USA > Georgia > The bench and bar of Georgia: memoirs and sketches. With an appendix, containing a court roll from 1790-1857, etc., volume II > Part 12
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Given under my hand and the great seal of the Province aforesaid, at Savannah, the fifth day of November, 1762.
Secretary's Office. JA. WRIGHT.
By his Excellency's command :
JOHN C. TALLEY, D. Sec'y.
Nothing can be more explicit than this action of the Governor and Council. The improprieties alleged against the Chief-Justice were glaring enough to degrade him. Whether he was restored by royal command or left to a private station was not ascertained from the record. To the honor of our State judges, there can be no such document produced against any of them, no conviction of high crimes and misdemeanors, and no removal from office. There have been occasional investigations in the Legislature touching the official conduct of a few judges, but nothing has transpired to fix dishonor upon the ermine of Georgia since her emancipation from British rule.
The commission to Judge Houstoun is as follows :-
GEORGIA .- By his Excellency Edward Telfair, Governor and Com- mander-in-chief in and over the said State.
To the Honorable JOHN HOUSTOUN,-greeting :
Whereas, the House of Representatives of the State of Georgia did, on the twenty-second day of December in the year of our Lord one thousand seven hundred and ninety-one, at Augusta in the State aforesaid, agree-
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ably to the Constitution thereof, nominate you and two others to be sent to the Senate for the appointment of one of the judges ; and the Senate, on the same day of the same month, confiding in the patriotism, judgment, abilities, and good conduct of you, the said John Houstoun, thought fit to elect and appoint you, the said John Houstoun, one of the judges of the Superior Courts of the State of Georgia aforesaid.
These are therefore, in virtue of such election and appointment, to authorize and empower you, the said John Houstoun, and you are hereby fully authorized, empowered, and required to inquire (by oath of good and lawful men of the State aforesaid by whom the truth of matters may be the better known, and by other ways, methods, and means whereby you can or may the better know, at such day and times, and in such counties and places in the said State, as are ordered and appointed by the Constitution and laws of the same, or that may hereafter be directed) more fully the truth of all treasons, misprisions of treasons, insurrections, rebellions, counterfeitings, clippings, washings, false coinings, and other falsities of the moneys of this State and of other States, dominions, or kingdoms whatsoever; and of all murders, felonies, manslaughters, kill- ings, burglaries, rapes of women, unlawful meetings and conventicles, unlawful uttering of words, unlawful assemblies, misprisions, confederacies, false allegations, trespass, riots, routs, retentions, escapes, contempts, falsities, negligencies, concealments, maintenances, oppressions, champer- ties, deceits, and other misdeeds, offences, and injuries whatsoever against the State aforesaid and the good people thereof; and also the accessories of offenders of the same within the said State, by whomsoever and how- ever done, had, perpetrated, and committed, and by whom, to whom, when, how, and in what manner ; and all such offenders so charged to try, and on conviction, (by good and lawful men as aforesaid,) judgment, and sentence, according to the laws of the land, to give and pass in mercy.
And also out of gaol and prison or other place of confinement any person or persons there illegally kept or detained to deliver, bail, or set at large, (as the case may be,) agreeable to the laws and ordinances in such case made and passed, and as to justice shall of right belong.
And further, these are to authorize and empower you, the said John Houstoun, as one of the judges aforesaid, to take cognizance of, hold pleas, try, hear, and determine by the oath of good and lawful men, by whom the truth of matters may be the better known, and by other ways, methods, and means you can, ALL CIVIL ACTIONS and causes of what nature soever : and all captures on land that shall arise or happen in the State aforesaid that may be brought before you by, between, or among the good people of the said State, in such manner and at such days, times, counties, and places in the State aforesaid as are directed by the laws and Constitution of the same, or that may hereafter be directed, and according to the nature of such suit or cause of action, so that right and justice be fully done in all things to parties at variance : TO HAVE, TO HOLD, EXERCISE, AND ENJOY the said office of one of the judges of the State of Georgia aforesaid, together with all the rights, salaries, fees, benefits, privileges, immunities, and perquisites, with the emoluments to the said office belonging or in any wise appertaining, in such full and ample manner as you, the said John Houstoun, as one of the judges of the said State, ought to have, enjoy, and receive.
And according to the trust reposed in you, the said John Houstoun, by the Representatives of the freemen of the State aforesaid, convened and
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met in General Assembly as aforesaid, and for your so doing, this shall be your sufficient warrant and commission.
Given under my hand and the great seal of said State, at the State-House at Augusta, this seventeenth day of January in the year of our Lord one thousand seven hundred and ninety-two, and in the fourteenth year of the Independence of the United States of America.
EDW'D TELFAIR.
By his Excellency's command : JNO. MILTON, Secretary.
By way of contrast, showing marked simplicity, and yet contain- ing the substance of all that is set out with prolific verbiage in the preceding document, the form of a commission is here given, issued about twenty years afterward, which continues in use at the present day :-
GEORGIA .- By his Excellency Peter Early, Governor and Commander- in-chief of the Army and Navy of this State and of the Militia thereof;
To the Honorable STEPHEN WILLIS HARRIS,-greeting :
Whereas, the General Assembly of the State aforesaid, by joint-ballot of both branches thereof, on the sixth day of November, eighteen hundred and thirteen, confiding in the patriotism, judgment, abilities, and good conduct of you, the said Stephen Willis Harris, did elect you Judge of the Ocmulgee District of the State aforesaid.
These are therefore, in virtue of such election and appointment, to authorize and empower you, the said Stephen Willis Harris, and you are hereby authorized and empowered, to do and transact and perform all and singular the duties and functions of a judge of the Superior Courts of the said district, agreeably to the laws and Constitution of this State, for and during the term of three years from the date of your said appointment ; and, for so doing, this shall be your warrant and commission.
Given under my hand and the great seal of the said State, at the State-House in Milledgeville, this 6th day of November, 1813, and in the thirty-eighth year of American Independence. PETER EARLY.
By the Governor :
AB. HAMMOND,
Secretary of State:
In reference to Judge Houstoun, only one further remark is considered necessary in justice to his fame. While he was acting as Governor in 1780, under the Articles of Confederation, an act* was passed by the royal Governor, Sir James Wright, with the consent and advice of the Council and House of Commons of the Assembly, declaring " John Houstoun, late of this Province, rebel
* See White's Historical Collections, p. 98.
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Governor," and one hundred and fifty other patriots, disqualified from holding office, voting at elections, serving on juries, and imposing other disabilities on account of their resistance to his Majesty's laws.
As pertinent to this memoir, the author has in his possession a letter from the late Thomas Spalding, Esquire, who was licensed to practise law by Judge Houstoun. From some cause, owing no doubt to his large fortune obviating the necessity of labor in so hard a field, his taste for elegant literature and for extensive planting-enterprises, Mr. Spalding never made the law a profession. His life was eminently useful: his house was the resort of distin- guished men from all parts of the country, while his improvements and his hospitality were the admiration of all visitors. He was a signer of the Constitution of Georgia in 1798, and afterward a Representative in Congress. He filled many important public trusts with signal ability and fidelity. The last act of his public life was as. President of the State Convention in 1850, when the Georgia Platform was adopted. He was taken ill on his way home, and died at the house of his son, near Darien, January 4, 1851, at the age of seventy-seven years .*
In the Georgia Journal and Messenger of February 12, 1851, the following communication appeared :-
LANIER, January 21, 1851.
To the Editors of the Journal and Messenger.
GENTLEMEN :- About four months ago I opened a correspondence with several gentlemen of long standing at the bar, with the view of preparing a work to be entitled "Sketches of the Bench and Bar of the State of Georgia." Among the earliest answers I received was a letter from the venerable Thomas Spalding, whose death has been recently announced. I send you a copy, which you will please publish in connection with the enclosed circular.
Respectfully, your obedient servant, STEPHEN F. MILLER.
SAPELO ISLAND, October 19, 1850.
DEAR SIR :- Your letter of the 10th of October I have received. It would give me pleasure to aid in any manner your work.
Admitted to the bar more than fifty-five years ago, every gentleman that was on the bench in Georgia for the first twenty years after the Re- volution I had received kindness from, and personally knew, except one,-the old Judge Stith, whom I never saw. His son William Stith, afterward judge, I was intimate with. He was a good lawyer, an amiable and honorable and respectable man.
If I had any one to take down what I might say or what I remember
* See memoir in White's Historical Collections, p. 634.
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of the men of the bench or bar of that distant time, the recollection would be pleasant to myself; but my daughters, who used to give me that aid, are all away and distant from me, and writing at my age has become pain- ful and difficult. If you will direct your inquiries to any one or all of these gentlemen, I will answer them to the best of my remembrance with pleasure, as soon as my health or strength will permit.
Mr. Gibbons was my law-instructor. After my own father, he was the best friend I ever knew. He was a great lawyer, well read in his profes- sion, which he acquired in Charleston under the direction of a Mr. Par- sons, an Irish gentleman of high grade in the law. The result from his professional labors while I lived with him was three thousand pounds sterling a year. This I knew, as I was his collector and Mrs. Gibbons his treasurer. There was then no bank-paper. His note-book was to him of great value, for he had distinctly noted every important case that had occurred during his whole practice, giving the points on which it turned and the opinion of the judge; and, as these judges in those times were Judge Walton of Augusta and Judge Houstoun of Savannah, these deci- sions carried more weight with the jury than the decisions of the King's Bench.
Mr. Gibbons was not a very fluent speaker. He was very quick in discovering the weak point of his opponent, and his memory was always ready to give the law that bore upon it. His commentary upon the law was, in short, in clear, distinct terms, very pointed; and sometimes he in- dulged in witticisms, which increased as he grew older, from his intimate association with Peter Carnes the elder,-the wittiest lawyer I ever have known, and whose wit obscured his profound law-knowledge in the eyes of the many. Mr. Gibbons in his nature was very open, frank, and manly, and very determined. This gave him a few warm friends and many bitter enemies.
It gives me pleasure to state that Gen. James Jackson,-the noblest man with whom it has been my lot to be acquainted,-when I called upon him, as Governor, to give me a letter to Mr. King, our then minister in Lon- don, kept me to dine with him ; and he asked me what were Mr. Gibbons's receipts from his profession. I replied, " Three thousand pounds per annum." " My own were about that amount when I unwisely left my profession for poli- ties. Mr. Gibbons, as a whole, was the greatest lawyer in Georgia." Let me say to you that Gen. Jackson and Mr. Gibbons had exchanged three shots at each other: they were considered the bitterest enemies by the public. A high-minded man feels no enmity. In this way I can go through your list, if it suits you. Yours respectfully,
THOMAS SPALDING.
STEPHEN F. MILLER, Esq.
(Circular.)
SKETCHES OF THE BENCH AND BAR OF GEORGIA.
I am collecting materials for a work in behalf of which I earnestly in- voke the courtesies of the bar. It will embrace a list of the Colonial and State judges, with the dates of their respective commissions, so far as the official record may disclose,-an outline of our judicial system from its in- ception to the present time,-and biographical memoirs of distinguished lawyers who are dead. Occasional notices of the living will also be in- troduced. My steady aim will be to do justice through facts. There will be added a complete roll of practising attorneys, with the States of their
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nativity and year of admission to the bar. In preparing this work I shall be greatly obliged to gentlemen for information-
1. Respecting deceased members who by their energy and talents rose high in the profession,-with an account of their early struggles, their first and subsequent locations, and their peculiarities before the court or jury. Of judges,-their usual method of presiding, whether prompt or dilatory, clear or diffuse in reasoning, and whether patient or restless under argument.
2. Anecdotes showing wit and humor in court or in social intercourse between members of the bar; also scenes with witnesses under examina- tion, or with the bench, where the joke or the repartee excited attention.
3. Remarkable trials, with a brief notice of the difficulties both as to facts and law, the principal questions raised evincing research and adroitness, and also the judges and counsel who shared in the labor.
4. Old letters of a free and rambling character, too good to be lost, where privacy does not forbid their publication. Extracts from these would revive the memory of the dead and rescue many a gem from oblivion. If the originals are sent me, they will be held in confidence, and returned after copying such portions as shall be permitted.
5. Incidents of every description, picked up at random, such as may amuse by their drollness or novelty,-quaint sayings and jovial com- panionship, all forming a part of the lawyer's experience on the circuit.
From the foregoing the plan of the work may be fully understood. Some of the names which I desire to introduce biographically are-
JUDGES .- Dooly, Cobb, Walton, Early, Houstoun, Stith, Jones, Stevens, T. U. P. Charlton, Davies, Crawford, S. W. Harris, Griffin, Tait, Lamar, Reid, Montgomery, Gamble, J. Schley, Shorter, Gresham, Tracy, the brothers Polhill, &c.
MEMBERS OF THE BAR .- T. P. Carnes, R. H. Wilde, Gibbons, Noel, Upson, D. B. Mitchell, C. Harris, N. Ware, Van Allen, F. Walker, Rutherford, W. H. Torrance, S. Rockwell, B. Franklin, T. Fitch, O. H. Skinner, O. H. Prince, J. S. Frierson, W. Crocker, A. Martin, T. F. Foster, D. G. Campbell, J. W. Campbell, T. Glascock, J. C. Terrell, R. W. Habersham, G. Cary, E. J. Black, W. W. Gordon, R. A. Beall, J. Millen, J. M. Kelly, W. H. Anderson, &c.
Several gentlemen, one of whom was admitted to the bar in 1795, and others of forty and thirty years' standing in the profession, have heartily approved my object, and have promised me the benefit of their recollec- tions. A fragment from one, and a brief sketch from another, compara- tively, as leisure may permit, will afford materials for an interesting volume, which, if my correspondents will give me their early attention, I shall be able to deliver from the press during the year 1851, with several fine mezzotint engravings.
The bench and bar of Georgia are worthy of the intended memorial. Let it be accomplished. As to my qualifications, I claim novaing higher than patience and industry equal to the task.
STEPHEN F. MILLER.
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XX.
JAMES M. KELLY.
THE profession will read with friendly interest the biography of the first Reporter of the Supreme Court of Georgia. His early life was checkered with good and evil; his last years were prosper- ous and happy ; and it will be the object of the author to trace, with some degree of minuteness, a career the like of which, as a whole, has rarely terminated with so much credit.
JAMES MADISON KELLY was of Scotch descent, and was born in Washington county, Georgia, January, 1795. His opportunities for education were very limited ; but still, obeying a natural bias, he contrived to read and improve himself sufficiently to act as clerk in a store. Finding his way to some relatives in Cumberland county, North Carolina, he was employed several years behind the counter in Fayetteville. Here he became an expert salesman and a fine book-keeper. Not satisfied with his prospects, and hoping to better his condition in some way, he returned to Georgia about his twenty-fifth year. It is known that he taught school in Twiggs county a while. He soon afterward became manager of the estate of James Johnston, deceased, who by his first marriage was the father of Young Johnston, Esq., late of Macon, and also the father of the first wife of the Hon. Thomas W. Harris, formerly Judge of the Su- perior Court of the Southern circuit. These facts are mentioned to connect Mr. Kelly with proceedings which, however disagreeable at the time, no doubt laid the foundation of his legal character.
In the year 1823, Mr. Kelly intermarried with Mrs. Amy John- ston, the widow, who was the mother of a younger set of children, one of whom was the first wife of the late Larkin Griffin, Esq., of the city of Macon. Mrs. Kelly had several slaves, and her dower, for her young husband to begin his fortunes. It may have been that the property of the estate was kept mostly together under his direction. At all events, Judge Harris set up claims which brought him and Mr. Kelly into antagonistic positions in court,-the former having sued out process, by virtue of which the latter was com- mitted to prison. The particulars are not necessary to be stated. There was nothing to impeach the integrity of Mr. Kelly in the
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matter; and at this point of his history, while gazing from the window of the debtors' room on the moving forms outside, and re- flecting upon his situation, his soul took a panoramic view of life which it never abandoned to the last. A man of honest princi- ples, as he felt himself to be, desiring knowledge, confined in jail for no crime whatever, yet in due form of law, his curiosity was excited to look into his own case, and to discover what kind of net- work or system of rules governed the country, depriving men of personal freedom, regulating titles to property, guarding and de- stroying reputation, life, and all that is dear to man.
After his discharge from prison, and working through the diffi- culty, he reported the case in a newspaper,-a beginning which, twenty years afterward, he matured into volumes with the most gratifying publicity. How strange, how truly romantic, the incep- tion and the sequel compared ! An overseer, a plain farmer,-his dwelling a prison, a love of strong drink ripening daily into a
habit,-the future indeed . appeared gloomy enough. £ Yet the moral landscape, however barren it might appear to others, had a rich coloring to his mind. Fame disturbed his dreams : how it was to be achieved he saw not. The hopeful nature of Mr. Kelly, his kindness of heart, his love of books,-of " Clayton's Georgia Jus- tice,"-never yielded to despair. He was elected a justice of the peace ; and never did Mansfield relish and dignify the King's Bench with more zest than Mr. Justice Kelly enjoyed on reading his commission, and in dispensing law " as he understood it." He was applied to for a warrant against a man for hog-stealing : he issued it, had it returned before him, and gave final judgment. His book, written before the penitentiary of Georgia was esta- blished, prescribed thirty-nine lashes for the offence, without say- ing a word about trial by jury in the Superior Court. He ordered the accused to receive the stripes ; and the constable, with a lively regard for the public justice, executed the sentence forthwith. The result was that a nest of hog-thieves was broken up: they fled from the county, and all remaining people shouted the praise of Justice Kelly. He was indeed a "terror to evil-doers." " His dockets and official papers, every process under his hand, all his mandates, were a model of neatness. "Before me, James M. Kelly, a justice of the peace in and for said county, personally came A B," always heralded a correct description of the matter in hand, whether on the civil or criminal side of the court.
But the district of six miles square, with its monthly court, and thirty-dollar limits, was too small a field for his ambition. He
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sighed for wealth as the ladder of promotion; and, to obtain it rapidly, he united in a commercial business with the late John McIntyre, in Marion, Twiggs county. In the year 1825, they laid in a stock of goods more or less suited to the market. McIntyre was then postmaster, and Kelly was made his deputy, thus consti- tuting themselves partners in trade, partners in office. And there was another relation between them of a very cordial nature : both loved the bottle, vying with each other in the happiness it afforded ; both waited on customers and then relieved their fatigue by sam- pling liquors. In less than twelve months, perfect disaster over- whelmed their affairs. McIntyre had been a book-keeper and notary public in the Branch Bank of Darien, at Marion,-had been deputy clerk of the Superior Court, was unrivalled in his beautiful penmanship and skill in accounts. He died, insolvent and a drunkard, two years afterward, leaving poor Kelly to bear the partnership-burden alone. He was compelled to sell the whole of his property for his creditors, and was perhaps assisted by the sheriff in this delicate operation. At all events, he circu- lated as a broken man, and was so held by merchants and others.
And here no disrespect is intended to either party, living or dead, by referring to a little circumstance. While Mr. Kelly was selling goods, a creditor* obtained judgment against him in Twiggs Inferior Court. Subsequently he sold a slave or two to a rich planter; in his vicinity, and also one slave to another neighbor,} to raise money. The execution was transferred to the first-named purchaser, who, for some cause, omitted to satisfy it out of the property he bought from Kelly, although it was believed he could easily have done so without loss to himself. The transferee had the execution levied upon the negro in the hands of the other pur- chaser, who interposed a claim. The issue was tried at July Term, 1827, on which occasion the author made his début for the claimant. The plaintiff's case was fully made out by the proof that Kelly had been in possession of the property, as his own, after the rendi- tion of judgment. The ground taken by counsel for the claimant was that it was unjust and oppressive for the transferee to hold the execution open to pursue an innocent purchaser after he had ample means of the defendant in his hands to pay it ; and the legal presumption was that, as the transfer was older than his purchase, and the levy subsequent to it, the execution was in fact satisfied.
* The late McCormick Neal. + The late Gen. H. H. Tarver.
į Daniel W. Shine.
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No authority was read to support this proposition ; but the volume of reason and justice was earnestly referred to as conclusive. The page, however, was not cited. Their Honors did not recognise any such rule in their court : they required a statute or a reported decision in point. Such not being produced, the jury found the issue for the plaintiff. A bill was afterward filed by the same counsel, alleging many severe suppositions ; but, on demurrer put in and argued by a prominent member* of the bar who then resided at Macon, the judge dismissed the bill; and thus perished the first bantling at law and in equity which the author attempted to nour- ish. Though his commission as " Attorney, Counsellor, and Soli- citor" (signed " O. H. Keenan, J. S. C. O. C.," at Clinton, April 24, 1827) is thirty years old, yet he has been half the time retired from the bar, engaged in other pursuits. Candor obliges him to say that his first case was a premonition of the success which has attended his professional labors since.
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