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SPEECH, In Committee of the Whole, on the proposition directing the Judi
ciary Committee to report a bill abolishing the Circuit, Chancery, and Supreme Courts.
Before commencing his argument, Mr. Brown introduced the following resolutions, as containing his views of the alterations which it was expedient and proper to make in the present ju. diciary system, which he moved should be adopted in lieu of those heretofore under discussion,
“Resolved, That it is expedient to make the following alterations in the judiciary system of this State, and that the committee on that subject prepare and report a bill accordingly.
18t. That a Chief Justice of the Supreme Court should be elected, who, with the three associate judges thereof, should hold said court at three places only, to wit: at Knoxville, Nashville and Jackson.
2nd. That the Chancery Court should be abolished, and the causes therein should be trausferred to the Circuit Courts of their appropriate counties.
3rd. That the Circuit Judges should hold three terms of their courts annually, with their present jurisdiction, and such other as is hereinafter transferred to them.
4th. That all jury causes should be transferred from the county to the circuit courts, except actions of debt and assumpsit, founded on bonds, bills, “promissory notes and liquidated accounts signed by the party to be charged therewith. Such actions to be commenced as at present, but to be tried by the justices holding the county court, without a jury and without any declaration or other pleadings in writing. Judgment to be rendered the first term with reasonable stay of execution, unless good cause for continuance be shewn by affidavit. Either party dissatisfied and desiring a jury trial, to be entitled to an appeal to the circuit court."
The Clerk having read said resolutions at the table, Mr. Brown proceeded as follows:
fore under discussion, only in this, that they do not contemplate a removal of the present judges from office. The system -the plan—the frame-work of the courts, is substantially the same, the removal of the present incumbents constituting the only material difference between the respective propositions. This being the case, I shall proceed to the discussion of the subject, I trust, with the same good temper and courtesy, which have heretofore distinguished this debate. The gentlemen from Smith and from Rutherford, who opened this discussion, have set us an example, in this respect, worthy of our imitation. They met in the tournament, shivered their lances and retired, with a gallantry which would have done honor to the most experienced champions in the proudest days of chivalry. Other gentlemen have followed on both sides, doing great justice to the subject and reflecting on themselves and their constituents the very highest credit. But what are to be the results—the practical effects of all this debating? Is it likely to terminate in a mere war of words—in a mere personal struggle for rhetorical ascendency? I do most sincerely desire that it may: but from the moment of its commencement I have had the most serious forebodings on my mind, Have you not observed what profound attention has been paid to this debate—what deep and breathless anxiety pervades all who have witnessed this discussion? Gentlemen need not imagine that it is a mere compliment to their powers in debate. No, sir, your fellow-citizens have learned that the independence of the judiciary, that main pillar in our political fabric, is about to be pulled down, and they cannot be insensible to the disastrous consequences. Nor will the effects of this discussion be confined within these walls; for we are kindling a spark in this debate, which will hereafter spread, and brighten, and burn, through every county in the State. The gentlemen know they can extinguish it now—that they can extinguish it in a moment, if they choose to do so. If, however, they will not, let them remember how we warned them-how we even implored them not to break up the deep foundations of social order, nor visit on Tennessee the distracting scenes of Kentucky.
have constitutionally the power-what necessity TV raising and pressing, with so much zeal, this delicate and perplexing question. The gentleman from White has been pleased to represent, in fervid language, the sufferings of the people for want of the proposed alterations. He, I think it was, that represented the country “as bleeding at every pore.” The gentleman from Davidson, though he did not deal in such bloody metaphor, dipped his pencil in the most gloomy colors, and presented us a picture of justice “old, and blind, and maimed.” Now, sir, I propose to throw away all metaphor—that being too much the language of poetry and romance--and to institute a plain matter of fact enquiry, whether there exists any adequate necessity for turning all our judges out of office.
I begin with those of the Circuit Courts, and of East Tennessee. I ask of the gentlemen on the other side of the mountain, what fault do they find of Powell. What has he done to justify the legislature of his country in rudely dismissing him from office? On this side we have often heard that he deserved higher advancement in the judiciary, and possessed eminent claims to the political honors of the State.
I will next inquire as to judge Scott. What terrible explosion has taken place in bis circuit-what popular rage is dragging him from the bench where he has so long, and, as I thought, so usefully presided?
The next in order is judge Keith. With him I have never had the pleasure of an acquaintance: but for ten years of public life, I have associated with members of the Legislature and other persons from his judicial circuit, and I know of no public officer, who, from information, occupies a more enviable station in the esteem and confidence and gratitude of his country.
Now, sir, having gotten through with the East Tennessee judges, I demand to know of their representatives on this floor, what well-founded complaints can be exhibited against them? If they tell me none, then I enquire of them how they can reconcile it to reason or justice, to their consciences, to disgrace those judges by wantonly turning them out of office. It will be no sufficient apology to them or to the country to say we intend to remove that disgrace by restoring them to office.
pointed ambition in a new election, may render them liable to hazards, to which it is cruelty and injustice to expose them.
I will next enquire, whether any necessity exists for this rash measure, among the judges of the Western District. Of judge Hamilton I have heard no complaint. Of judge Turley I never expect to hear any. He is one of those rare instances of judgemaking in Tennessee, which could hardly be bettered.
Judge Haskell, whatever might have once been the case, seems lately to have risen in popularity in his circuit. At all events, it can hardly be necessary to nullify him out of office, since you are in a fair way to do so in a much more constitutional manner. I come now to speak of the judges of Middle Tennessee, and I begin with judge Kennedy. The history of our lives would show, that we have not always been friendly, and that we are not now the greatest admirers of each other; but, sir, were he my greatest enemy, his character as a man and his reputation as a judge, shall not be tarnished with my consent by turning him out of office. Next, sir, I will enquire, who complains of judge Humphreys? I know not, and I care not; for turn him out when you may, his place will not be supplied by an equal. Have complaints been raised against judge Mitchell? If so, let us take warning from the fact. It goes to show that the judge which you made in 1829 could not last until 1831, What assurance then have gentlemen to offer, that this whole tribe af judges which you are proposing to make, will endure until 1833? I have yet to speak of judge Stewart and judge Williams, and have left them for the last, because I knew they were most complained of. I believe, sir, that nine-tenths of all this noise and clamor against the judges may be traced to their two circuits. Admit all this complaint to be well founded, do not gentlemen perceive how unjust it would be, to involve the other judges in the same disgrace with these? Surely that moral vision must be clouded that could expect the representatives of the other nine judges to commit an act so unreasonable and so indefensible.. I will now ask the gentlemen from Williams' circuit if we have not already done a great deal to relieve them from the real or supposed hardship of their condition. At the last session thoution of an impeachment. When that failed, a new circuit was formed to lighten their burdens. Beside all this, in 1827, the complaints from that quarter induced the Legislature tu pass a law authorizing the appointment of special judges. In doing this I admit the provisions of the constitution were most probably transcended, but coming from that region of the State, the gentleman from White should have been the last to reproach us for the infraction. Sir, I am inclined to believe that it is because we have done so much, and shewed such a disposition to do every thing asked for, that we are now called upon to consummate this last and fatal act of constitutional violation.
As to judge Stewart, most of us were boys—some on this floor were scarcely in existence-when he commenced the labors of the bench. This flourishing city in which we are now deliberating on his overthrow, was then nothing more than an ordinary village. He penetrated the forest, visited all the new counties as they were established, and in log court houses which neither sheltered him from the rain nor protected him from the cold, administered the law, “ without sale, denial or delay." Patient and persevering, and possessing more learning than many who outstripped him in the career of judicial promotion, he has been for twenty-two years the most virtuous, the most unambitious, and the most useful of all our circuit judges. I will go further and assert to this committee, that he has rendered more valuable services to the people of this State than any other judge of any grade or rank whatever. Your books of reports may hand down to posterity many names more honored than his, but the memory of none will be more richly embalmed in the affections and gratitude of the present generation. And yet he too is to be swept away by this modern doctrine of judicial nullification! And for what? Because he has grown old. Yes, sir, that is true; but let it be remembered, that he has grown old in your service. The infirmity of his body has not impaired a single faculty of his mind. I this day assert that he knows more law than half his persecutors, and is a better judge than the best half of those who are getting ready to step into his slippers. But he is crippled, withal, and goes upon crutch