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SHOP WORN ARGUMENTS NO LONGER APPLY. No unbiased man of thought and reflection will deny that Tennessee stands woefully in need of various amendments to her organic law.

It is difficult to see how any reasonable man can object to amending the constitution upon the Ohio plan.

The old shop worn arguments that the times are not propitious because of political unrest; that the prohibitionists will get control of the convention, or the whiskey people will get control, or the railroads will get control, or the populists will get control, or the Republicans will get control, or the Democrats, will get control—(all of which we have heard proclaimed for years, but usually by men who had some ulterior motive therefor)—will not apply now, because the convention will only propose amendments, while each lord of creation in Tennessee, eligible to vote, can write his fiat, favorable or unfavorable, upon each separate amendment, with no one to molest or make him afraid.


I can not close this report without calling attention to a severe shock to the pride and prestige of Tennessee and Tennesseans which we suffered only a few days since, when financiers of the country turned down a proposed sale of Tennessee bonds, for the purpose of refunding your State debt, which would not have occurred, except for the clause in your constitution with respect to taxation, as interpreted by the Supreme Court, by a vote of three to two, in a recent decision.

The legislature enacted that the new State bonds should be exempt from State, County and City taxation, a principle of public policy with respect to taxation recognized as correct by all enlightened governments. But such principles weighed as nothing with Tennessee organic law as interpreted.

When we reflect that the statute laws of Tennessee invites the widows and orphans of Tennessee to invest their usually small patrimonies in State bonds, as the safest and best investment, that these bonds are only bearing three (3) per cent interest at the present time, and it is proposed that hereafter they shall only

bear say four and a half (412) per cent interest, while State, County and City taxation usually exceeds three (3) per cent, and the bonds cannot be exempt from taxation by law, the utter folly of the situation is so apparent as to need no comment.

WHAT IS THE MATTER WITH TENNESSEE ? We are over-fond of bragging about the untold millions of dollars in value of mineral wealth locked up in the bosom of Tennessee soil; and it is true that in mineral wealth as well as agricultural possibilities it has few rivals in the Union; and yet so poor was its showing in the last census report of the United States Government, that an article appeared in a leading New York daily headed “What is the matter with Tennessee?which went the rounds of the press of the country, to our humiliation and chagrin.

Yes, the wealth is here but locked up, and it seems we have not the ingenuity or the aptitude to open this door of wealth and let it flow among the people to their enrichment and to answer the question—“What is the matter with Tennessee ?”

And likewise the early history of Tennessee reads like a page torn from the book of romance. Its early settlers were the hardy men who under Sevier, the first Governor of Tennessee, crossed the mountains and met the columns of Lord Cornwallis on Kings Mountain, and with their squirrel rifles, achieved a victory, said to have been the turning point of the great war of independence. Upon Tennessee soil was instituted the first distinctly republican form of Government upon the continent of America. Jefferson said that the constitution framed by the pioneers of 1796, was the best that had appeared up to that time. As the State grew in years it grew in real greatness as well, and furnished to the Union three Presidents, while not one State upon its borders, seven in all, ever furnished a single President to guide the destinies of the nation, excepting always Virginia, the Mother of States and of Statesmen. And so there were men and lawyers in Tennessee in 1834, and in 1870, with ability and sufficient prowess to answer the wants of their day and time. There were giants in those days at the bar as well as among the laymen. Has the posterity of those men

degenerated to a race of pigmies afraid of themselves, and still more afraid of the other fellow?

DUTY OF THE BAR. If not, let the Bar come forward in its majesty and relay at least some of the foundation stones of our organic law. First of all the foundation stones of every institution must be sound, secure and unshakable; otherwise the superstructure can not stand the test of time. We were admonished of old not to build upon the sand. It matters not how you amend your statute law, or pass new acts, you may be assured that when the rains descend, the floods flow and the storms of litigation beat thereon, the superstructure must fall—it cannot stand.

Therefore, gentlemen of the bar, see to it that the foundation upon which rests all the public institutions in Tennessee is relaid, and made sound, secure and so as to meet the exigencies of this day and time, and then upon this you may build the superstructure as you will.

If any one supposes that the only object of entering the profession of law is to furnish an arena for the display of intellectual ability, or for the accumulation of wealth, then he is very greatly mistaken. There is a higher and loftier view of the duty of the members of the profession, which was quaintly expressed by Lord Bacon when he said: “I hold every man a debtor to his profession; from the which as men of course do seek to receive countenance and profit, so ought they of duty to endeavor themselves by way of amends to be a help and an ornament thereunto.” June, 1913.

Respectfully submitted,



The following address was delivered by the Honorable
James H. Malone, before the City Club of Memphis, on Novem-
ber 26, 1911. Mr. Malone was not himself a member of the Club,

but was requested to make the address, owing to his eminence as a lawyer, and his known familiarity with the subject of the discussion.

While the Committee was authorized to have the address printed for general circulation, still it is well known that the best informed men often differ as to the mere details of any great movement. The address is sent forth, therefore, as the distinct views of Mr. Malone, but with the belief that, owing to the great importance of the matters discussed, it will arrest the attention of all thoughtful and patriotic Tennesseans. The movement is entirely non-partisan. Memphis, January, 1912.

C. C. HANSON, Chm.
J. P. Young,


Mr. Chairman and Gentlemen :

It is of the highest importance that those who would have the constitution changed should first have a knowledge of that instrument, and how its important provisions have been interpreted by the court of last resort.

It is also very important to know the true office of a constitution in our republican form of government. The popular idea that the constitution is the origin of our natural rights, such as the right to life, liberty and the pursuit of happiness, is entirely erroneous. It has been well said: “A constitution is not the beginning of a community nor the origin of private rights; it is not the foundation of law nor the origin of private rights; it is not the cause, but the consequence, of personal and political freedom; it grants no rights to the people, but is the creature of their power, the instrument of their convenience, designed for their protection in the enjoyment of the rights and powers which they possessed before the constitution was made; it is but the framework of the political government, and necessarily based upon the pre-existing condition of laws, rights, habits and modes of thought.”

In the proposed movement care should be taken not to have misquided friends advocate placing in the fundamental law mere matters of ordinary legislation. These have no place in a constitution. Then, again, eratic people will propose all sorts of wild propaganda to go into the constitution. These two kinds of misguided people, though favorable to the movement, really do it as much harm as those who openly oppose the movement.

I will now state some instances in which I think the present constitution should be changed.

A PREMIUM ON IGNORANCE. The administration of the law in its purity and integrity, especially of the criminal law, lies at the foundation of all good government. This is not possible in Tennessee, for a ban is put upon intelligence and integrity and a premium put upon ignorance, stupidity and even dishonesty in the selection of jurors to try criminal cases.

The law in the constitution ought to be that notwithstanding a man has read a newspaper and formed and expressed an opinion as to the given offense, still, if he will say on oath that he can discard this opinion and give the defendant a fair and impartial trial, and the presiding judge is of opinion that he is a fair man, then he should be allowed to sit in the jury box.

Under the present law all that is necessary is for the defendant to commit a crime so atrocious as to shock the entire community, when hundreds of men are taken from their business, simply to be rejected as jurors, at thousands of dollars of costs, and if a jury is secured it usually has upon it some men, at least, of the lowest type and unfit to administer the criminal law, for often some of the jury are of the criminal class. In some cases the farcial result has been that no trial can be had, because in the eyes of the law there are not sufficient competent men to try the case. Witness the discharge of the defendants in the DeSoto street murders a few years since, which so shocked this community that mass meetings were held; but the farce ended when, under your present constitution, twelve honest and competent men could not be found in all Shelby County to try the defendants !

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