Memoirs of Georgia; containing historical accounts of the state's civil, military, industrial and professional interests, and personal sketches of many of its people. Vol. II, Part 39

Author:
Publication date: 1859
Publisher: Atlanta, Ga., The Southern historicl association
Number of Pages: 1166

USA > Georgia > Memoirs of Georgia; containing historical accounts of the state's civil, military, industrial and professional interests, and personal sketches of many of its people. Vol. II > Part 39

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bench of New York for Dutchess county, and died in that state in 1821. And there, in New York, he was buried-the last chief justice of Georgia before 1847.

END OF THIRD PERIOD.

We have now passed through the courts of the revolution, and their continu- ance under the constitution of 1777. We have seen the royal chief justice, Grover, removed, and the faithful Stokes departing; Chief Justices Glen, Steph- ens, Werriat and Burke holding the name, and nothing more, while the war prevailed; the reorganization of the courts by Richard Howley, and the vigorous administration of justice by Walton, Stith, Osborne and Pendleton-Burke and Houstoun never sitting-twelve chief justices of Georgia, all told, before chief justices were abolished-mostly men of mark and substance. Let it always be remembered that within that time there was but one circuit in the whole of Georgia, all counties being in that circuit; and that the chief justice of the state was then presiding judge in every county of the state.

Feeling our way thus painfully, but with knowledge somewhat exact, consider- ing all circumstances, through the dimness and obscurity of colonial judicial birth; of judges trying to work justice in revolutionary times when there could scarcely be said to be any other law than that of might; and through the reorganization of courts by the new state of Georgia; we have at last landed upon that peaceful shore which is almost without history because it was without event, when under the constitution of 1789 and the judiciary act of that year, chief justices were no more in Georgia, and when superior courts were created. We have thus left the dim, mysterious and inaudible voices of our ancient judges-visible to us only by their acts; and have come to the days when reports of the courts have made their judgments articulate.

EARLY BAR.

Looking to the bar of the state we come upon names that commence to be familiar to us, having met them before in Georgia affairs, and by tradition. Rich- ard Howley, during his short career before the bench of which he had been chief justice, had the largest business. With him we find Samuel Stark, William Gib- bons, James Whitfield, Abraham Jackson, Nathaniel Pendleton, Matthew Hall McAllister and William Stephens.

FOURTH PERIOD. GEORGIA AFTER THE REVOLUTION, 1789-1796.

We are now at the time when chief justices were ended for a while, and superior court judges sat in their places. This was accomplished by a convention which sat in Augusta in the summer of 1789, and made a new constitution to take effect Oct. 9 thereafter; and by the new judiciary act of 1789, putting the new constitution into effect.

By that constitution it was provided:

"A superior court shall be held in each county twice in every year, in which shall be tried and brought to final decision all causes, civil and criminal; except such as may be subject to a Federal court, and such as may by law be referred to inferior jurisdiction.

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"The general assembly shall point out the mode of correcting errors and appeals, which shall extend as far as to empower the judges to direct a new trial by jury within the county where the action originated, which shall be final." "Courts-merchant shall be held as heretofore, subject to such regulations as the general assembly may by law direct.

"The judges of the superior court, and attorney-general, shall have a com- petent salary established by law, which shall not be increased or diminished during their continuance in office; and shall hold their commissions during the term of three years.

"All elections shall be by ballot, and the house of representatives, in all appoint- inents of state officers, shall vote for three persons, and a list of the three persons having the highest number of votes shall be signed by the speaker and sent to the senate, which shall, from such list, determine, by a majority of their votes, the officer elected, except militia officers and the secretaries of the governor; who shall be appointed by the governor alone, under such regulations and restric- tions as the general assembly may prescribe. The general assembly may vest the appointment of inferior officers in the governor, the courts of justice, or in such other manner as they may by law establish."

JUDICIARY ACT OF 1789.

The general assembly, which met in the fall of 1789, passed the well known judiciary act which has been ever since the framework of the judiciary system of the state. By it the assembly arranged: That from and immediately after the passing of this act, two fit and proper persons, duly qualified, shall be elected judges of the superior court, which judges shall have precedence according to the time of their election; that the judges of the said superior court, or any one of them, shall hold the said courts in each county twice in every year, at the respective times, and in manner following, that is to say, commencing in Camden and Washington, on the first Monday in January next, the Monday after in Glynn and Greene, the Monday after in Liberty and Franklin, the Monday after in Chatham and Wilkes, the second Monday after in Effingham and Richmond, and the Monday after in the county of Burke, and that the counties from Burke to Camden, inclusive, be the eastern district, and the remaining counties the western district; and the second term shall commence on the first Monday in July next thereafter in Camden and Washington, and be continued throughout each district in the same rotation as directed in respect to the fifth circuit; that the said superior court shall have full power and authority to exercise jurisdic- tion in and to hear and determine, by a jury of twelve men, all pleas, civil and criminal; and all causes of what nature or kind soever, according to the usage and custom of courts of law and equity (except such as are hereby referred to inferior jurisdiction), on the days and times hereinbefore mentioned; and shall consist of at least one or more judge or judges; that the judges of the said superior courts shall be, and they are hereby vested, with full powers to regulate the proceedings in said courts; and to make and establish all necessary rules for the orderly conducting of business therein, according to law, and the usage of courts, and shall have power to impose and administer all necessary oaths or affirmation, and to punish, by usual fine or imprisonment, at the discretion of the judge or judges presiding, all contempts of authority in any cause or hearing before the said court.

And it was further enacted that no person should be allowed to practice or

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plead in any of the superior or inferior courts, until examined in open court and admitted by one or more of the judges of the superior court.

SUPERIOR COURTS.

Here we find the beginning of the circuit system of our state; two circuits, eastern and western, and but two judges, with power to hold court in any one of the counties, together and separately. And so they considered the act, because we see Judges Osborne and Walton sitting together in Richmond county as early as Jan. 1, 1790, and after that time either judge sitting in either county, or both together.

Rules were to be made by them and rules they made, the first rules governing the superior courts of this state made in Richmond superior court on Jan. 1, 1790, by Walton and Osborne, judges, and on Jan. 18, 1790, by the same judges in Chatham county, as the diligent student may still find in the records of the superior courts of those counties. No more chief justices until a supreme court was established by another authority in 1845.

This method of administration of justice in the little state worked smoothly enough for the time being, there being no appeals or writs of errors to any other court, and the two judges making final decisions in all causes before them, being the courts, having all judicial power.

MIDDLE CIRCUIT CREATED.

. No other court or body had appellate jurisdiction of any nature over the two judges of the two circuits until 1797. Then the middle circuit was made out of the counties of Burke, Screven, Montgomery, Washington, Jefferson, Warren, Richmond and Columbia, and three judges were demanded. It was provided that they should preside in each circuit alternately so that no two terms should be held by the same judge in the same circuit successively.

APPELLATE PROCEEDINGS.

Something appellate was also arranged in this form:

That the judges, attorney-general and solicitor shall meet annually at Louisville on July 10, for the purpose of forming rules for the government of the superior court, determining on such points of law as may be reserved for the argument, and may require a uniform decision, and for giving their decisions on such constitutional and legal points as may be referred to their consideration by the executive department. Provided always that nothing herein contained shall extend to or be construed to authorize the judges to enter upon any proceeding which may affect any cause in its progress to final decision agreeably to the con- stitution in the county wherein the defendant or defendants reside; nor shall any order or decision of the said judges be promulgated or tend to preclude the ad- mission of any new evidence which may arise in the progress of any cause prior to the final decision and entering upon judgment thereon in such county; very feeble appellate power this, but something at least toward uniformity and com- parison of thought.

SUPERIOR COURT JUDGES.

Before 1797 the superior court judges of Georgia who held the whole judicial power since chief justices ceased can easily be named. First came George

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Walton, always justly in some office or other and much sought after in all affairs of the state, judge from the beginning of 1790 to the end of 1793. With him for a short time only was Henry Osborne until 1791. The latter leaving the bench finally in that year, his place was filled by Ex-Chief Justice Houstoun, will- ing to sit again as Ex-Chief Justice Walton was doing, and Osborne had done, and judge until 1796. William Stith followed Walton in 1793 and was again succeeded by Walton in the same year, the reasons for these changes not appear- ing. We find both Walton and Houstoun out, and William Stephens and William Few in their places in 1796, the year before the middle circuit was created. From 1797 their names are all known and printed, and we have given them to the inquisitive reader in another place .*

SUPERIOR COURT DAYS.

The judicial history and methods of Georgia are matters of no note from 1797 until the establishment of a supreme court. The years intervening between 1797 and 1846 witnessed the peaceful growth and steady progress of the state from the feebleness of a colony into the power of a full-grown commonwealth. They saw the judicial territory gradually expanded from two circuits into eleven. The Ocmulgee circuit was created in 1813, the southern circuit in 1819, the northern and Flint circuits in 1822, the Chattahoochee in 1826, the Cherokee circuit in 1832, the Coweta in 1833, and the southwestern circuit in 1840, each marking development and progress. They witnessed the quiet submission of a large popu- lation to a system of judicial decisions without the possibility of review, except in Federal matters-a system which would now be rejected by a civilized people as impossible, because of the premium thus held out for the arbitrary exercise of power. And yet no discontent arose nor is there a trace of bitterness that has come down to us. On its face it speaks most highly for the characters of judges and people of that day, that, under conditions which we would now regard as intolerable, there was no revolt of bar or suitors, no proposed impeachment, no heated controversies. Nothing happened of any sort indicating criticism of judicial methods until, without agitation or noise, the state came to see that no judge ought to be entrusted with arbitrary power without hazard of review, and out of that thought established a supreme court.

NO SUPREME COURT.

It would be an interesting inquiry to go into this subject of the contentment of the people of Georgia with the exercise of judicial authority by a single judge. Doubtless Walton and Houstoun and a few successors had made such lodgement in the public confidence that their decisions were abided by without question, but, as will be seen by examination of the list of judges, their successors, with some exceptions, were men of no especial note, and with names that did not universally commend them to implicit obedience. Most likely the men who exercised the voting powers of the state were not informed in such matters, or imbued with any perception of the benefits to be derived from careful revising tribunals. Possibly again, one or two generations were required to pass away before the new men could naturally free their minds from the trammels of the old colonial methods, which involved the exercise of the same judicial power by one man. But, whether it was from habit or ignorance, the fact remains that Georgia woke very slowly from the sleep which followed the revolutionary struggle, during which

*See appendix for list of judges.

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time we can well fancy that many sorts of laws were administered in the various circuits. The evils of the system are well set forth in a message from Gov. Forsythi to the legislature of 1828:

"The condition of the judiciary requires your most serious attention. Under the present arrangement of eight judges of the superior courts, each confined to the circuit for which he was elected, supreme in his authority, not bound by the decisions of his predecessors or contemporaries, and not always by his own, which will be in their turn disregarded by his successor, there can be neither uni- formity nor certainty in the laws for the security of the rights of persons or property. It is an awful reflection that property, life, liberty and reputation are with us dependent upon the decision of a single judge, uncontrolled and uncon- trollable within his circuit, and not always distinguished for ability, intelligence and integrity. The confusion produced by contemporary contradictory decisions every day increases; property is held and recovered in one part of the state, and lost in another part of the state, under the same circumstances, rights are asserted and maintained in one circuit and denied in another in analogous cases.

"So much depends upon the opinion of a presiding judge that suits are matters of speculation and management. The most astute lawyer, scrupulously con- scientious in the advice given to his clients on cases submitted to him, can only inform them what will be the result if actions are brought and decided during the term of the then presiding judge. Suits are brought or postponed, pressed to trial, suspended or delayed by the parties, according to the known or supposed opinion of the presiding judge and the nearness and remoteness of the time when a new election of judges must occur. We have all the complicated judicial ma- chinery for the correction of erroneous judgments. Appeals, writs of error, motions for new trial and in arrest of judgment are used as if in mockery, since the appeals are tried, the writs determined, the motions decided by the same judge whose erroneous judgment is to be corrected, arrested or set aside.

"All the delays of the English system are permitted, but time only is gained or lost, unless, indeed, the presiding judge has a mind of extraordinary vigor and magnanimity capable of discovering and prompt to confess its errors, or death or a new election removes him from his place. The destruction of this judicial octarchy by the substitution of a single supreme judge, whose decision should govern in all circuits, would be an important improvement. It is not necessary to vest such tremendous power in the hands of one individual. The object to be accomplished can be attained by less dangerous means. The most simple and obvious remedy is the establishment of a court for the correction of errors, etc. This remedy cannot, in my judgment, be applied without a change in the consti- tution, which requires that 'errors shall be corrected and new trials determined in the superior court of the county in which the action originated.' Under this clause of the constitution, however, conventions of the judges have been re- quired, and in these properly regulated, a palliative may be found for the existing disorders, until a radical cure can be effected by an alteration of the constitution."

CIRCUIT RIDING.

Still, subject to this difficulty, this part of the judicial life of Georgia is that which is to-day more full of interest than any other. The best lawyers lived of course in the larger towns, and traveled the circuit with the judge as do the bar- risters of England. While they accepted retainers in other circuits, as a rule, they adhered to their own circuits. There being no railroads they rode together to the county towns, and there stayed until court was over. They slept together,

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and ate together, walked together and joked together. No one was free from their jests and pranks, not even the judge himself. Time and space are not given for the recording of the riding of these circuits-they would fill many vol- umes-and even now the oldest Georgia lawyer looks back with a laugh and a sigh to those merry days of his legal life. Obliged to argue cases in all their various phases without assistance of libraries on the spot, one might have sup- posed that the Georgia lawyer of 1820 was of inferior learning because his argu- ment did not smell of the lamp of the night before, and because the table before him was not burdened with calf bound volumes. But such was not the case. The library of the lawyer of those days was very small in comparison with the libraries of this book-producing age. It consisted mainly of Coke and Black- stone and Fearne, and a few others of the older writers, together with the com- mon law, equity, and exchequer reports of England, and the supreme court reports of the United States. Some of them also had such reports of the eastern states as were then being given. But what they had they knew. They had to use their knowledge on the instant, and without reference to digests. A point being sprung, they must know the law and the cases, or the readiest or most logical man would go down before his well-equipped adversary. There was no time then to search through encyclopaedias of law, and to hand in briefs the next week. The student of law studied his profession laboriously, and while he was at home did not cease to study and review the cases. When Berrien or Law or Tom Cobb or Andrew J. Miller arose, the adversary who was superficial had a bad quarter of an hour. Thus there were great lawyers in Georgia in those days, as good, I fancy, as have ever been since with all our libraries and all our digests. The experiences of the lawyers on their circuits were often very amusing. The court houses being located often in country villages, and not seldom in spots that could not have been dignified with the name of village even, their fare was quite precarious; and often in the matter of decent cleanliness, taverns, where they boarded on circuits, required education. Judge Andrews says:

"Most inn-keepers, after a few circuits, learned to have water, clean sheets and scalded bedsteads at the beginning of every court, and clean towels in the rooms every morning; though I heard of a case in the Cherokee circuit, not many years since, where a landlady, in the process of learning, declared that 'these lawyers must be a dirty set of fellows, as they will not use the same water and towels after each other, for I can wash my four children in the same water and wipe them with the same towel, and God knows they are dirty enough.'" But, take it all in all, the old Georgia lawyer looks back upon these days as the school boy does upon his spent vacation. Let us see who some of those old lawyers were.

JOHN M'PHERSON BERRIEN.

John McPherson Berrien, who was judge of the eastern circuit in 1810, was born on Aug. 23, 1781, in New Jersey, the son of Maj. John Berrien, a revolu- tionary patriot. His birth occurred in the house formerly occupied by Gen. Washington, whence he sent his farewell address to his army. It so happened to Judge Berrien that not only the place of his birth and his father's position, but all the circumstances of his ancestry were such as to create that aristocratic feeling which never left him. When the edict of Nantes was revoked in 1685 his ances- tors, being Huguenots, fled from France, and sought shelter in Holland. They came from that country to this, and settled in New Jersey, where his grand- father, John Berrien, became judge of the supreme court of that state. His father was not only an officer in the revolutionary war, but one of distinction. Georgia can justly claim as her son the distinguished subject of this sketch, as

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his father removed to this state while he was little more than a baby. The educa- tion of the son was most carefully directed both in New York and in New Jersey. It is said of him that he was always the brightest pupil in his school, and easily at the head of every class. He graduated at Princeton at the early age of fifteen years, and read law in the office of the Hon. Joseph Clay in Savannah, and was admitted to the bar in 1799 before he reached his nineteenth year. He immediately began the practice of his chosen profession, and from the outset was marked, and gave strong promise of the eloquence which he later attained. . Precocious in marriage as he had been in education, he took his first wife at twenty-two years of age. He was elected solicitor-general in 1809 and the next year became judge of the eastern circuit, which office he held until 1821. While on the bench he delivered before the convention of all the judges at Augusta his opinion as to the unconstitutionality of the "alleviating law." In this judgment he was enabled to display the firmness of conviction which always subsequently guided his actions. In the war of 1812 Judge Berrien was elected to the command of a regiment of cavalry watching the British from St. Simon's island. No oppor- tunity, however, for an engagement offered itself, and the war closed without an occasion for the usefulness of his military ardor. Nevertheless, as an officer he was entitled to credit for all proper energy and military zeal.

Senator from Georgia .- He was elected to the legislature in 1822, and was chairman of the judiciary committee, in which capacity he introduced the reso- lution under which Schley's Digest of Laws was authorized. His reputation was so much increased by his handling of his committee that he was elected to the United States senate, and took his seat as a member of that body March 4, 1825. He was then in the forty-fourth year of his age, and made a most favor- able impression in the senate at once by his acuteness and thoughtful attention to all matters of importance, and his eloquence charmed those who heard him. He was so very youthful in appearance that Chief Justice Marshall styled him "the honey-tongued Georgia youth." Much has been written and said of the eloquence of Judge Berrien, and when it is remembered that there were many eloquent men among the statesmen of that day, his high position among them cannot be overrated. His style and language were so beautiful, his voice so musical, and his manner so graceful, that he was called the American Cicero.

Attorney-General .- On the election of Gen. Jackson to the presidency he ten- dered the office of attorney-general to Judge Berrien, who resigned his seat in the senate and entered the cabinet in 1829. This cabinet was dissolved in 1831 by the resignation of the greater part of its members on account of the famous Eaton difficulty.

Dissolution of Jackson's Cabinet .- The cause of its dissolution was absurd enough to have been translated into opera bouffe. Maj. Eaton, the secretary of war, was the possessor of a wife, well known in her youth in Washington, where her father kept a tavern. Things were said of lively Peg O'Neal-true or not- but such things as ordinarily exclude a lady from social life. Even re-baptism by marriage with the president's senatorial friend could not wash her reputation clean, therefore society rebelled, and left her out. To the president the matter went, probably represented by Peg in tears. He had known her as a girl at the tavern. Her husband was his friend. Enough, and more than enough. Of course society falsified, and with many "by the eternals !" the thing must be made straight, and society must welcome her. But society, president or not, was will- ful. President got to roaring. Dutch minister's wife would not sit by Peg, indeed! Would send Dutch minister home, but for reasons. Our own faithful niece, presiding in the White House, will not call. Go home to Tennessee then;

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Memoirs of Georgia; containing historical accounts of the state's civil, military, industrial and professional interests, and personal sketches of many of its people. Vol. II, Part 39

Author: Publication date: 1859 Publisher: Atlanta, Ga., The Southern historicl association Number of Pages: 1166

Author:
Publication date: 1859
Publisher: Atlanta, Ga., The Southern historicl association
Number of Pages: 1166