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 41

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

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FIFTH PERIOD. GEORGIA UNDER A SUPREME COURT, 1846-1895.

We come now to the point in the history of the state when it was last seen by the people that the arbitrary power of a single judge must have its check by the revision of another tribunal, and to the establishment of its supreme court .. In 1835 the constitution was amended, and the supreme court authorized the following provision: "The supreme court shall consist of three judges, who shall be elected by the legislature for such term of years as shall be prescribed by law, and shall continue in office until their successors shall be elected and qualified, removable by the governor on two-thirds of both branches of the general assem- bly for that purpose, or by impeachment and conviction thereon. The said court

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shall have no original jurisdiction, but shall be a court alone for the trial and correction of errors in law and equity from the superior courts of the several cir- cuits, and shall sit at least once a year, at a time to be prescribed by law, in each of five judicial circuits to be hereafter laid off and designated by the legis- lature for the purpose, at the most central point in such judicial district, or at such other point in each district as shall be by the general assembly ordained, for the trial and determination of writs of error from the several superior courts included in such judicial districts." Although this amendment would seem to fully authorize the establishment of a supreme court, effect was not given to it until Dec. 10, 1845, and not until the people had in 1843 reaffirmed their desire for a supreme court. Into the causes of this delay it is not necessary to examine, but the supreme court, as now constructed, has always been traced, so far as its birth is concerned, to the constitutional amendment of 1843, and not to that of 1835.

The act which carried the amendment of the constitution into effect reads partially as follows :

"I. Sec. I. Be it enacted, That in pursuance of the first section of the third article of the constitution, there shall be, and it is hereby established, a court for the correction of errors, to be called the supreme court of the state of Geor- gia; the said court shall consist of three judges, who shall be elected at the present session of the general assembly; one, for the term of six years; one, for the term of four years; and one for the term of two years, during which terms they shall respectively hold their offices, unless sooner removed, in the manner pointed out by the constitution. No person shall be eligible to the office of judge unless he shall have been duly admitted and licensed to plead and practice in the courts of law and equity in this state, ten years, at least, prior to his election.

"2. Sec. 2. The said supreme court shall be holden at the times and places following, to-wit: On the second Monday in January and third Monday in June, in each year, for the first district, to be composed of the eastern and southern judicial circuits, alternately at Savannah and Hawkinsville. On the fourth Mon- days in January and July in each, for the second district, to be composed of the southwestern and Chattahoochee circuits, alternately at Talbotton and Americus. On the second Mondays in February and August in each year, for the third dis- trict, to be composed of the Coweta and Flint judicial circuits, alternately at De-

catur and Macon. On the fourth Mondays in March and September in each year for the fourth district, to be composed of the western and Cherokee circuits, alternately at Cassville and Gainesville. On the first Mondays in May and No- vember in each year for the fifth district, to be composed of the middle, northern and Ocmulgee judicial circuits, at the city of Milledgeville."

Since the organization of the court under this provision it has remained sub- stantially as created by that act, the chief change being in the concentration of the court and its records at Atlanta, the seat of government, thus reversing the peri- patetic manner in which the court had been held from circuit to circuit.

THE NEW SUPREME COURT.

We have thus arrived at the time when there was again a chief justice in Georgia-fifty-six years since the last one sat-now with two associate justices.

JOSEPH HENRY LUMPKIN. .

The first chief justice was Joseph Henry Lumpkin, who was elected with Hiram Warner and Eugenius A. Nisbet, they being associate. justices. For the

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purpose of inaugurating the new court it would have been difficult to have found in this state men better qualified. Judge Warner may be said to have been the exponent of hard common sense on the bench; Judge Nisbet full of profound erudition in decided cases; while Judge Lumpkin was the man above all others to carry the courts forward in the line of progress and simplification favored by the people, but distasteful to the older lawyers. The profession of law is always conservative, and prefers to abide by decided precedents rather than to enter upon untried paths. The tendency of the age has been and is to curtail words and simplify proceedings; but in almost every state attempts in that direction have been met by "strict construction" from the bench under the specious insistence of the side of a case benefited by that method. The people of Georgia desired the simplification sought in other states; but it required all the force and authority of Judge Lumpkin to give effect to his desire. It may well be conceded that but for his determination in this respect the simplifying statutes would have been construed and chipped away until the spirit embodied in them was wholly dead.

Doubtless there was somewhat more of oratory in his decisions than is usually found in reports, and it is possible that they are open to the criticism of being emotional. But the service that he performed to the state from 1846 to his death in 1867 was invaluable, and cannot be too highly rated. He cut away the bonds of words by which legal measures were fettered, and for all time set the precedent for liberal construction of remedial statutes in the practice of law.

HIRAM WARNER.

Judge Hiram Warner has already been mentioned as appointed associate justice in 1846. He remained on the bench until he resigned in 1853; and was again appointed-this time chief justice-in 1867. Again he took his seat as associate justice in 1869; but upon the resignation of Chief Justice Lochrane in 1872 he again became chief justice and remained so until he resigned in 1880, dying in 1882. He was a man of profound common sense, well versed in the law; a man of great firmness, inflexible in his opinions and methods, passionately attached to the settled principles of law and to the constitutions of the nation and state; disdainful of political views as controlling legal construction, and altogether scornful of expediency and inconsistency. We shall see more of him in another place.

EUGENIUS A. NISBET.

A glance at the decisions of the supreme court from 1846 to 1853 will show what an admirable lawyer Judge Nisbet was. Always safe and sound, his opinions evince hard study and thorough examination. Judge Nisbet was born in 1803, and lived eighteen years after he left the bench, dying in 1871. Nothing is more curious in the history of Georgia than that the two most ardent and stalwart champions of secession in the convention of 1861 were Eugenius A. Nisbet, the venerable ex-justice and conservative jurist, and Thomas R. R. Cobb, Georgia's greatest lawyer-both men of profoundest piety and submission and devotion to the commands of Christ.

EBENEZER STARNES.

Judge Warner was succeeded in 1853 by Ebenezer Starnes of Augusta. Here again we have on the bench a most admirable lawyer of the old school. Judge Starnes had a large practice, from which he was tempted to go to the bench, and which he was able to regain fully in 1856 on his return to the bar. His decisions,

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like Judge Nisbet's, disclose the well-equipped jurist. Judge Starnes died about 1870. It was said of him by men of his day, that he was cold and indifferent to others. How little we know of our fellow-nian is illustrated by this case. The writer remembers well a young man who went to Judge Starnes for advice as to studying law. There was no tie of blood or marriage that called for especial sympathy or help; but Judge Starnes at once put everything aside and went into the whole business; ending by urging the young man to come to him for examinations; and then took him out to walk. Passing a book store the judge carried his young friend in and introduced him to the owner. "Mr. Richards," said he, "this young gentleman may want some books. Let him have all he wants and send the bill to me." Then to his young friend confidentially, "You see, you young fellows have not much since the war, and I want you now to buy a full library-all the books you need-and some day you will make a big fee and can settle with me." And yet to this poor, blind world he passed as hard-he, whose heart was big enough to have furnished a dozen ordinary men.

HENRY L. BENNING.

Judge Nisbet was succeeded in 1856 by Henry L. Benning. Judge Benning sat until 1860. He entered the Confederate army, served as brigadier-general and died in 1875. He was much better fitted for the practice of law than for the supreme bench. At the bar he was adroit and eloquent and no one was more beloved and admired.

CHARLES J. M'DONALD.

Judge Starnes was followed in 1856 by ex-Gov. McDonald, who was one of the ablest, if not the ablest judge that Georgia ever had, uniting the qualities of statesman to that of jurist. He was born in Charleston, S. C., in 1793. He early became one of the democratic party of the state, and was elected governor in 1839. After his retirement to private life he resumed the practice of law and successfully followed it until he went to the supreme bench, where he remained until his resignation in 1859. He lived only a short time after leaving the bench, dying in 1860. His decisions are models of learning and forcible reasoning.

LINTON STEPHENS.

The seat of Judge McDonald was filled in 1859 by Judge Linton Stephens. Judge Stephens was always a better lawyer than his eloquent brother, and his tenure of the bench was a source of satisfaction to the bar. He was born in 1823; practiced law in Hancock and adjoining counties; and was considered one of the best equipped jurists in the state. He remained on the bench until his resignation in 1860. He died in 1872.

RICHARD F. LYON.

Judge Lyon was elected to the bench in 1860, following Judge Benning. He was a big burly man, full of energy and industry, but, like Judge Benning, was never as much at home on the bench as he was at the bar. He was born in 1817 and remained on the bench from 1860 until 1866, when, his term expiring, he resumed practice, and followed it as laboriously as the youngest member until he died in 1892.

CHARLES J. JENKINS.

We have in Judge Charles J. Jenkins another of Georgia's great judges-one who like McDonald was as much statesman as lawyer. Gov. Jenkins was born in Beaufort district, S. C., and being bred to the bar, as usual exhibited a taste for

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political life. But he was on the whig side-the losing side in Georgia politics in those days-and although his reputation for ability, eloquence, learning and integrity became very great, he played no successful part in Georgia politics until after the civil war. In 1860 he was appointed to the supreme bench in the place of Judge Stephens and there displayed his powers of logic and great erudition of law, until he was made the first governor of Georgia elected by the people upon the re-establishment of civil government in 1865. When under the reconstruction imeasures of congress that civil government was again swept away, Gov. Jenkins, with perfect dignity and the abiding respect and applause of his people, retired from the governor's chair never again to appear in public life. His death occurred in 1883.

DAWSON A. WALKER.

Upon the expiration of Justice Lyon's term of office in 1866 he was succeeded by Dawson A. Walker, one of the most admirable judges who ever sat upon Georgia's supreme bench. Judge Walker came originally from Tennessee, where he was born in 1819; but in 1845 removed to Murray county, Ga., and entered upon the practice of law. After having held the office of judge of the Cherokee judicial circuit, he was elected to the supreme bench of Georgia, but remained but two years on the bench, his term expiring in 1868. Judge Walker was pre- eminently a lawyer, full of profound learning in his profession, and gifted with very clear methods of expression. The end of his term upon the bench was a misfortune to the state, for she lost thereby one of the best judges who ever served her. After leaving the bench he returned to the practice of law in Dalton, Ga., where he remained the object of the respect of his fellow-citizens until his death in 1881, notwithstanding the adoption by him of political views hostile to the white majority in the state, and his quiet life was broken only by his candidacy for the governorship of the state in 1873, and by the filling of a Federal office for a short time.

IVERSON L. HARRIS.

Iverson L. Harris was elected to the bench in 1866, and remained until 1868. He was born a Georgian and entered Franklin college (now the state university) in 1820 and was graduated with honor in 1823. He was admitted to the bar after a short course of study and in 1859 was raised to the bench of the superior court of Ocmulgee circuit, where he remained until he was elected to the supreme bench. He died in 1876, full of years and honors, having attained the good old age of three score and ten. Judge Harris was a bold and rapid thinker, and with his large intellectual endowments, legal learning and innate sense of justice, could not have failed to attain success on the bench of the highest court of the state. He held with even hand the scales of justice and was far above the plane of favoritism or bias toward the litigant or advocate.

JOSEPH E. BROWN.

In 1869 ex-Gov. Joseph E. Brown was elected chief justice to succeed Chief Justice Warner, who thus became an associate justice only. Gov. Brown was governor of the state at the commencement of the civil war, and was the cham- pion of the democratic party in Georgia and an ultra secessionist. After the war he was elected chief justice by the republican legislature, having associated him- self with that party in the state. Judge Brown was too much in political life and high office to have been at any time a very profound lawyer. His chief charac-

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teristic was astuteness in public-perhaps also in private-affairs. He had that keen, cool judgment which led him to see intuitively what course would be most profitable to him from the standpoint of worldly wisdom. That judgment was not as useful always to his fellow men as to himself, or it is possible that Georgia would not have seceded, that the dreadful civil war would not have been. In his own ideal of life he was pre-eminently successful. From a superior court judge- ship, in which he displayed neither great learning nor eloquence, to become the most popular governor of his state; from a mere governor of a state to become the most potent instrument in lighting the torch of civil war, and-next to Davis- the most famous civilian in the south; from the head of a seceding state to become the persistent opponent of the Confederate government in its struggles for life, and to have endeared himself to thousands of his people by his resistance to the Confederate congress; from a captive governor of a belligerent state to become - the acceptor and champion of the conquerors of his people; from a secessionist democrat to become the republican chief justice of the state; from the republican office-holder and the name upon which the people spat, to become the democratic senator, revered and all powerful until he died; and, above all, in the midst of ruined fortunes and beggared respectability, on every hand around him, to have grown richer steadily and unceasingly, not only in wisdom and honors, but in money; and from a poor country judge to have died one of the wealthiest men in Georgia-surely here was success indeed, and that of such an extraordinary kind as pointed him out the possessor of abilities not every day or everywhere to be found.

If, at the end of the civil war, the people of Georgia could have been imbued with the spirit of Gov. Brown, and could have followed his example in every detail; if a whole people could have been found capable of cool calculation; if they could have turned from bitter war to warm friendship with their enemies; if they could have divested themselves of all memory of the useless spilling of the blood of gallant sons and brothers; if they could have ignored the manner in which the struggle had been for many years steadily forced upon the south; if from the graves of the slain and the smoke of ruined homes they could have turned to embrace their conquerors and to advocate their measures; if, knowing the colored race as they did, they could not only have cheerfully acquiesced in their freedom, but could have welcomed them into the ranks of equal citizens, and could have looked forward with willingness to the exercise of a voting and governing power which, in the nature of things, must be, for long years at least, a purchasable commodity, that people would have gone down to history as one so far devoid of the usual emotions of the human heart, or as far above them, that they could be classed only with the mythical races-the Cyclops and the Centaurs of the pre-historic world. It is essential that the reader should understand to some extent Chief Justice Brown's career to fully comprehend an episode that occurred between him and Judge Warner while on the same bench in 1869-a fierce conflict that can be found in the decisions of that time-such a conflict as never happened before and, it is to be devoutly hoped, will never happen again; a conflict in which the dissenting justice, Warner, expressed himself as unwilling to be "embalmed in judicial infamy," and in which the chief justice replied by repelling the idea of his having "pharasaical pretensions;" a conflict which the bar regarded with horror and disgust. Yet it grew out of the very qualities of Chief Justice Brown and Justice Warner, to which allusion has been made. The war had ended in utter ruin to the people of the south. Losing a large part of their possessions, they still owed debts-in many instances to northern people. The legislatures, accepting the theory of repudiation enforced upon them by congress

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in certain classes of debts, were inclined to go farther in the same direction between man and man than was compatible with constitutional prohibitions. Various statutes were passed looking to the relief of the debtor class, and affecting in terms the remedy, but really striking at the cause of action. All such legisla- tion found in Warner a stern opponent whenever it contravened the constitution of the United States and practically impaired the obligation of contracts. Law- yer in all his thoughts, he could not bring himself to ignore the law because of wish to relieve. On the other hand, the chief justice, facile and expedient, was not only in hearty sympathy with the purpose of the statutes, but was abundantly willing to give effect to them whenever, by any plausible reasoning, they could be sustained. The angry spirit of the old-time lawyer rebelled against subter- fuges and sophisms, as well as against the politician giving utterance to them, and in his wrath he struck the bench itself, and the chief justice replied by sneers and disclaimers that were unworthy of that bench. The right of the matter was demonstrated by the supreme court of the United States, which sustained Judge Warner in most of his dissents, but the temper of the controversy will always remain in the Georgia reports to puzzle the students as to the real cause of so much judicial heat. After his retirement from the bench Gov. Brown went to the senate of the United States, where he remained until shortly before he died. No man ever lived in Georgia whose course and methods were in the end more con- clusively successful.

HENRY K. M'CAY.

Judge Henry K. McCay, who became associate justice in 1869 and resigned in 1875, was one of the acutest minds ever upon that bench. He loved reasoning for its own sake, and delighted in the subtlest forms of logic. A fine lawyer, he gave great satisfaction to the bar, while it may be regretted that he devoted his best powers to sustaining the unconstitutional legislation that Judge Warner as steadily opposed. But in those heats that then and there arose on the bench, Judge McCay bore himself calmly and with dignity. He was always regarded as the jurist of the supreme court while he was on it, and his resignation was deeply regretted. After that happened he was appointed district judge of the United States for the northern circuit, which position he filled until he died in 1886.

He was born in Northumberland county, Pa., on Jan. 8, 1820. He grad- uated from Princeton college in 1839 and shortly thereafter came to Georgia to live. He studied law in the office of Chief Justice Lumpkin, and was admitted to the bar in 1842. In the war between the states he served in the army of north- ern Virginia, under Stonewall Jackson, during several campaigns. At its close he was brigadier-general of state troops. He was a member of the convention which framed the constitution in 1868, and many of its wisest provisions were the results of his efforts and influence.

OSBORNE A. LOCHRANE.

Upon the resignation of Chief Justice Brown, Osborne A. Lochrane was ap- pointed chief justice, and filled that office for a short time, resigning in December of 1871 to re-enter the practice of law. Judge Lochrane was born in Ireland in 1829 and had all the traditional wit and humor of his nation. He came to New York in 1846 and traveled thence to Athens, Ga. While a clerk in a drug store he was encouraged by Judge Lumpkin to study law, in the pursuit of which he soon found success and eminence. He first practiced in Savannah in 1850, but went from there to Macon in the same year. In 1861 he was appointed judge of

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the Macon circuit, and was twice re-elected-afterward appointed judge of the Atlanta circuit in 1870. Adopting republican tenets, he was appointed the successor of Chief Justice Brown upon the supreme bench. Judge Lochrane was much mnore ready and eloquent than profound. No one was ever a better companion, and no one ever encountered thie vicissitudes of life with a more cheerful or a brighter spirit. After he left the bench he returned to the practice of law, in which he remained until his death in Atlanta in 1887.

WILLIAM W. MONTGOMERY.

Judge Warner becoming chief justice in 1872, William W. Montgomery, of Augusta, was appointed associate justice in his place. This able and scholarly judge is still living, and cannot, therefore, be further mentioned in this sketch.

R. P. TRIPPE.

After the expiration of Judge Montgomery's term of office in 1873, Robert P. Trippe was elected to succeed him. Judge Trippe sat until he resigned in 1875. He was one of the best of a not unusual type of men in Georgia-more the advo- cate than jurist-more politician than lawyer. Eloquent and practical, his true position was rather before the jury than on the bench. But his common sense, straightforwardness, and conscientious devotion to his work made him a most acceptable judge, and his resignation was greatly regretted.

LOGAN E. BLECKLEY.

Judge Trippe was succeeded by Logan E. Bleckley. Judge Bleckley had been long one of Georgia's most distinguished lawyers when he went on the bench, and since that time has filled a prominent place in the public mind. He resigned in 1879 because of overwork, but was appointed chief justice in 1887, which place he filled until he resigned again from the same cause in 1894. He is still living and further comment would not be in place.

JAMES JACKSON.

At the same time that Judge Bleckley was elected the other vacant seat was filled by James Jackson, who subsequently, upon the resignation of Judge Warner in 1880, became chief justice -- so remaining until his death in 1887. Judge Jack- son came from stanch Georgia ancestry. He was the grandson of the Senator Jackson-afterward governor-who so bitterly fought the Yazoo fraud and over- came its friends. Judge Jackson was a man of great warmth of heart and kindli- ness of feeling and received and retained the loyalty and affection of the entire bar of the state.

MARTIN J. CRAWFORD.

Upon the resignation of Judge Bleckley in 1880 Martin J. Crawford was appointed in his place. Judge Crawford was born in Jasper county on March 17, 1820, and died in 1883. He began to study law at an early age and was admitted to the bar by a special act of the legislature before he was nineteen years of age. In 1854 he was appointed judge of the superior court of the Chattahoochee circuit. In 1855 he was elected to congress. He was one of the delegates from Georgia to the provisional congress of the Confederate States at Montgomery, Ala. He felt it his duty to serve his country in war as well as

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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 41

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