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 42

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 42

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in peace, and raised a regiment of cavalry and was elected its colonel and remained with it until he was captured. Judge Crawford was an able and astute lawyer. Whatever was before him he gave it his best efforts. His decisions are clear and concise and show both his learning and labor.

WILLIS A. HAWKINS.

What has been said of Judge Trippe is equally true of Judge Hawkins. He was appointed in 1880 to fill a short term made vacant by the resignation of Judge Warner and the promotion of Judge Jackson to the chief justiceship. It was his misfortune to be on the bench for less than four months, but in that short period he made a good record as the reports will show. He was born in Madison county, Ga., Jan. 15, 1825, was admitted to the bar on May 7, 1846. When the civil war began he raised a company which became a part of the famous Twelfth Georgia, of which he became the colonel. He died on Nov. 28, 1886, and left a memory as an eloquent and able advocate, a fair and fearless jurist, a true and faithful friend.

ALEXANDER M. SPEER.

Judge Alexander M. Speer, who is still living, was elected in 1880 and served but a short time-until 1882.

SAMUEL HALL.

In the person of Judge Samuel Hall the supreme bench acquired one of the best lawyers in the state. He was elected in 1882 and died on Aug. 28, 1887, while on the bench. He was born in Chester district, S. C., on Oct. 20, 1820. His father moved to Georgia in 1837 and he was graduated from Franklin college, afterward the university of Georgia, in 1841. He was admitted to practice of law in the superior court of Crawford county in 1842. He took some interest in politics, but the law suited the natural turn of his mind. He was eminently an upright judge and in searching for the truth and to arrive at the right he spared no time or trouble. It can truly be said of this eminent jurist, that he lived hon- estly, ill-used nobody and gave everyone his due, both as a man and as a judge.

M. H. BLANDFORD.

Martin J. Crawford was succeeded by Judge M. H. Blandford in 1883. His term expired in 1890 and he resumed the practice of law at his home in Columbus, where he still lives.

THE PRESENT BENCH.

This enumeration brings us to the present bench, composed of Thomas J. Simmons, who was first elected associate justice in 1887, and became chief justice in: 1894, on the resignation of Judge Bleckley. Samuel Lumpkin was elected in 1891; and Spencer R. Atkinson was elected in 1894. It would be a pleasant task to present the careers of these gentlemen, but one that must be denied the writer, in pursuance of the character and limitations of this sketch.

We cannot forbear, however, the expression of regret that the supreme court of Georgia is not placed in circumstances more in accord with the wishes of its members and the necessities of the bar and people. To-day, in the granite capitol, they examine the decisions in nearly a thousand cases a year, with the same assist- ance-and no more-than their predecessors had in 1846 when they revised one- fifth of that number. They are expected to hear, examine, study, decide, and

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write their decisions in such a number of causes as is beyond the power of any three or ten living men. Overworked-tasked beyond any human strength --- they go through their conscientious discharge of duty, hoping, almost beyond hope, that the people will devise some means of help, and so order their duties that they will be able to point to their work with self-approval, in that the work is not only done, but well done, to the satisfaction of the bar and the bench of other states.

GEORGIA UNDER A CODE OF LAWS.

The most important product of the bar of Georgia has been the code of the state-a measure, of course, ordered and approved by the legislature, but from beginning to end the work of members of the bar. The gravity of this under- taking will be more fully understood when it is known that it is the only code of its kind in the United States. In most states there are so-called codes of laws; which upon examination will be found to be but compilations of existing statutory laws. Very likely in most instances the compilers would have been daring enough to have attempted what was accomplished by the writers of the Georgia code; but apparently, and probably justly, they have doubted the extent of their powers, and have refrained from any other work than bare compilation. The writer remem- bers the desire in that direction of the codifiers of Maryland laws, who examined all accessible codes, approved of that of Georgia as the best code in the world, and regretfully decided that they held no such commission as that used by Cobb, Irwin and Clark.

Codification was not a new topic in Georgia in 1860. As far back as 1827 Gov. Forsyth had brought the matter to the attention of the legislature, pointing out that the eighteenth section of the third article of the constitution provided "that within five years after the adoption of this constitution the body of our law, civil and criminal, shall be revised, digested, and arranged under proper heads, and promulgated in such manner as the legislature may direct." To carry into effect this section of the constitution an act was passed by the general assembly on Dec. 6, 1792. Other acts having relation to the subject were consequently passed, but contemplating only codification of statute laws. Gov. Forsyth insisted that the authors of the constitution obviously contemplated the revision, digest, and arrangement of the written and unwritten law of the state; and that the terms "the body of our law, civil and criminal," were general, and comprehended within their scope the common law equally with the statute. He therefore urged the matter upon the attention of the legislature; but while it was duly referred, for some reason unknown it never found shape in any action.

The subject was revived in 1858 by George A. Gordon of Savannah. The circumstances cannot be better described than by the words of Judge Richard H. Clark, one of the codifiers himself.

It has proven fortunate for the state that by it legislation necessary to per- fect her political and judicial system has been secured, which, if done gradually, would not even now be done, perhaps never. Under this change of laws, making up of new laws, and repealing of old laws, there was a grave constitutional ques- tion, but fortunately, before it was made the code was adopted by the constitutions of 1861, then of '68, and repeated by the constitution of '77. At the time of the law providing for a code, there were but few codes in the United States. As I remember, five in number-those of Virginia, Alabama, Tennessee, California and Louisiana. Codes were not popular. Codes were deemed impracticable, to a particular extent impossible. Georgia had been a state nearly a century, and

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had not felt the need of a code. Prince's digest of 1837, succeeded by Cobb's of 1850, seemed all that was necessary, and when the legislature of 1858 made pro- vision for a code, and a code that would be such an innovation, the whole state was surprised. Indeed, the legislature was itself taken by surprise. The history of it is this: George A. Gordon was a member of the house from Chatham. He was a young lawyer, aged only twenty-eight years. He had married in Hunts- ville, Ala., and of course made visits to that place. There he intermingled with inany of the best lawyers of that state. He heard them extol the code of Ala- bama, adopted in 1852. He examined and fell in love with the Alabama code, particularly with its plan and style. He determined Georgia should, if he could accomplish it, have a code on the plan of the Alabama. He went further. He conceived the idea of codification of the common law of force in Georgia. In pursuance of this purpose you will find by reference to the house journal of 1858, that on Nov. 29, among other bills introduced by Mr. Gordon of Chatham was one to provide for the codification of the laws of Georgia. By that bill the pros- pective code was to be on the plan of the Alabama code, "which should as near as practicable, embrace, in a condensed form, the laws of Georgia, whether derived from the common law, the constitutions, the statutes of the state, the decisions of the supreme court, or the statutes of England in force in the state." The law also prescribed that the legislature was to elect three commissioners to execute the work. It is manifest from this statement that the design of the code, including the feature that distinguishes it from other codes, originated with Mr. Gordon. There is some doubt as to who is the author of the judiciary act of 1799, that then dis- tinguished Georgia from her sister states mainly by abolishing special pleading, but there is no doubt that George A. Gordon was the originator of the code of Georgia, and that his efforts and influence secured the law requiring it.

So much for the origin and design of the code. Now, as to its execution.

The commissioners elected by the legislature to compile the code were Iverson L. Harris, David Irwin and Herschel V. Johnson. Judge Irwin was the only one of those elected who consented to act, and with him were associated Thomas R. R. Cobb and Richard H. Clark.

THOMAS R. R. COBB.

Mr. Cobb was one of the most remarkable men of this or any other time. Born in Athens, Ga., in 1823, he was but thirty-nine years of age when he lost his life as a Confederate brigadier at Fredericksburg. To any one who lived in Georgia, and therefore, as a matter of course, knew Gen. Cobb's reputation at the bar in the time that he carefully eschewed public life; to those who knew of him as the grave professor of law in the state law school-to those who were aware of his part in the preparation of the incomparable code of the state-and all law- yers knew of it; to those who saw his enormous influence exercised in the affairs of the state in 1861, when enthusiasm had seized him and made his judgment captive; to all who knew, as nearly all did, that in talent, legal knowledge, indus- try and personal influence he was the admitted head of the whole bar of Georgia, it would seem almost incredible that this position was attained by Gen. Cobb before his fortieth year, in a state in which were such statesmen as Robert Toombs, How- ell Cobb, Benjamin H. Hill, Herschel V. Johnson, Alexander H. Stephens and Charles J. Jenkins, and such lawyers as William Hope Hull, William Law, Thomas E. Lloyd, Andrew J. Miller, Samuel Hall and William Dougherty. What a genius was there! What fertility of thought! What clearness of mind! What fairness of logic! What overwhelming power of application! For it is never to be gain-

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said that, as a jurist, in the highest sense of the term, Mr. Cobb was far above any lawyer who has ever lived in Georgia from its colonization down to the present time.

DAVID IRWIN.

With Mr. Cobb was also Judge David Irwin. This able man was born in Wilkes county in 1807, and died in Marietta in his seventy-ninth year. He was much before the public in his long life, but the greatest service that he ever did his native state was that which we are now considering. For many years a sound lawyer, his tenure of the superior court bench in the Blue Ridge circuit had familiarized him with the details of legal practice and judicial procedure, so that he went to his work fully prepared to do the portion thoroughly that might be entrusted to him. In addition to these mental qualifications he possessed very unusual common sense-a faculty much called upon in determining the vexed questions of pleading, which were thus submitted to the codifiers. The third gentleman who undertook and executed that work was Judge Richard H. Clark, of Atlanta-clarum et venerabile nomen-who lives to-day in a green old age the object of the unbounded respect and affection of his fellow citizens. Judge Clark has so charmingly described the production of the code that no apology is necessary for using his language:

"The commissioners soon met in Atlanta to agree upon the method of pro- ceeding and entered vigorously and sincerely upon the work. We parcelled it between us in this way: To myself was assigned part first, 'the political and public organization of the state.' To Mr. Cobb second and fourth parts, 'the civil code' and the 'penal laws,' and to Judge Irwin the third part, 'the code of practice.' The general preliminary provisions were made after the other parts were completed, and are the work of Mr. Cobb, amended and added to by the other commissioners. As each commissioner finished a title, he had two copies made and sent to each of the others, so each could examine the work of each, to be prepared with sug- gestions of changes when we met to pass upon the whole work. This making the first draft, and then two copies, was very laborious, and I had to employ an assistant to make the copies as I proceeded, so that when I was done the original copies would also be done. We had no shorthand or typewriting then, and every word had to be written in full and with the pen. Of the two years allowed I devoted at least one year in all exclusively to the code, but it was not consecu- tively done, except for three or four months at a time. When we had finished, in August, 1860, we met again at Atlanta and went through the whole work, sec- tion at a time. By working from 8 till I, and from 2 to 7, and from 8 to IO or II, or as long as we could, we finished by 12 o'clock Saturday night, having begun Monday morning. It was working more hours per day for several days than I have ever done before or since. Mr. Cobb seemed not in the least fatigued, but Judge Irwin on Thursday said that he could not appear at night any more, and if we insisted on meeting then we would have to go on without him. Mr. Cobb had an engagement the next Monday that could not be- postponed, and we had to proceed, for the engagements of each of us were such as to make another meeting, before the committee of the legislature would assemble the fol- lowing October, impracticable.

"As I said, we finished at 12 Saturday night, and I do not think that before or since I was ever so wearied mentally. Mr. Cobb seemed as fresh as the morn- ing we started. We conversed on the difference in our conditions, and he told me he had never felt weariness from mental labor; and no matter what engaged

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his mind, in five minutes after retiring at night he was asleep, that he carried no thought or trouble to bed with him, and that whenever he chose he could close his mind like shutting a book. He said before he slept that night he had to draw a short bill in equity to save the return day of a court in his circuit. He was the most perfect specimen of 'a sound mind in a sound body' I have ever seen.

"The next meeting of our commission was at Milledgeville, in October of the same year, before the joint committee of the legislature to examine and report upon the code. This committee, on the part of the senate, were Hines Holt, Daniel S. Printup and William W. Paine, and, on the part of the house, George N. Lester, Isham S. Fannin, William G. Deloney, Miles W. Lewis, Charles N. Broyles and Charles J. Williams. B. B. DeGraffenreid was elected secretary of the commission and committee.

"We went through the whole code, reading each section. Each commissioner read the sections of his part. There was opposition to some of the sections, but serious only occasionally; but the result was the whole work was accepted and adopted by the committee. Their clear, comprehensive and conclusive report to the legislature will be found in the preface of the original code of 1882. Hon. Hines Holt, of Muscogee, one of the senate's committee, an able lawyer, and one of the most graceful of men and fluent of speakers, scanned the work of the commissioners more critically than any other member. The commissioners, among themselves, concurred as to every law in the code except three. The dissenting one was myself. I made my objections known to the committee, but, after argument against me by Messrs. Cobb and Holt, my objections were over- ruled. Afterward the legislature sustained me by excepting one in the act adopt- ing the code. The other was soon repealed, and the last, though yet in the code, at section 2293, prescribing 'no abatement of rent' for destruction by fire or other casualty, is almost a dead letter, because the written contracts for rent have since become almost stereotyped to the contrary.

"What the most learned of lawyers said could not be done, has been done, and successfully done. That it has been successfully done is proven from the over- whelming fact that it has been on trial twenty-seven years and has been found adequate to every emergency. The credit of its distinguishing feature belongs to Gen. Cobb, as that was the part assigned to him and was solely his production, except as amended by the other commissioners. And likewise the part assigned to each of the other commissioners was exclusively the work of each, except as likewise amended. When completed, it was, as I have said, a code that filled the definition of true codification. Besides making a system out of the existing laws, both common and statute, it repealed old laws and enacted new laws, but so as to be consistent with the legislation of the past, and for the purpose of making that legislation more effectual and complete."

Thus the work was done, and Georgia received from these able and pains- taking men a written body of laws such as is possessed by no other state or people. That it should have been attempted at all was daring; and that it should have succeeded in anything like its perfection was marvelous, and one of the greatest triumphs of the mind of man. If these words be thought to be in any respect too warm, let the reader turn to other so-called "codes" in any civilization and in any age, and when he learns their inadequacy, and then recalls the various, the desultory, and the obscure sources of the laws now embodied in the code of Georgia, he will think the encomium passed upon it and upon its authors far too cold and feeble.

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THE BENCH AND BAR OF GEORGIA.

We have thus followed the career of the bench and bar of Georgia from Oglethorpe's little "town court" in Savannah, through the courts of the bailiffs- no bar as yet. We have seen the royal courts with their chief justices and their bar; the revolutionary courts and their chief justices; the superior court judges, supreme in authority; and we have traveled with the supreme court from its organization to the present time. We have seen the supreme bench filled by the best material that the state could offer, notwithstanding the enormous labor, and that the salaries are not more than those of many well-paid clerks.

We have found a governor of the state plainly reminding its legislature that the incumbents of the superior bench were "not always distinguished for ability, intelligence and integrity." But we have nevertheless noticed upon the bench many men of fine legal knowledge and luminous intellects, despite the fact that they are paid in so niggardly a fashion, that it is only surprising that they consent to fill the place. Finally we have traced the history of the greatest legal achieve- ment of this or any state, from first to last, the work of Georgia lawyers. But in all this there is little history of the bar. The bar has no history, because as a body it has no events. Unlike most bars, in Georgia it had its distinct birth, in the permission to use their professional knowledge and skill before the royal courts. From that time to the present the history of the legislature and of the bench of the state, is the history of the bar and has no separate existence, and it would be a task as fruitless of good, as difficult of execution to select from the mass of excellent lawyers who have lived in this state, and have aided in making its laws and in giving them force and construction, all those who have been distinguished in their generation by their especial qualifications and distinction.

Any close observer of the bar of Georgia will be struck at once with the characteristic of self-reliance and independence of thought that obtains every- · where. Having no system of leaders in cases, and every lawyer undertaking for himself to handle the business entrusted with him, a habit has been bred of close study, each for himself in his profession, and of dependence upon no external aid. The result necessarily is, that nowhere in the Union can be found a body of better prepared, more thorough, and more independent thinkers than in this state.

A very striking characteristic of the Georgia lawyer is his respect for the bench, and the consideration of the bench for the bar. In almost every circuit there are lawyers more than the equal of the bench in age, learning and abilities. Other result than this could not be expected, in viewing the fact that the incomes of the best lawyers far exceed the salary of the judge. But notwithstanding this difficult fact, the relations between the bench and the bar have always been self- respectful and considerate in the extreme. With very few exceptions the judges have never used their positions and authority so as to harass or mortify the counsel, and the low-bred coward and bully upon the bench is an unwonted sight; and so the bar have ever exhibited an unbounded respect for the judicial office and a desire to uphold the hands of the court. In the history of Georgia will be found no such things as accounts of tyrannical judges and of a subservient bar. But the bench and bar, each regardful of each other's duties, rights and privileges, each careful as to the feelings and susceptibilities of the other, have gone on together for more than one hundred years, hand in hand, without an event to break that current of brotherly affection.

EASTERN AND WESTERN CIRCUITS TOGETHER.

George Walton, 1790-1792. Henry Osborne, 1790-1791. John Houstoun, 1792-1796.

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MEMOIRS OF GEORGIA.

William Stith, 1793. George Walton, 1793-1796.

EASTERN CIRCUIT.

William Stephens, 1797-1798. John Glen, 1798.

David B. Mitchell, 1708-1804.

George Jones, 1804-1807.

Thomas U. P. Charlton, 1807-1810.

John McPherson Berrien, 1810-1821.

Thomas U. P. Charlton, 1821-1822.

James M. Wayne, 1822-1828.

William Davies, 1828-1829.

William Law, 1829-1834.

John C. Nicholl, 1834-1835.

Robert M. Charlton, 1835-1837.

Charles S. Henry, 1837-1845.

William B. Fleming, 1845-1849.

Henry R. Jackson, 1849-1853.

Joseph W. Jackson, 1853. William B. Fleming, 1853-1868.

William Schley, 1868-1875.

Henry B. Tompkins, 1875-1879.

William B. Fleming, 1879-1881.

Henry B. Tompkins, 1881-1882.

A. P. Adams, 1882-1889. Robert Falligant, 1889 .-

MIDDLE CIRCUIT.

William Few, 1797-1799.

George Walton, 1799-1804.

Benjamin Skrine, 1804-1813.

Robert Walker, 1813-1816.

Robert R. Reid, 1816-1819.

John H. Montgomery, 1819-1822.

Robert Walker, 1822-1823.

Robert R. Reid, 1823-1825.

William Schley, 1825-1828.

William W. Holt, 1828-1834. John Schley, 1834-1835. Roger L. Gamble, 1845-1847.

William W. Holt, 1847-1849.

Ebenezer Starnes, 1849-1853. Andrew J. Miller, 1853. William W. Holt, 1853-1864. James S. Hook, 1864-1867. William Gibson, 1867-1870. H. D. D. Twiggs, 1870-1873. Herschel V. Johnson, 1873-1880. R. W. Carswell, 1880-1886.

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James K. Hines, 1886-1890. Roger L. Gamble, Jr., 1891 --.

WESTERN CIRCUIT.

Thomas P. Carnes, 1798-1803. John Griffin, 1803.

Charles Tait, 1803-1809. Thomas P. Carnes, 1809-1813.

Young Gresham, 1813-1816.

John M. Dooly, 1816-1819. Augustin S. Clayton, 1819-1825.

William H. Underwood, 1825-1828.

Augustin S. Clayton, 1828-1831.

Charles Dougherty, 1831-1837.

James Jackson, 1849-1857.

Nathan L. Hutchins, 1857-1868. C. D. Davies, 1868-1873.

George D. Rice, 1873-1878.

Alexander S. Erwin, 1878-1882.

N. L. Hutchins, 1882 ---.

OCMULGEE CIRCUIT.

Peter Early, 1807-1813.

Stephen W. Harris, 1813-1816.

Christopher B. Strong, 1816-1822.

Augustus B. Longstreet, 1822-1825.

Owen H. Kenan, 1825-1828.

Eli S. Shorter, 1828. Thomas W. Cobb, 1828-1830.

Lucius Q. C. Lamar, 1830-1834.

John G. Polhill, 1834-1838.

Adam G. Stafford, 1838.

Edward Y. Hill, 1838-184I.

Francis H. Cone, 1841-1845.

William C. Dawson, 1845:

James A. Meriwether, 1845-1849.

Herschel V. Johnson, 1849-1853.

Francis H. Cone, 1853.

Robert V. Hardeman, 1853-1860.

Iverson L. Harris, 1860-1865.

Augustus Reese, 1865-1868.

N. G. Foster, 1868. Philip B. Robinson, 1868-1873.

George T. Bartlett, 1873-1878.

Thomas G. Lawson, 1878-1886.

William F. Jenkins, 1886-1894.

John C. Hart, 1894 ---.

SOUTHERN CIRCUIT.

Thomas W. Harris, 1819-1824. -

Thaddeus G. Holt, 1824-1825.

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MEMOIRS OF GEORGIA.

Moses Fort, 1825-1828.

Thaddeus G. Holt, 1828-1831.

Lott Warren, 1831-1834. James Polhill, 1834-1836. Carleton B. Cole, 1836.

Arthur A. Morgan, 1836-1837.

Carleton B. Cole, 1837-1845.

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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 42

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