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 15
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Should you determine to remove to Mobile, I have no question that you will find it an agreeable, and, I hope, a profitable, place to reside in.
I am, sir, your ob't serv't,
HENRY GOLDTHWAITE.
The mention by Mr. Kelly of a letter he received from Chan- cellor Kent has induced the author to submit one also from the same distinguished character, for the sake of the legal question solved in it. The author was not then in the practice of the law, but was the witness to a bond for titles to land. In the litigation which grew out of it, the court below rejected the secondary evi- dence, because the witness could not of his own recollection esta- blish the contents of the lost bond. Believing the decision to be erroneous, he laid the case before Chancellor Kent, as follows :-
In a suit between A as plaintiff and B defendant, B offers in evidence, as material to his defence, the copy of a bond executed by A. The origi- nal was proved to be lost. The subscribing witness to the bond testified that he saw it executed, and that he, the witness, delivered it to another disinterested person. The person to whom the subscribing witness deli- vered the bond, testified that he received it from the subscribing witness, and that he took the copy submitted, word for word, from it.
Was the copy sufficiently proved to admit it, or was the subscribing witness the only person competent to prove the contents of the original ?
The following is the reply :-
NEW YORK, August 25, 1888.
DEAR SIR :- I returned this week from a journey to the far-western counties of this State, and did not receive your obliging letter of the 16th ult. until after my return.
I answer the question you put with great pleasure. I am of opinion that the copy of the bond, in the case you state, was sufficiently proved to admit it in proof. The original being proved to be lost, and the copy proved to be exact, and taken word for word from it, and the execution of the original by the subscribing witness was duly proved, and the iden- tity of the original bond, from which the copy was taken, duly proved,- and all this, I think, was amply sufficient to let in the copy in proof.
It cannot be necessary, and would be very inconvenient and unreason- able, to require the contents of an instrument to be proved by the sub- scribing witness. There is not a witness in a thousand that reads over the original at the time of attestation, and it would be impertinent in him to insist on it. All that he need testify is that he knew the obligor and saw him execute the instrument, and that he subscribed his name as a
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witness, and that the instrument is in the state it was then in, without any material erasure, interlineation, addition, or mutilation made since, or that it appears to be so. In the case stated, the subscribing witness delivered the bond, as executed and attested, to the copyist, so that there could not be any mistake in the case.
The rule of evidence was fulfilled, that the best evidence was offered that the nature of the case, under the circumstances, afforded.
I am, with thanks for the kind manner in which you have been pleased to express yourself, and with my best wishes for your success and happi- Yours, truly,
ness,
JAMES KENT.
STEPHEN F. MILLER, Esq., Livingston, Alabama.
The case* referred to was taken up to the Supreme Court of Ala- bama, where the judgment below was reversed, thus coinciding with the opinion of Chancellor Kent. The question arose on an office-copy of the bond,-the law not requiring such instruments to be recorded, and making it, therefore, a mere private copy.
Mr. Kelly proceeded with his work of reporting in a manner creditable to his intelligence and legal acumen, and also to the satisfaction of the public, who perceived that the new system was about to accomplish what had long been desired,-uniformity in the administration of the courts. True, cases multiplied term after term in the appellate court; still, the fact was no objection to, but rather a proof of the necessity of, the corrective tribunal. It furnished the circuit courts a chart of the ocean of legal questions they had to navigate, marking lines from the judicial log-book just as a distinguished gentlemant of science has checkered the Atlan- tic with the tracks of a thousand vessels to show on paper the cur- rents of the sea for the direction and safety of the mariner. In this work of revision constant difficulties have arisen. Almost every case presented a strange combination of facts,-some, of parties in interest, of latent equities, of secret trusts, of declared trusts, of color of right, of hardship, of equal diligence, of gross laches, of superior activity, of stolid indifference, in all the rela- tions of property by descent, by purchase, and by accident. How to adjust these conflicting elements was a labor indeed. The judges, aided by the copious briefs and forcible arguments of coun- sel, delivered opinions as case after case was taken up on the docket, after issue joined. The judgments of the court may have
* 8 Porter's Reports, 546.
+ M. F. Maury, LL.D., Lieutenant United States Navy, Author of "The Physi- cal Geography of the Sea."
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been disagreeable to the parties cast, and to their counsel who sympathized with them ; but the record, the briefs, the opinions, the task of condensing the principles decided into head-notes,-all the mental and physical labor of this whole process, now to receive the finishing touch of the reporter for his forthcoming volume, was a real luxury to Mr. Kelly ; and he enjoyed it with as much pride as a Cabinet-officer may be supposed to felicitate himself as the head of a department, to figure as such in the almanacs, in public documents, and on the roll of fame.
By the act establishing the Supreme Court, the reporter was prohibited from practising as an attorney in any of the courts of the State,-on the ground, it is presumed, that the Legislature thought all his time would be required to follow the court to Savannah, Hawkinsville, Talbotton, Americus, Macon, Decatur, Cassville, Gainesville, and Milledgeville, every year, and in pre- paring the cases for publication. At the session of 1847, however, this disability was removed, and Mr. Kelly resumed his very respectable practice. He was now realizing the fruition of all his hopes : his cup of happiness was full; and he well deserved it. Long had he patiently borne misfortune : long had he struggled for deliverance. With a buoyant mind, often sad, yet invincible, with hopes that in his obscurity had animated Erskine for the Chancel- lorship of England, the laborious Kelly held on, looked up, and saw brighter days ahead. He had passed through the crucible and had come out as refined gold, attracting friends, and daily in- creasing his fortune and reputation. He had shown himself pos- sessed of a "valiant soul," so happily described by a public writer* in relation to whom an extract is here given :-
Not to love Carlyle when you know him is something unnatural, as if one should say they did not love the breeze that fans their cheek, and the vine-tree which has refreshed them both with its leafy shade and its exu- berant juices. He abounds himself in love and in good works. His life, not only as a "writer of books," but as a man among his fellows, has been a continued shower of benefits. The young men, more especially, to whom he has been the good Samaritan, pouring oil upon their wounds and binding up their bruised limbs, and putting them on the way of recovery of health and useful energy,-the number of such can scarcely be told, and will never be known until the great day of accounts. One of these, who in his orisons will ever remember him, has just read to me, with tears of grateful attachment in his eyes, portions of a letter of counsel and encouragement which he received from him in the hour of darkness, and which was but the prelude to a thousand acts of substantial kindness and
* See Harper's Magazine, No. 5, vol. i., October, 1850.
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of grateful attention. As the letter contains no secret, and may fall as a fructifying seed into some youthful bosom that may be entering upon its trials and struggles, a quotation from it will form an appropriate finale at this time. He thus writes :-
" It will be good news, in all times coming, to learn that such a life as yours unfolds itself according to its promise, and becomes in some tolerable degree what it is capable of being. The problem is your own to make or to mar, -- a great problem for you, as the like is to every man born into this world. You have my entire sympathy in your . denunciation of the 'explosive' character. It is frequent in these times, and deplorable wherever met with. Explosions are ever wasteful, woeful : central fire should not ex- plode itself, but lie silent far down at the centre and make all good fruits grow! We cannot too often repeat to ourselves, 'Strength is seen, not in spasms, but in stout bearing burdens.' You can take comfort in the mean while, if you need it, by the experience of all wise men,-that a right heavy burden is precisely the thing wanted for a young, strong man. Grievous to be borne, but bear it well, you will find it one day to have been verily blessed. 'I would not for any money,' says the brave Jean Paul, in his quaint way,-' I would not for any money have had money in my youth.' He speaks a truth there, singular as it may seem to many. These young obscure years ought to be incessantly employed in gaining knowledge of things worth knowing, especially of heroic human souls worth knowing. And, you may believe me, the obscurer such years are it is apt to be the better. Books are needful; but yet not many books,- a few well read. An' open, true, patient, and valiant soul is needed : that is the one thing needful."
The ordeal passed, established in character and influence, and the future teeming with manly, virtuous enjoyment, Mr. Kelly looked to the reward of his ambitious longings with pleasant confi- dence. He had, indeed, already secured it. The name of Kelly had become familiar to jurists in other States. Alabama, Missis- sippi, Tennessee, South Carolina, Virginia, New York,-all had quoted "Kelly's Reports." The United States Digest, in a dozen large volumes, contained many references to Kelly's Reports, along with Cranch, Dallas, Binney, Pickering, Johnson, Cowen, Brock- enborough, Bay, Washington, Iredell, Porter, Bibb, Yerger, and that class of men who have contributed to the judicial literature of the country and the fame of the tribunals they severally represent.
Now, at an advanced stage of his progress, some special notice may properly be taken of Mr. Kelly's mental organization, which thus far has been omitted. His mind was altogether plain and practical. He saw the relation of things, the bearing of principles, the conclusion of facts, without being dazzled into chaos by the meteor of imagination, which, like another ignis fatuus, too gene- rally leads the intellect into bogs and brambles from which there is no escape. Many a genius has been entangled in this nicely-
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concealed morass, and lost there without the power of extrication. Man has perils on every side. If born rich, as all desire that their sons should be, the probability is as a hundred to one that the individual thus fortunate will never bring his intellectual powers into full action, and that of course his wealth and his mediocrity of talents will be his only stake in life. Men are naturally too sluggish to work without compulsion, and there is no solid fame without labor-long-continued, intense labor-in the pursuit of a worthy object. It is wisely ordained,-blessings fairly distributed. The picture of an individual often seen by us all is thus drawn by a writer* of established renown :-
The poor man's son, whom Heaven in its anger has visited with ambi- tion, when he begins to look around him admires the condition of the rich. He finds the cottage of his father too small for his accommodation, and fancies he should be lodged more at ease in a palace. He is dis- pleased with being obliged to walk afoot, or to endure the fatigue of riding on horseback. He sees his superiors carried about in machines, and imagines that in one of these he could travel with less inconveniency. He feels himself naturally indolent and willing to serve himself with his own hands as little as possible, and judges that a numerous retinue of servants would save him from a great deal of trouble. He thinks if he had attained all these he would sit still contentedly and be quiet, enjoy- ing himself in the thought of the happiness and tranquillity of his situation. He is enchanted with the distant idea of this felicity. It appears in his fancy like the life of some superior rank of beings; and, in order to arrive at it, he devotes himself forever to the pursuit of wealth and greatness. To obtain the conveniences which these afford, he submits, in the first year-nay, in the first month-of his application, to more fatigue of body and more uneasiness of mind than he could have suffered through the whole of his life from the want of them. He studies to distinguish him- self in some laborious profession. With the most unrelenting industry he labors night and day to acquire talents superior to all his com- petitors.
He endeavors next to bring those talents into public view, and with equal assiduity solicits every opportunity of employment. For this pur- pose he makes his court to all mankind: he serves those whom he hates, and is obsequious to those whom he despises. Through the whole of his life he pursues the idea of a certain artificial and elegant repose which he may never arrive at, for which he sacrifices a real tranquillity that is at all times in his power, and which, if in the extremity of old age he should at last attain to it, he will find to be in no respect preferable to that humble security and contentment which he had abandoned for it. It is then, in the last dregs of life, his body wasted with toil and diseases, his mind galled and ruffled by the memory of a thousand injuries and disap- pointments which he imagines he has met with from the injustice of his enemies or from the perfidy and ingratitude of his friends, that he begins at last to find that wealth and greatness are mere trinkets of frivolous
* Adam Smith,-Theory of Moral Sentiments, vol. i. p. 244.
e
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utility, no more adapted for procuring ease of body or tranquillity of mind 1 than the tweezer-cases of the lover of toys, and, like them too, more troublesome to the person who carries them about with him than all the advantages they can afford him are commodious.
It may be confessed, without disparagement to Mr. Kelly, that he had fixed his aims high; and who can blame him ? There was a fascination in prosperity, which led him on, step by step, to greater efforts, to a destiny proud and honorable, he hoped, yet unknown in the future. While men of more brilliant gifts, who had perhaps in years gone by looked upon him coldly, if not with disdain, were hurled from their ideal eminence and lay floundering in the dust, he, by his matter-of-fact mind, by his common-sense discrimination, with system to work upon, had obtained a position which the public recognised as peculiarly his own,-an honest man by his own merits rescued from failure after a long season of adversity.
It is to be much regretted that the useful life of Mr. Kelly wa's so soon to terminate, just as he had attained the acme of his wishes. He completed his second and third volumes, and, by the aid of the gentleman* who has since succeeded him in the office, had brought out the fourth and fifth volumes, the series being changed to " Georgia Reports," soon after which he closed his earthly career. He died at Perry, on the 17th day of January, 1849, deeply lamented by his friends and by the whole community in which he had passed more than twenty of the best years of his life.
The author had been intimate with Mr. Kelly during fifteen years,-from their first acquaintance in 1824 until the winter of 1839, when they saw each other for the last time. That he had foibles is not denied; but, objectionable as they were, they were relieved of all grossness by the abiding love of excellence which pervaded his nature. Before Mr. Kelly came to the bar, he often expressed to the author his desire of acting a conspicuous part in the legislation of the country and in the administration of its laws. He loved to read well-written articles in books and newspapers, and occasionally entertained the author by reciting fine specimens. And here it may not be amiss to say that the kind words of Mr. Kelly stimulated that passion for books and improvement which had ever been more or less active in the mind of the author, though he saw no way open either to Mr. Kelly or himself,-for neither
* Thomas R. R. Cobb, Esquire, the efficient reporter and compiler, so highly respected by the profession.
VOL. II .- 9
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had as yet commenced, or even talked of, the study of the law. The fact inspires tender recollections, and brings the romantic past in pleasing yet sad review, as the generous Kelly afterward triumphed and fell honored in the grave, leaving the author the melancholy privilege of adding this memorial of friendship.
Whoever visits the graveyard near Perry will see a handsome marble tomb, on which is engraved the following :-
Sacred to the memory of JAMES M. KELLY, Esq. Born in Washing- ton co., Ga., January, 1795. Died in Perry, Houston county, Ga., January 17, 1849, aged 54 years. Respected and beloved, he lived and died an honest man. Maj. Kelly was the first Reporter of the Supreme Court of Georgia.
In the sixth volume of Georgia Reports, p. 115, may be found an expression by the court and bar which will ever be read with solemn interest. The response of Judge LUMPKIN is indeed touching to the heart. The official record is as follows :-
SUPREME COURT OF GEORGIA.
TALBOTTON, January Term, 1849.
Monday, January 29 .- The death of Major JAMES M. KELLY, the Reporter of this court, having been announced to the court, on motion of Grigsby E. Thomas, Esq.,-
Resolved, That a committee be appointed of three members of the bar of this eourt to draft a suitable memorial on the death of our worthy brother, and report on the opening of the court to-morrow morning.
Whereupon the court appointed Messrs. G. E. Thomas, Hines Holt, and Marshall J. Wellborn that committee.
Tuesday, January 30 .- G. E. Thomas, Esq., from the committee appointed yesterday, made the following report, which was unanimously adopted and ordered to be entered on the minutes :-
The melancholy tidings of the death of our brother, JAMES M. KELLY, and late Reporter of the decisions of this court, having reached us, we delay not to make a suitable expression of our grief, and to tender to his memory that tribute of respect so justly due. By his bland and obliging manners, his amiable and discreet deportment, he had not only endeared himself to this eourt and to his professional brethren, but to all who knew him. In the private walks of life he was the man of integrity and honor, of sympathy and kindness. He was remarkably accurate, systematic, and neat in the execution of his business, and is a striking example of how mueh punctuality and method may accomplish. He struggled manfully and successfully against poverty, and overeame, by studious application, those impediments which the want of early advantages entailed upon him. He has left behind him some evidences that he was both a patriot and statesman ; and his reeent work of Reporter is sufficient to hand him down to posterity as a jurist.
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Therefore, Resolved, That we truly deplore the death of our much- esteemed brother, JAMES M. KELLY, late Reporter of the decisions of this court, and we regard the event not only as a loss to this court but to the community.
Resolved, That we sincerely condole with the afflicted and bereaved family of our deceased brother.
Resolved, That, as a token of respect for him, we will wear the usual badge of mourning thirty days.
Resolved, That this memorial and these resolutions be entered on the minutes of this court, and that a copy of them be forwarded to the family of the deceased by the clerk of this court, and that he likewise furnish a copy to the editors of the Federal Union, and Messenger and Journal, for publication.
Upon the reading of these resolutions, Judge LUMPKIN, in behalf of the court, responded as follows :-
The present term of this court is overshadowed with gloom. We are called on for the first time since its organization to deplore the loss of one of its official members. We have met to-day, not to listen to forensic discussion, not to have our minds charmed and our attention chained by " fancy's flash and reason's ray," but to contemplate the mansions of the dead,-to sit sorrowfully beneath the shades of the cypress and the willow.
Of what momentous importance did life-big with promise and buoyant with hope-appear to us yesterday! To-day, how sunk in value !- "worthless as the weeds that rot on Lethe's wharf."
It was my misfortune not to know Major Kelly until his election to the office of Reporter, which he so worthily filled from the first constitution of the court till his death. His industry and zeal at the bar and in the halls of legislation will long be remembered by his associates and cotemporaries. He has added another to the countless number of examples, in this free and happy country, to show that merit is the sure road to fame and fortune.
But, however short our acquaintance, it gave rise to an attachment of no ordinary character. It is well known that when the court-bill passed in 1845 a large majority of the people were decidedly hostile to it. To secure its enactment, by accommodating its provisions to the wishes of all, it contained inherent defects well calculated to insure its miscarriage. To obtain the services of suitable men under these circumstances to fill the offices and to steer the ship through a crowded sea of- contrary winds was a task of no ordinary difficulty. Who was willing to risk what little reputation he might have acquired by a lifetime of toil,-to be crushed, perhaps, forever beneath the superincumbent ruins of a fallen fabric ? To construct and put in operation a machine is the Herculean task ; to guide its subsequent movements is comparatively an easy matter. The appoint- ing-power, under the law creating the court, felt greatly encouraged, there- fore, when one of such responsibility and worth as our departed associate consented to serve as Reporter.
How often, after days and nights of labor which knew no intermission, has our little household assembled in anxious consultation about the fate of the frail bark in which we were afloat ! We shared a community of hopes and
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fears. And none but the passengers in the Mayflower in quest of a new world, with no friendly star, auguring success, to guide through a track- less and hitherto-untried sea, can realize our situation. By unrelaxing exertion, and by unity and concord such as have rarely distinguished the counsels of any body of men, the dangers of the occan have been weathered and the vessel has been safely anchored in port. Whatever may become of the early voyagers, the enterprise itself is beyond peril. A landing has been effected on the rock of Plymouth. No cause less powerful than death itself can dissolve a friendship thus formed !
We always found in the deceased an ardent and devoted auxiliary. Having no offspring on which to lavish his parental fondness, " Kelly's Reports" became the Benjamin,-the pet of his old age. And it is matter of congratulation that he lived to witness the full triumph of this experiment,-the new organization of the judiciary,-to see one session of the Legislature intervene without any attempt to disturb the court, and one of the judges, whose term had expired, re-elected to a full tenure of office.
Did the occasion justify it, we would delight to dwell on the public and private virtues of our companion. His patriotic bosom was always warm with love of country and bright hopes of her happiness and prosperity. In common with many others, we have shared his generous hospitality, marked his amiability in domestic life,-his uniform courtesy and urbanity at the bar and in the social circle. But we forbear. The language of grief is not sufficiently clear and discriminating to attempt the accurate delineation of character. The heart must be assuaged before such a por- trait is undertaken.
In this sudden bereavement we fully mingle our sympathy with that of the profession, his disconsolate widow, and a large circle of attached friends. We dare not arraign the dispensations of Providence. Heaven alone can pour balm into the severe wound which has been inflicted; it alone can soothe the suffering survivor and comfort the mourner; it alone can heal the broken-hearted.
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