of the republic.
The law cannot be properly administered where the truth of
the occurrence out of which the controversies arose, has not been told. The Court may waste many long hours and days in trying to find the truth as things are now, but at most it must be content with glimpses of truth here and there, in passing through the voluminous records.
As records are now made up the first inquiry for the Court is to find the truth of the transaction, and unless the witnesses have testified truthfully, the Courts are left largely to conjecture. And, being unable to find the whole truth, it is indeed an undertaking to apply the law applicable to a common case, to the facts of the case in hand. Hence, the decisions of the Courts are quite frequently unsatisfactory to both sides, and we hear much complaint about being unable to get justice in the Courts.
In any controversy in which life, or much property is involved, it seems there can always be found witnesses who are willing to make statements favorable to any theory of the controversy that may be advanced. Hence the great conflict of evidence now heard in court, which frequently misleads the Court and jury and forces them to reach erroneous conclusions, often resulting in a denial of justice, the effect of which is to turn the weak and uninfluential from the Court without apparently a fair and impartial hearing.
In this connection we hear complaint that the corporations and wealthy litigants have and obtain an undue advantage in the courts. The reason is apparent. When it becomes necessary that certain theories should be proven in order to win a law suit, it is only the rich and influential who can procure witnesses that are willing to testify to any theory that may be advanced, for certainly men would not testify falsely except for gain or reward. The weak and feeble are placed at a very great disadvantage in that they are unable to procure witnesses to sustain what they believe to be the true theory of the controversy. Hence we hear much of the Courts being upon the side of the rich and influential individual or corporation. The Courts can only deal with the matters brought to their attention. It therefore behooves all, the high and the low, the rich and the poor, to join in any movement that will place all upon an equal plane where the rich and influential
will not have, or appear to have, an unfair or undue advantage in the Courts.
It is a common remark heard upon every hand, that no longer men's words are their bonds, nor can you longer depend upon men's promises. Men have become frantic in an effort to gain wealth and in their greed it seems are willing to risk anything short of the penitentiary to accumulate wealth or to reach stations of fame.
Even in business dealings, no longer do men comply with contracts where conditions have so changed as to make a once profitable contract a losing game. Men misrepresent their goods and commodities, a lack of truth and square dealing is heard upon every hand and in every department and business, therefore we are not startled when men come into court and make contradictory statements of contracts and dealings with each other.
A wild hysteria has been sweeping over this country from ocean to ocean, from the lakes to the gulf, upon which tide the typical reformer has been riding. He preaches a heresy, that the end sought justifies any means needed to obtain the object and purpose in view.
We hear from the public rostrum a justification of a disreputable course that the end justifies the means; we read in the public press long and labored articles excusing questionable conduct upon the part of public officials; and even from the pulpit comes lengthy discourses in an effort to boost the theory that the end justifies questionable means and conduct in accomplishing the purpose sought.
We certainly need an awakening of the public conscience along the line of truth and square dealing.
But, to this Bar Association, there is another part of this subject, one that comes home to the lawyer, and it is of this I want to speak. It is with this that the lawyers can deal. It is the one thing that has contributed much to driving from the "temple of justice" the power of truth, and one thing that has allowed confusing and conflicting statements to be brought into the trial of cases.
The baneful effect of this has calloused the public conscience and rendered the law of perjury obsolete in Tennessee. I don't believe the statement can be truthfully challenged, when
I say there is not a lawyer or a judge upon the bench, in attendance at this convention, or in the State, who, without the aid of a form book could draw an indictment for perjury. It is an unusual occurrence and in these days we rarely ever hear of anyone being indicted or tried in the criminal courts. upon a charge of perjury. A trial of this kind would attract greater crowds than a circus.
They tell us that it is impossible to convict anyone upon the charge of perjury because of the complication of the machinery necessary to sustain a conviction. First, the official must have jurisdiction to administer an oath. It must be in some judicial proceeding. The oath must be authorized. The matters stated must be material to the issue. The books say it is not every false oath however reprehensible or corrupt that is made penal by statute, but only such oaths as are required or authorized by law, and even then it must in all cases be averred and proven that the false matter was material to the issue on investigation, or to the end sought, or intended to be attained by the oath.
By the time all this has been proven, the necessary aver ments made in the pleadings,the jury is lost, confused and bewildered, and to add to the confusion, the Court, under the law, is required to charge upon essentials and nonessentials, after which the jury in despair reports that they are unable to determine what should be done; but, applying that part of the charge upon which great stress was laid, that all doubts must be resolved in the defendant's favor, therefore being in doubt about the whole matter, they discharge the prisoner.
The time of the criminal courts is taken up largely in dealing with bootlegging and other petty crimes, so that it seems no time is found to deal with the more weighty subjects, whereas these petty offenses would all disappear should it become known in Tennessee that men who testified falsely would be sent to the penitentiary.
Recently I attended a session of a criminal court, where for two weeks I looked on the performance. The time of the Court was taken up in trying a few deluded and unfortunate creatures that had been trying to make a living by selling liquor, together with a few who, because of want or indolence,