We have a notable instance in Tennessee decisions of the widely divergent views that different judges may take of what the policy of the law is, or what public interest or policy demands. At the September term, 1881, the case of Turley vs Massengill was decided by our Supreme Court. The question involved was the construction and validity of a clause in a will where a testator devised his land, subject to charges, to his son. By a codicil he provided that these lands should "be vested in A as trustee for the use and benefit of my said son; and no part of same is to be subject to execution or other legal process for any debt or liability he may have contracted, or may hereafter contract; nor is he to sell the same nor any part thereof, but may use the rents and profits for his support and that of my wife; but he shall have the right to dispose of same by last will and testament." Both will and codicil were duly recorded. It was sought to reach the son's interest in the land to satisfy a debt held against him by the complainant Turley. The court held that the son took an absolute fee in the property devised, and held it liable for the satisfaction of his debts. In the body of its opinion the court says, "We think for several reasons such restrictions and inhibitions must be held as void because repugnant to the estate granted, and because contrary to the letter and spirit of our statutes and laws which make all property of a party liable for his debts, except such as is specified by those laws exempt in favor of poor persons."

At the September term, 1887, the case of Jourolman vs. Massengill came before the court involving a construction of the same clause of the same will, the complainants attempting in the same manner as in Turley vs. Massengill to subject a portion of the same property to the satisfaction of their debts, when the court held directly to the contrary-that the property could not be subjected to the payment of Massengill's debts, that such a trust was valid, and its creation was not contrary to sound public policy, that it did not violate any law of property, that it was not contrary to the letter and spirit of our laws and statutes, but on the other hand was approved by justice and humanity, and had, in this State, legislative sanc

tion. This change in the court's opinion as to what was the spirit of our laws, or the public interest or policy with reference to this question, took place in the short period of six years. An election having taken place in the meantime, four new judges were upon the bench at the time of the last decision, and, so far as is shown, the judge who remained participated and concurred in both opinions.

This tendency of the courts to look beyond the plain provisions of law, constitutional, statutory and common, and to shape their decisions according to what the necessities of the times demand, has involved the courts themselves in inexplicable confusion, and left the profession at sea upon many of the most important branches of the law. For instance, who can follow the Supreme Court through its maize of decisions on the homestead law in Tennessee and arrive at a conclusion as to homestead rights in this State? What lawyer or legislator can ever render an opinion upon whether the provision of the Constitution of Tennessee with reference to titles to Acts of the Legislature has been complied with, and feel sure of his position? To speak plainly, the rule as adduced by the profession from the decisions upon the subject is, that when a question is raised as to the title, if the court thinks the act a good one or it is suited to their notions of public interest or policy, the act will be in accord with the constitution, and if they disapprove the subject matter of the act a defect may more readily and easily be discovered in the title, and the legis lation set aside in consequence. This point is so universally recognized by the profession all over the State, that I trust it may not here be deemed improper to state the foregoing as the conclusion they have reached upon this question.

Who understands exactly the rights of married women in Tennessee? and who can speak advisedly at all times as to what the husband's marital rights are? The courts and the Legislature are proceeding, each independently of the other, and it has come now to the point where, as I gather the sentiment, the lawyers would prefer that the old rules of the common law with respect to married women and their husbands be re-established and enforced, or else that the married women be entire

ly emancipated, relieved of their disabilities of coverture, and placed upon the same footing with their husbands.

Look to the general assignment law of 1881, then look to the decisions with respect to it, and it will be found that for all practical purposes the act has been rendered nugatory. These instances from the holdings of our own courts are mentioned here as illustrative of the evils that will necessarily flow from the efforts of the courts to deal with the policy of the law, or from their efforts to develop a policy instead of dealing with questions and laws as they are, and leave it to the proper authority to remedy such defects as it may appear is in the laws already enacted, or to make new laws to meet the necessity which occasions or circumstances may demand.

It may be further observed that this system of judicial legislation is responsible for confusion in other branches of the law, especially with reference to attachments, mechanics' liens, executions, interest, bankruptcy, limitations and the like, where new doctrines are being developed, new features added to the statutes by the courts, modifying or enlarging them, and attempting to invest them with a character which the courts think the age, and the moral sense of the country demand; trying to adapt old doctrines to new needs, into all of which this doctrine of public policy enters more or less, and all of which but serves to emphasize the importance of courts deciding questions upon the law as it stands, and not attempting to go further, and make law whenever they think the necessity of the particular case demands. If the courts would but do this, there is nothing that would tend more to harmonize their de cisions on the various subjects about which they are so much at variance.

In conclusion, let me say that it is time that the true source of this unmeasured element of public policy in our jurisprudence should be known, its proper place fixed, and its limitations be, with some degree of certainty, stated. This is abso lutely essential, if it be desired to preserve clear lines of demarkation between the legislative and the judicial departments of government, as prescribed in written Constitutions.

I am mindful of the fact that some of the positions I have taken possibly are not in accord with what may be called the weight of opinion upon this subject, nevertheless, I have an abiding confidence in the correctness and justness of my views, and submit this paper, asking for it such consideration as its contents merit.

How to Relieve the Supreme Court

Docket.

GEORGE GILLHAM, of Memphis.

Mr. President and Gentlemen:

No matter could possibly interest the bar of the State more than the work of our Supreme Court.

All men admit that the court of last resort; the tribunal which must at last determine the rights of all citizens, should be so environed as to give its Judges every possible opportunity to reach correct results.

This is important, not only to the litigants, but to the public as well; for every decision is either in line with former precedents, or forms itself a precedent.

Stability and consistency in the rulings of the highest court are of the first importance in the judicial government of the State.

We also all agree that a Supreme Court Judge can no more do two days' work in one than can any other man. If this be required of him, he is forced to work too hurriedly. Promptness in the decision of causes submitted is always by the bar appreciated, but no prudent lawyer ever wishes to hurry the Judge in arriving at his conclusions. If he has a good case he may lose it, and if he has a bad one the Court may overlook in its hurry, the extenuating circumstances.

It is known to the bar that our Court decides more cases each year than do the courts of the adjoining States, but possibly they do not know the whole truth in this regard. In order to bring these facts sharply before the bar of the State, I have obtained from the clerks of the various courts of this State,