exercise of religion. If any community, whether it be a city, county or state, should attempt to place undue restraint or burdens upon one religious sect as against another by a statute acceptable to a majority, such statute would be invalid. Thus, religious liberty is now vouchsafed to every individual and to every community and the permanence of such safeguard is insured so long as constitutional provisions are free from the results of temporary or local prejudice of this or that community. But this protection is swept away by the application of the Judicial Recall. If the constitutional provision may be suspended or disregarded at any time or place, or as to any particular statute, by a mere majority vote, then any locality, where a majority of the voters may happen to be of one religious sect, may pass, either by direct initiative or by their legislature, a statute oppressive of the minority and the same majority by popular vote are given the power to say that the constitutional prohibition shall be ignored as to such statute. Accordingly, whether it be a question of protection of religious freedom or of the protection of the property or libery of persons, each and all such provisions may, under the Recall of Decisions, be ignored by the arbitrary will of a local, temporary majority. These are practical, probable abuses. The possible abuses are unlimited; for the very essence of the proposition is to do away with restraint and with safeguards, and to make the statutemaking power identical and coincident with the power to declare its validity and to compel its enforcement. THE FALLIBILITY OF POPULAR MAJORITIES. It is not a question of whether the courts make mistakes. The question is, Is it safe to deprive the courts of their functions and to turn them over to the direct vote of majorities? It is often answered that the good sense of the people at large, as evidenced by their voice at the polls, may be safely relied upon. This was not the judgment of the framers of our constitution; for it was to protect against the probable and possible errors of temporary majorities that safeguards were written. into the constitution. Why, up in Minnesota, two years ago, the country members of the legislature caused to be submitted This was to the voters of the state a constitutional amendment providing that, regardless of population, certain city districts should not be allotted a number of senators in excess of seven. known as the "seven senator" measure by which it was intended to discriminate in favor of the country and against the large cities in reapportioning the legislative districts under the last census. The two localities especially attacked were those represented by the two cities of St. Paul and Minneapolis. Nevertheless, at the state election, the seven senator amendment passed in St. Paul and nearly obtained a majority in Minneapolis. The voters of those two districts were of average intelligence and yet they voted in favor of a measure directed especially against them. That it was not adopted by the entire state was due to the mere accident that the country districts happened to vote against it. The temporary judgment of the voting citizenship cannot be relied upon for wise and consistent action. But it is in the exercise of the Judicial Recall that the temporary prejudices, passions and ill-considered judgment of the voters are expressed. The present system provides for measures of reform, whether in matters of procedure or in expression of the deliberate judgment of the people as to constitutional amendment. There is already a legal and constitutional way provided for the correction of all evils, and for the expression in the form of valid laws of the real, ultimate, deliberate judgment of the sovereign people; but that expression of the sovereign will and its enforcement should be made consistently with the methods which characterize our government of laws, and with the preservation to the judicial department of all its functions. The independence of the judge should not be assailed by making him at any time directly answerable to the people. The protective features of our constitutions and the essential functions of our judiciary should not be replaced by measures which allow the authors of a statute the privilege of dictating as to its enforcement. Our present system of government by law should not be replaced by a system of government by men. The judges and the entire judiciary should be maintained and supported as servants only of the law. In his duties as a servant of the law, a judge should be free to act independently and, as said by Chief Justice Marshall, "With nothing to control him but God and his conscience." He should at all times be free to heed the admonition given by Moses to the Judges of the Israelites.1 12 "Ye shall not respect persons in judgment, but ye shall hear the small as well as the great; ye shall not be afraid of the face of man; for the judgment is God's." Our judges should be left free to live up to the ideal of the just man, who, in the words of Horace, "Firm in the consciousness of right, disdains, with equanimity, the frowns of a tyrant and the clamors of a mob." Judge Julian C. Wilson:-I desire, Mr. President, to make a motion in double aspect, as lawyers say. I desire first, that the thanks of this Association be tendered most heartily to Mr. Brown for his luminous and vigorous discussion; and second, because we learn from you that he lives far from us and because he has demonstrated such great merit, we still desire to have him one of us, and I move you that he be made an Honorary Member of this Association. Mr. President, if he will kindly accept our election, which I hope he will, I would like to burden him with one question, and that is, what became of Judge Phillips? Motion seconded, and carried by a rising vote. Mr. Jas. L. McRee presented the report of the Committee on Legal Education and Admission to the Bar which was adopted and ordered spread of record which is accordingly done. To the Tennessee Bar Association: Your Committee on Legal Education and Admission to the Bar respectfully reports that while there are much needed amendments to the existing laws governing the admission of attorneys to the practice of law, some of which will be mentioned in this report, the committee finds that conditions in Tennessee could be much improved by a more thorough and careful enforce 12 Deut. 1, 17. ment of the existing laws and by the full co-operation of attorneys and the Courts in enforcing these laws. The Act of 1903 and the rules adopted by the Supreme Court thereunder constitute a full and complete Legislation on the subject of admission to the Bar so that there is but one method by which a party can be licensed to practice in any of the Courts of Tennessee, including the Justice of the Peace Courts. No one can legally practice law in Tennessee before they have obtained a certificate from the State Board of Law Exami ners. Your committee finds that in numerous instances parties are holding themselves out as practicing attorneys before a certificate is granted to them and that frequently, parties have their names enrolled as attorneys in the Courts of Record without presenting such certificate. It not infrequently happens that attorneys from other jurisdictions are presented by other attorneys and their names enrolled as attorneys in the Courts of Record upon the idea that under the rules of comity attorneys who have been licensed in other jurisdictions have the right to practice in Tennessee. As a matter of fact the rules and statute expressly provides that attorneys from other jurisdictions who desire to practice law regularly in Tennessee can legally do so only after a certificate has been issued to them by the State Board of Law Examiners. Under the statute and rules now existing, an applicant must furnish a certificate of moral character which can only be obtained upon motion of two attorneys before the County Court of the County in which the applicant resides. If parties are unworthy when licensed, the burden rests upon the Members of the Bar who appear before the County Court and make the motion for the issuance of a certificate showing the applicant to be a man of good reputation. The Supreme Court in the rules adopted at the September term, 1912, provide that "citizens of this and other states, who do not intend to practice their profession regularly in the Courts of this State will not be admitted." Observation of this rule would preclude the enrollment of parties holding certificates from the State Board of Law Examiners who do not intend to practice their profession regularly in Tennessee, but in many instances the applicants are enrolled and the oath administered when there is no intention to practice regularly in Tennessee. Your committee attaches to this report a copy of the statute and rules now in force in Tennessee. Your committee further reports that so far as it is advised there is no disposition on the part of Members of the Association to recede from the recommendation heretofore made to provide the requirement that an applicant must have a high school education or its equivalent and must have studied law at least two years in a law school or in a reputable law office. Therefore, premises considered, your committee recommends that the Association adopt a resolution calling for the support and co-operation of the Members of the Bar and the Courts in the enforcement of the rules which now exists and call upon the Courts to purge for the enrollment of attorneys, the names of all parties who have not been properly enrolled. Your committee further recommends that a resolution be adopted requesting the Supreme Court to so amend the rules governing the admission of attorneys to the Bar so as to require that every applicant shall have a high school education or its equivalent and shall have studied law at least two years either in a law school or in a reputable law office. Your committee further recommends that the incoming president appoint a committee of three members to present the matter of enforcement of the rules now in existence to the various Courts of the State and to memorialize the Supreme Court for the adoption and promulgation of the rules raising the standard for admission. Respectfully submitted, Jas. L. McRee, Chairman. W. P. Metcalf John W. Farley Robt. Burrow John M. Thornburgh Chas. C. Trabue W. W. Draper. |