property rights of the people are threatened by that most dreaded instrument of the most dreaded despotism, to-wit: the referendum; and, therefore, that for stability of government, the independence of the judiciary and the protection of those individual rights, the lawyers of Tennessee, and especially this bar association, should, at once, use the most strenuous efforts to have a reformation of the constitution; or, at least, an amendment thereto, giving freedom to the judiciary from legislative control before the terms of the new officers are to begin in 1902. Only a few years ago an effort was made to have a constitutional convention. Then it was in the midst of the terms of most of the executive and judicial officers of the State, and, as was natural, this effort was opposed by the combined efforts of the office-holding part of the community, supplemented by other powerful influences, inspired thereto by self-interests, the arm which moves the world.

It may now, indeed, be too late to accomplish this result at the meeting of the next Legislature, but it is believed that if the bar of Tennessee would all seek to accomplish it, the constitution might be reformed and adopted before the new of ficers would be elected and installed.

Whatever may be the desire of the individual who has no property interest to protect, surely no man who has a future, or who has valuable investments in the State, or who might desire to come for investment into it, can ever feel quite secure when his rights must depend upon a subservient judiciary, which may be driven, cajoled or persuaded into an unjust decision by the threat of political, personal or legislative influence. It has always been said of the judiciary from the beginning of this government till now, that its crowning glory was that the people have felt that whatever temporary passions or prejudices may have disturbed society, the courts of the country stood as a breakwater between the friendless, the innocent, the unprotected and the great whirlpool of human passion. If the independence of the judiciary be destroyed, this can no longer be. Its dependence upon the immediate will of the populace will but make it a part of that great body,

requiring the judge to inquire who are the parties, not what is the right of the controversy, and the pilot who was once entrusted with the helm will be shaken and paralyzed by the storm which affects the common mariner, and the craft upon which we are all embarked must drift without helm or compass to destruction upon the breakers. The older members of the profession can remember when the only protection that life and property in Tennessee had was the more just, the more calm, the more valued judgment and hand of the judi ciary. The existence of such conditions in the past proves, at least, the possibility of a return, and it behooves every lawyer and lover of his country to set his house in order before the cyclone comes.

Some Needed Reforms in Jury Trials.

W. L. FRIERSON, of Chattanooga.

Mr. President and Gentlemen:

Perhaps no subject has had bestowed on it more eloquence; perhaps no institution has had ascribed to it more virtues; perhaps no guarantee of our Federal and State constitutions is held sacred by more of our people than the right of trial by jury.

On the other hand, it is frequently said that, in this day when the business of the world is conducted by corporations, the prejudices and sympathies of jurors render the jury system wholly unsuited to present conditions.

It is not my purpose either to attempt a eulogy upon this institution or to declare it a failure. Much of the good claimed for it is but its just due. In the days of corruption and tyranny on the bench it was the great barrier between the people and oppression; nay, more, it is still our strongest guaranty against an oppressive administration of the law, so much so that scarcely any thoughtful man would eliminate the jury from criminal trials. At the same time it cannot be denied that there are not uncommon instances in which manifestly unjust verdicts are returned, verdicts which cannot be explained, except as the result of prejudice, sympathy or ignor

ance.

With one class of lawyers insisting that the jury system has outlived its usefulness and should, in the interest of justice, be abolished in civil cases, and another demanding that the facts of every such case, whether contested or not, should be submitted to a jury for a general verdict, I am unable to agree with either. I believe that no better method of ascer

taining the truth, as between witnesses whose testimony is conflicting, has yet been discovered than to let twelve honest men of average intelligence, and from various walks of life, see the witnesses and hear their testimony and determine the controversy. I do not admit that a lawyer, because he is learned in the law, is any more likely than a sensible, practical, but unlettered man, to learn just how a certain thing occurred from hearing the statements of the witnesses who saw the occurrence. Indeed, it may well be doubted if his very learning does not often make him a less safe judge in such a case than the man whose chief learning consists of his practical experience with men in the ordinary walks of life. I am a firm believer in the jury system within its proper sphere and properly administered.

But, on the other hand, I can conceive of no more absurd anomaly than a system which, to any extent, leaves the jury to determine questions of law. Almost all the just complaints against the trial of civil cases by jury can be traced to the confusion of the province of the jury with that of the judge, either by the law itself or through a faulty administration of the law by the court.

To the jury belongs only the decision of disputed questions of fact. If the judge is to perform any real function in the trial, he must be the exclusive judge of the law. It is his right and his duty to declare what the law of the case is. To conceded facts he should apply the law. Until some dispute as to what are the facts arises, there is nothing for a jury to do. This principle, as applied to pleadings, has never been questioned. When the plaintiff sets out in his declaration the facts, and, by demurrer, these facts are admitted, the court determines whether he is entitled to recover, and that without a suspicion of doing violence to the right of trial by jury. But, until a few years ago, the opinion prevailed with both bench and bar that, in Tennessee, when the pleadings were once made up and the evidence introduced, the presiding judge was, in all cases, powerless to do aught but submit the case to a jury for a general verdict. Naturally the functions of judge and jury became strangely confused. The province

of the jury was extended beyond all reason and given a scope it never had in England, if, indeed, in any other jurisdiction. I do not speak now of theory, but of practical effect. Our theory has always been that, in civil cases, the jury tries only the facts, but yet it was supposed that every case, even if the facts were not contested, must go to the jury. And when none of the facts were disputed, or when the plaintiff's own evidence failed to sustain his material allegations, the submission of the case to the jury either became an idle ceremony, or it clothed the jury with authority to determine the law, since there could be no facts to determine.

The anomaly of the thing was that it made the court say to a litigant, "Unless your pleadings contain certain allegations, you are not entitled to a jury trial; but if you will only make those allegations, even if you produce no proof to sustain them, there is no power to deny you the inviolable right to have a jury of twelve men pass on your case." In other words, the determination of a controversy upon facts stated and admitted in pleadings was a question of law; but the determination of the same controversy, upon the same facts, but stated and admitted in the form of evidence, was a question of fact.

So prevalent was this extravagant notion of the right of trial by jury that when the profession, taking the cue from the language of the Chief Justice of the United States, began to revive the practice of demurring to evidence, consternation and alarm were aroused in many quarters. The practice was denounced as an arbitrary encroachment by the courts upon the rights of the jury. It was even urged as a reason why certain judges should not be renominated to the supreme bench that they were suspected of a tendency to countenance this high-handed practice.

When, finally, the decision of the Supreme Court was invoked, it was promptly decided that, in Tennessee, as in all other States, a jury has no function to perform unless there is a controversy as to some material fact. Upon this proposition the court had no difficulty.

The serious question was, how can a case involving no ma