USA > Georgia > Meriwether County > Warm Springs > The bench and bar of Georgia during the eighteenth century > Part 3
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Glen was succeeded by Stephens,* and he by Wereat. When his term expired the Legislature not only elected a man who was not a candidate, but one who was not a citizen.
In August, 1782 (3 Rev. Rec. 187), it was "Resolved that the Governor be requested to write to the Hon. Aedanus Burke, Esq., of South Carolina, informing him that this House had elected him to the office of Chief Justice of this State with a salary of 500£ sterling." 3 Rev. Rec. 187, 188.
This selection of a non-resident as Chief Justice was al- most as unique as the character of the man selected.
From Neal's Bench and Bar of South Carolina and an article in 11 Green Bag, 265, it appears that he was a jolly and versatile emigre who had been educated for a priest at St. Omer, removed to Charleston, where he was admitted to the Bar and elected a judge, entered the army and be- came a major in the Continental Army, and after peace was declared, resumed his judicial office, where he attained distinction by his work on the Bench and was appointed one of the Commissioners to revise the laws of Carolina. There are many anecdotes current at the Bar about him. To illus- trate his absent-mindedness, it is said that the Charleston Judges left their judicial gowns with the janitress who hung them in a wardrobe in which was sometimes left her own belongings; Burke, coming late to court one morning, hastily opened the wardrobe, putting on a gown as he walked to the Bench and then astounded his Associates and the audience with the exclamation, "Fore Gad, I believe I've put on Dame Porters' Sunday petticoat." He did not
*In that intermediate period between the repudiation of British authority and the organization of the new Government, the exact legal status of Georgia was a matter of dispute. It was sometimes referred to as a Province and sometimes as a State, and there was a donbt as to whether Indictments should still run in the name of the King, as under the Trustees, the question had been whether Bail Bonds should be to them or to the King. 4 C. R. 88.
William Stephens had been elected as Attorney General, May 1, 1776, with a salary of 25£ (Rev. Rec. 119, 277), and Gov. Bnlloch referred this question to him. As it is the first legal opinion of a Georgia lawyer, it may be stated that he gave it as his opinion that the following would be proper :
"The grand jurors of the body of the Province of Georgia, upon their oaths, present." etc., and concluding "against the peace of the Province and the welfare of the inhabitants thereof." See Charlton's life of James Jackson (S).
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accept the Georgia appointment and Richard Howley was elected in his stead. 3 Rev. Rec. 380.
All Court Records of the Revolutionary period appear to have been lost, except those in Wilkes, prior to 1779. The consequence is that we know nothing of the legal history of that time, except what we can gather from the incidental allusions in the Minutes of the Governor and Council. These give us the names of the Chief Justices* and the judges of the Superior Court of the State-George Walton, Henry Osborne, William Stith and John Houstoun-whose com- mission (2 Miller's Bench and Bar) is interesting in itself and by comparison with the brevity of those now used, when the State has two hundred times as many inhabitants.
When the State was divided into circuits, the East- ern (Home) was in the southern part of the State; the Middle in the central part, and the Western in the north- ern part, from which it has been suggested they were named after the English circuits, and not with reference to their geographical position. (Watkins' Digest, 480, 620.) The judges, up to 1799, of the Eastern Circuit were William Stephens, John Glen, David Mitchell; Western, Thomas Carnes; Middle, George Walton and William Few, the lat- ter of whom, while in the Legislature, introduced, but without securing its adoption, the first local option law ever offered in Georgia, proposing that it should be left to the voters to determine whether the court house of Rich- mond County should be located at Kiokee, Brownsville, or Augusta. 3 Rev. Rec. 565. These judges delivered written charges to the Grand Jury. So that probably in Georgia, as certainly in England, it was not considered good form for attorneys to be present at the opening of court. Camp- bell in his Life of Lord Kenyon (Chap. XLV) saying that : "it was contrary to etiquette for the Bar to be present on these occasions, so that the same address might be con- stantly repeated."
*John Glen, 1776-1780; William Stephens, 1780; John Wereat, 1781; Aedanus Burke, 1782 : Richard Howley, 1782; George Walton, 1783-1786 ; John Houstoun, 1786; William Stith, 1786-1787 ; Nathaniel Pendleton, 1787-1788 ; Henry Osborn, 1788-1789 : Nathaniel Pendleton, 1789.
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To complete the list of the Eighteenth Century Bench, it is proper to call attention to the fact that for a time, as in some of the States prior to 1860, laymen presided in the Superior Court, as Assistants to the Chief Justice, when he was present, and by themselves when he was absent. This was an outgrowth of the English custom, followed during the Colonial time, of putting the Governor, Chief Justice, Assistant Justices, Attorney General, and leading men of each Parish in the Commission of the Peace. After the Revolution, these men* were authorized to sit with the Chief Justice and in his absence to hold Superior Court. And the very oldest judicial record in Georgia contains the minutes of a court held under this system by three Assist- ant Judges in 1779. The record shows that:
"AGREEABLE To an Order of his Honor The President, and the Honorable The SUPREME Executive Council for the State aforesaid past the Council Chamber at Augusta the - day of August 1779
A COURT OF GENERAL SESSIONS OR OIER AND TERMINER AND GENERAL GAOL DELIVERY.
"Begun and held at the house of Jacob Mclendons on the twenty-sixth day of August 1779, Before the Honorable William Downs, Benjamin Catchings & Absalom Bedell Esqrs. Assistant Judges for the county aforesaid"-
Among other things the Grand Jury, Stephen Heard being Foreman, returned an Indictment for High Treason, which is celebrated because it was only "as long as your finger." It charged Rials with "High Treason against this State in that he did act in conjunction with the Creek Indians when they were doing Murder on the Frontiers of
*Joseph Clay, William O'Brien, James Maxwell and Phillip Box, Esquires, jus- tices of the peace for the county of Chatham ; and John Adam Treutlen, Abraham Ravot, Benjamin Lanier, and William Holzendorf, Esquires, justices of the peace for the County of Effingham ; and John Thomas. Edward Telfair, David Lewis, and Daniel M'Murphy, Esquires, justices of the peace for the County of Burke ; and John Walton, James M'Farland, Dionysius Wright, and William Few, Esquires, justices of the peace of the County of Richmond ; and William Downes, Zachariah Lamar, Benjamin Catchings, and Absalom Beddel, Esquires, justices of the peace for the County of Wilkes ; and Parmenas Way, John Graves, John Mitchel, and Samuel Saltus, Esquires, justices of the peace for the County of Liberty, shall be assistant and associate judges with the chief justice of this State, to hold the several superior courts in the respective counties, for which they the said judges are appointed, with full power, civil and criminal, at law or in equity as is customary in court. (Act of 1788, Watkins' Digest, 219.)
*
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this County last March, it being contrary to all laws and good Government of the said State and to the bad example of others." Rials plead the General Issue not guilty and put himself on God and his country for Tryall." He was found Guilty.
But the most remarkable proceeding at that term of the Court is the case of James Mobley, indicted for "High Treason against the State, in that he did steal and carry away a black horse of John Garnett some time last June, and that he did also steal, take and carry away 57 head of hoggs, the property of Robert Morgan some time in the month of December last." He too plead the general issue, Not Guilty, and demanded Tryall by God and his country. The jury brought in their verdict, "Not Guilty, and so say they all -. " There was no Bill of Rights and no provision against double jeopardy, and so "The State's Attorney moved to the Honble COURT that James Mobley should be ordered to be sent to Augusta for further tryall. Not Granted." The Solicitor was persistent, however, and the minutes show that the next day "THE HONble ATTORNEY in Behalf of the State Motioned to the Court that the Tryall of James Mobley should be reheard, as he could produce More evidence in behalf of the State to support the charge brought against him. The Court granted the Request-and ORDERED That he should be brought to the Barr imme- diately." There was a new trial and conviction of the acquitted man and here we have everything that the most exacting could require. An indictment one day. A trial and acquittal the same day. A new trial and conviction the next day, and then Mobley and Rials and five others in one sweeping order were sentenced "to be taken to the guard and there kept until September 6, when they are to be hanged by the neck until their bodies are dead." See also Gilmer's "Georgians," pp. 183-188.
But notwithstanding this want of what many would re- gard as substance, they could not altogether get away from their regard for forms, and the clerk having selected a
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silver quarter and scratched thereon the words, "Superior Court, Wilkes County," an order was passed by the court that the "device be authenticated as the seal of the court." July 17, 1790.
On the civil side of this court there are many interest- ing entries, showing the persistence of common law methods and forms. For example, in a case (Wilkes, 1791) of what we would call Trover for the recovery of slaves, the Council were probably doubtful as to whether such an action would lie, and adopted the ancient common law pro- cedure known as "Ravishment of Ward," a form resorted to by Guardians who sought to regain possession of kid- napped wards.
The Richmond County records go back to 1782 and con- tain many entries that are of interest, because of the old forms and customs they record. For example, a warrant of Hue and Cry, issued in Edgefield, S. C., backed in Geor- gia, and executed by a Georgia officer, is found on the Rich- mond County Minutes (Vol. IV, p. 238). The Warrant was issued to arrest the captor and to regain possession of a number of slaves that had been carried away. I read it because there is a swing about it not often found in a legal instrument. It is addressed to the Sheriff and all officers and "in the name of the State command you and every one of you forthwith to raise the power of your precincts, and to make diligent search therein for the persons above mentioned, and also the property, and to make Fresh pur- suit and Hugh and Cry after them, from town to town and from country to country, as well by horsemen as by foot- men, and to give due notice hereof in writing describing in such notice the person and the offense aforesaid unto every next constable on every side until they shall come to the Sea Shore, or until the said malefactors and felons are apprehended and that you do carry them forth- with before some of the Justices of the Peace in and for the County where he or they shall be apprehended, to be by such Justice examined and further dealt withal according to
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law. Hereof fail not Respectively upon the peril that shall insure thereon."
The records in the Ordinary's Office in Richmond County show that several old English customs had been transferred to that remote outpost. An Administrator credited himself with "Cash paid for reading funeral service: 1£. 8." An- other paid the expense of an old-fashioned Irish wake (1783, p. 1) and credited himself with "2 kegs of but- ter biscuit : 1£," and "For liquor supplied the Arbitrators, £1 18s. 9d." And another credited himself with "Price paid for rum, at the day of sale." That as you know, being for the purpose of stimulating the bidding !
The ancient assize of bread was recognized both by Col- onial and State statutes, and after they fell into disuse the City Council of Augusta passed an ordinance fixing a sim- ilar assize of bread by which the weight of the penny loaf varied up or down with the price of flour.
My opportunities for examining the Chatham records were limited, but in them are several interesting entries. You recall that Blackstone taught that where a foreigner was indicted for anything except treason he was entitled to a trial by a jury de mediatate linguae. It has been held that this law was never in force in America, and yet (Chat- ham Min. 1792, p. 237, 239) when a Frenchman was in- dicted for a felony, he was tried by a jury of six Americans and six Frenchmen, the records reciting: "Defendant being a foreigner and not understanding the English lan- guage the Court ordered 6 persons of the same nation to be summoned to attend and a venire de novo."
In one case, the verdict reads: "We find the prisoner not Guilty, and that his character has been greatly injured (251). In another a sentence of Banishment was pro- nounced, it being ordered that the defendant should: "be remanded to jail there to be confined until an opportunity shall be had to transport him to some foreign and other ter- ritories than those belonging to the United States, and he is forbid to return to this state during the term of seven
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years on pain of suffering as the law directs." (60.) In Bryant's case (404) for Horse (?) stealing there was a recurrence of the Pious Fraud resorted to to save the pris- oner from being hung. The verdict being "Guilty on the third and last count at common law only to the value of two pence, half penny."
There is reference (1782, p. 3) to an indictment for "Uttering seditious words," and several instances in which the Superior Court of Chatham exercised the power of a Court of Admiralty and passed on the question whether captured ships carried the proper flag or were prizes of war. In one case the verdict was "Ship was a flag and the Belinda a prize."
On a former occasion I have called your attention (9 Ga. Bar Association 20) to the fact that it was not until 1817 that the benefit of clergy was abolished in Georgia. Prior to that time the English rule had prevailed, under which all who could read were treated as clericals and entitled to the Benefit of Clergy; and on being found guilty were generally branded with the letter M (Man- slaughter) F (Forgery) or T (Theft), and were then sup- posed to be turned over to the ecclesiastical power for proper punishment. The ability to read stood a man in good stead; and so the record in Richmond Superior Court (1807, p. 220) recites. We of the jury, find the prisoner guilty of manslaughter. It is therefore demanded of the said Edwards, if he hath or knoweth anything to say wherefore this Court ought not upon the premises and ver- dict aforesaid to proceed to judgment and execution against him, who saith that he is Clerk, and prayeth the Benefit of Clergy to be allowed him in this behalf. Whereupon, all and singular, the premises being seen, and by the Court here fully understood, it is considered by the Court that the said Edwards be branded on his left hand, and immediately he is branded in his left hand and is delivered according to the form of the Statute."
The entry in Chatham County is in a little different language.
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It appears (Chatham Minutes, 1793, p. 171) that on the trial of Huxford he was found guilty of manslaughter, and "the prisoner being brought to the bar to receive sentence upon his conviction, Mr. Woodruff in his behalf, prayed the benefit of clergy. Thereupon the court proceeded to pronounce sentence as follows: "That you Ephriam Hux- ford, be impressed, burned and scorched with the letter M in the brawn of the left thumb now presently in open court, pay the fees of your prosecution and be discharged."
This entry reminds me of the story a member of the Augusta Bar tells of a very old citizen who in giving his recollections as a boy, mentioned an instance where he and other children, looking through a crack in a fence of the jail yard, saw a man branded on the thumb. Time was of the essence, for it seems the rule was that the hot iron staid on the thumb until the prisoner could say "God save the State !!! " three times. His description of the excessive rapidity with which the man uttered the three words sug- gests the gentleman from Maine, of whom it was said that he talked so fast that he could say "Commonwealth of Mas- sachusetts" as though it were a word of one syllable.
As we have seen in Williamson's case, the Colonial courts did not admit persons to practice, that power being ex- ercised by the Trustees in London. But beginning with the King's Government in Georgia, the courts admitted per- sons to the Bar. We do not know what were the terms of their admission. Stokes (p. 269) says that in the Colonies generally those who had read at the Inns of Court or had served clerkship in England were admitted on producing proper certificates, but leaves it uncertain as to how those were admitted who had had no such preparation. The Georgia courts must have been either too strict or too lax, for the Constitution of 1777 took from them the power of admitting or disbarring attorneys and provided that "no person shall be allowed to plead in the courts of law in this State, except those who are authorized so to do by the House of Assembly, and if any person so authorized shall
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be found guilty of malpractice, before the House of As- sembly, they shall have power to suspend them. This is not intended to exclude any person from that inherent priv- ilege of every FREEMAN-the liberty to plead his own cause."*
Under this provision of the Constitution, numerous spe- cial acts were passed authorizing persons to practice. (Wat- kins, 329, 378, 406.) But, of course, it was soon found that the Legislature had no creative power and could no more make a lawyer than a doctor by statute. The acts, there- fore, generally provided that the applicant could be ad- mitted when he produced to the court satisfactory evidence of his qualification. For example, the Minutes of Chat- ham (16) show that "on motion of Mr. Stirk the petition of Florence Sullivan was read, including a resolution of the House of Assembly, and it appearing to the court that Mr. Sullivan has regularly served his time, he was ad- mitted and sworn as an attorney." This would indicate that the provisions of II Geo. II, Chap. 22, was treated as of force in Georgia. Indeed, as late as 1783 (8 Ga. Hist. Soc. 183; Memoirs of Judge Rich'd H. Clark, 121), Joseph Clay, in writing of his son's desire to be admitted to the Bar, com- plains of the requirement that he should be articled as a clerk for five years-"the term preposterously prescribed by law." But that was shorter than the seven-year term which had long been required in England of those who were admitted through the Inns of Court. But it was inevitable that the term and course of study in Georgia should be shorter than in England, and this was finally settled by the first rules of Court, promulgated in 1790 (3 Min. 84) by Judge Osborne at a session of the Superior Court of Richmond County, readopted in Chatham (Minutes, 1792, 364) and in Wilkes (1790, p. 2). These rules provided :
*This was so strictly construed that when Gen. McIntosh employed noted and distinguished non-resident counsel it was thought they could not represent him without authority of the House of Assembly, which thereupon passed a resolution "granting leave for Charles Cottesworth Pinkney, Thomas Pinkney and Edward Rutledge, Esquires, to be admitted to plead at any Court of justice in this State, so far as relates to any cause General McIntosh may be engaged in or have occasion to commence." 3 Rev. Rec. 300.
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"The principle of admission of attorneys being a knowl- edge of the laws and the practice of the Courts, a liberal examination shall be had in these respects, but the mode of interrogation shall be varied, and no person shall be ad- mitted until after twelve months residence."
This was the beginning of the custom of having oral ex- amination in open court, which continued for more than a hundred years. We do not know what were the specific re- quirements for admission in Georgia, but the custom in the other Colonies was to pay a fee of $100 to a member of the bar for the privilege of reading in his office for the re- quired time, after which, McMaster tells us: "His patron would take him to the Court, seat him at the lawyers' table, whisper to the gentlemen present, and, with their consent, would rise and ask leave of the Court to present a young man for the oath of an attorney. The Court would ask if the bar consented. The lawyers would then bow. The patron would vouch for the morals and learning of his young friend, and the oath would be administered by the clerk. This done, the new attorney would be introduced to the bar and carried off to the nearest tavern where health and prosperity would be drunk to him in bumpers of strong punch." 2 McMaster Hist. People of the U. S. 279.
This was not always true of the Georgia Bar. The standard was unusually high. Trained lawyers were on the bench from the very beginning of its history as a Royal Colony-several members of the Bar had been students at the Inns of Court, and while the Litchfield Law School under Judges Reeves and Gould was in existence, a greater propor- tion of students attended from Georgia than any other State, population considered .*
*It appears in Kilbourn's work that the Catalogue of the School for the years between 1782 and 1792 has been lost. The one now in existence gives the names of sixty nine students who attended from Georgia between 1798 and 1833, when the School was discontinued.
Allen, Alexander M. : Ayer, Zaccheus ; Banks, William C. ; Baxter, Eli, H. ; Bond, Nathaniel P. ; Bolles, Job S. T. : Cantelou, Peter L. ; Cantelou, William B. ; Clark, Archibald : Clark, Gibson ; Clark, James ; Clark, Robert ; Clifton, Wil- liam C. ; Crawford, Joel : Cumming, William ; Cuthbert, John A .; Cuthbert, Alfred ; Dawson, William C. ; Delamotter, Jacob : Doyle, Francis ; Gibson, William ; Gould, William T. : Grant, William A. ; Hasley, Hopkins; Harvey, Leroy : Hines, Richard K. ; Holt, Thaddeus G. ; Houston, Patrick ; Jackson,
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Judge Richard H. Clark in his Memoirs (p. 249) says that it was "the custom for the Judge to set aside some special day or days during a term for the examination of applicants, and to appoint the most eminent lawyers of the court on the Committee. No examination was had except what occurred in open court and that was as thorough as practicable." And while every circuit has its anecdote illus- trative of the indulgence of the Committee, yet the fact that there was to be a public examination usually deterred the applicant from taking it, unless his preceptor thought him qualified. Many of those now living will consider Mc- Master's description not quite so accurate as that of Kil- bourne, who says:
"The matter of examining candidates for admission to the bar was, in those days, an imposing solemnity, and the day for that proceeding was a marked day for the term. All the members of the bar were expected to be present and few failed of attending. The committee of examination occupied the judges' seats; the Chairman holding the place of the Chief Judge, indicating to each separate member of the Committee the subject in which he was expected to examine the candidate, and thus a thorough and search- ing examination was had. After the examination was closed the candidates retired, and the members of the bar gave their opinions seriatim on the question of the admission of the applicant." Kilbourne's Litchfield, 83.
Judge Andrews in his interesting and most valuable "Recollections of an Old Georgia Lawyer" tells us that in those days of formality the Sheriff wore a cocked hat and
Ebenezer, Jr. ; Jackson, Joseph ; Jackson, Thomas L. ; Johnson, James ; John- ston, James T. ; Lamar, Lucius Q. C. ; Longstreet, Augustus B. ; Miller, Morris ; Moffitt, Thomas ; Moore, Robert; Nicoll, John C .; Nesbit, Eugenius A. ; Oliver, Samuel W .; Parrott, Abner B. ; Pierce, William L. ; Pitt, John R .; Poe, Wash- ington ; Rogers, Chas. W. ; Rogers, William M. ; Rutherford, John ; Ruther- ford, Robert ; Sankey, Joseph S. ; Seymour, Isaac G. ; Shaffer, Joseph L. ; Spauld- ing, Richard B. ; Sparks, William H. ; Spaight, Charles G. ; Sterrett, William P. ; Stiles, Joseph C. ; Stiles, Richard ; Stevens, Thomas ; Tatnall, Edward F. ; Tel- fair, Josiah ; Telfair, Thomas; Thweat, Uriah ; Thomas, Alexander ; Walburg, Geo. M. ; Walker, George J. S .; White, Thomas; Wittich, Lucius L. ; Wright, Augustus R.
William T. Gould, in this list, was the son of Judge Gould, one of the Professors in the School and author of the celebrated work on Pleadings. William T. Gould conducted a Law School in Augusta, where he lived to a ripe, old age, honored and respected by the entire community.
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