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 17
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The Speaker laid before the House a communication from William P. Hopkins, and the same being read, on motion of Mr. Bates, it was ordered to be entered on the Journals of the House, and is as follows, to wit :-
TO THE HON. THE SPEAKER OF THE HOUSE OF REPRESENTATIVES.
SIR :- The joint committee, to whom was assigned the duty of ascer- taining if possible the person who gave four votes at the late election of Judge of the Ocmulgee circuit, having reported, and their report having placed Noble A. Hardee, Esq., one of the Representatives of Camden county, in an awkward position in relation to this subject, I feel compelled for his special relief, as well as from a consideration of my duty to each member of the House, voluntarily to avow the fact that I did, at said elec- tion, on one ballot give in more than one vote; but it was only on one. ballot that I gave in more tickets than one. This disclosure would have been instantly made but for the high excitement which the circumstance seemed to occasion. At a later period, when this matter was under inves- tigation before the committee, I should have communicated the fact had I not been convinced that the House was disposed to treat seriously a cir- cumstance which was at the time intended solely for amusement and with- out any intention corruptly to change the result of the election, and not believing myself bound to make any statement calculated to implicate myself. It is always understood that evidence is given with this reser- vation.
The House, I hope, will believe me candid in my statement of having no improper motive in this affair. Two of the candidates were of the same political party with myself. I had no acquaintance with either of them before the present session, and my predilections for either were not sufficiently strong to prompt me to an act which, if done with a corrupt intention, would be highly reprehensible. I submit this statement, through you, to the House, and hope to stand acquitted in public estimation, as I know I am in my own conscience, of any evil design in the matter.
Respectfully, WM. P. HOPKINS.
Next day the Journal (p. 282) contains this entry :-
Mr. Bailey laid on the table a preamble and resolution to expel and exclude from the House of Representatives William P. Hopkins, a mem-
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ber from the county of McIntosh ; and, the same being read, he moved to suspend the order of the House, for the purpose of taking the same into consideration ; which motion was refused,-Yeas, 22; Nays, 85.
And on the succeeding day, December 8, the Journal (p. 288) gives the conclusion as follows :---
On motion of Mr. Hardee, the House took up the resolution offered yesterday concerning the conduct of William P. Hopkins in the late elec- tion for Judge of the Ocmulgee circuit, and to expel and exclude him from his seat as a member of the House of Representatives; and, the same having been read, Mr. Murray offered the following as a substitute, to wit :-
Whereas, William P. Hopkins, Esq., a Representative from the county of McIntosh, did, at the late election of a judge of the Ocmulgee circuit, place in the ballot-box more than one ballot at one of the times of bal- loting, when he should have voted but one ballot only ;
And whereas, the said William P. Hopkins has, by letter addressed to the Honorable the Speaker and members of the House of Representatives, frankly and avowedly acknowledged the fact, and submitted his reason for not having done so at an earlier period, and, moreover, has assigned the reason that he did not do it from any corrupt or improper motive, but having voluntarily and of his own accord made such disclosure, and the same being entered of record in this House, he thereby indulged the hope that henceforth he might stand acquitted of any improper motive in the opinion of a liberal and enlightened community ;
And whereas, it is not the wish or desire of this House to destroy for- ever the prospects and respectability of a young man just entering upon the scene of busy life for an act of indiscretion resulting in injury to no person save himself, ---
Be it therefore resolved by the House of Representatives of the State of Georgia, That, whilst they deeply regret the occurrence, and view with disapprobation any attempt to use corruptly and improperly the elective franchise, they are, nevertheless, disposed to view the act of the said Wil- liam P. Hopkins more as an act of youthful indiscretion than otherwise, unaccompanied by any corrupt motive, which entitle him to legislative sympathy ; and that all liabilities of either censure, fine, reprimand, or expulsion, consequent to the commission of said act, be removed, and that the said William P. Hopkins be permitted, as heretofore, to enjoy all the privileges due to him as one of the Representatives of the people of this State.
The substitute of Mr. Murray was received and adopted,- Yeas, 66; Nays, 53.
On the Journal (p. 294) for Thursday, December 9, 1830, this final entry appears :-
On motion of Mr. Bailey to reconsider so much of the Journal of yesterday as relates to the agreement of the House to the substitute to the resolution respecting the conduct of William P. Hopkins, the motion to reconsider was rejected,-Yeas, 49; Nays, 75.
Thus, after a warm contest, in which great feeling was indulged
.
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on both sides, Mr. Hopkins was justly relieved from his unpleasant situation. Mr. Murray, of Lincoln, had formerly been Speaker of the House of Representatives, and was highly respected by all parties, which qualified him for the office of mercy he undertook, and espe- cially as he was adverse to Mr. Hopkins in politics. His appeal in behalf of the young, playful member was quite touching. It was generally believed that there was no corrupt design. As a proof that his conduct, though admitted by all to be very indis- creet, was not intentionally dishonorable, Mr. Hopkins soon after- ward married the youngest daughter of Major-General John Floyd, and was again elected to the House. His accomplished wife died in a few months after marriage, and he did not long sur- vive her.
This record concerning the illegal votes is inserted here as a portion of history, and also as a basis for reflection on the destiny of the two men. Mr. Hopkins had all the advantages which great wealth, refined society, and a liberal education could afford to esta- blish a name in the world. Political honors were heaped upon him at an early age. He was not deficient in abilities to work his way upward. His disposition was gentle and chivalrous ; but he had been accustomed to exercise his own moods, as youthful impulse or merriment might prompt, and he thus rendered himself unfortu- nately conspicuous by the harmless prank (as he considered it) which the House made the subject of grave investigation. It is said that the buoyancy of his spirits forsook him in consequence of this proceeding, though honorably acquitted ; and then, his sad domestic bereavement following, his melancholy increased until death terminated his sorrows.
In contrast, Judge Lamar had no such adventitious aids to rely upon, not even the prestige of family; for, although the name had ever been exemplary, it was indebted to him for its first enthrone- ment. His active genius, lofty virtues, and profound erudition would have given éclat to any name. There is no instance in Eng- land or America where a judge so rapidly gained public favor. In less than four years from his accession to the bench, he was its brightest luminary. He could not have been displaced ; there was no desire felt by his political opponents to give his office to another ; and it was his singular merit, his crowning glory, that both Union and State-Rights men would equally have renewed his commission. And, to complete his blessings, he was happy in his domestic circle. Wife and children, relatives and friends and everybody, loved him, and he loved all. Yet, amid all this innocence, this cause for satis-
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faction, there was a secret canker in his mind : he was unhappy. His angelic nature shrunk from the conflicts of his own imagina- tion; and, in his thirty-seventh year, he sought repose in the grave.
The author was anxious to obtain some production from the pen of Judge Lamar that would do him justice in showing the poetic beauty and harmonious structure of his style which were so evident in his speeches at the bar. For this purpose he applied to Major Iverson L. Harris, from whose reply the following is an ex- tract :-
I have no remembrance of any essay, at this moment, from the pen of Judge Lamar, though, by tracing the files of the Georgia Journal as far back as 1824, I doubtless could find some,-political articles, I mean. Judge Lamar's education was received in common schools and academies. He was the graduate of no college. Much of his time, until he read law, was behind the counter as a clerk. Yet no man had more literary taste. Nothing delighted him more than for his brethren of the bar to mingle literary anecdote or classical allusion in their arguments. He was a great admirer of Hugh S. Legare, of South Carolina, as presenting the finest model of the profound lawyer and accomplished scholar ; and such, since Legare's death, was the judgment of Mr. Justice Story.
As a specimen of Judge Lamar's style and reasoning on legal topics, I refer you to two cases in Dudley's Reports,-Brewster vs. Hardeman, and Kendrick vs. The Central Bank,-the latter sustaining notes, when the statute required bonds. They are both fine specimens.
I regret that I am unable to give you the outline of a remarkable case from Jasper, brought before the Convention of Judges. I think it arose under the statute in reference to charitable uses. The case was well argued by the late Charles P. Gordon and Thomas F. Foster, and others, was thoroughly discussed and authorities examined by the convention, Judge Lamar leading the convention to adopt his reasoning. An opinion unanimously was rendered.
During the interval between one convention and another, Judge Lamar was engaged in my office looking through my library, when he met with a case that gave him a new view. He pursued the examination' closely for several weeks, reading the authorities very carefully. When the next convention assembled he stated what had occurred,-how his opinions had undergone an entire change. The authorities were reviewed, criticized, and applied 'by the convention, and it unanimously reversed its former deci- sion,-Judge Lamar leading both times the argument and writing out the opinion of the judges. This is very remarkable, and furnishes high proof of his intellectual powers and honesty, more especially when it is remem- bered that William H. Crawford, Judge Law, Judge Dougherty, and, I believe, Judge Warner, were members of the convention. There is no report of this case in Dudley. L. Q. C. Lamar, Jr.,* now of Mississippi, has a manuscript volume containing both opinions ; but it is not accessible to me now. I give you my recollection of the matter.
* Son of Judge Lamar, who married a daughter of the Hon. A. B. Longstreet.
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Members of the legal profession have an opportunity to refer to Dudley's Reports for the cases at length ; but others not possessing law-books may see from the extracts here given the compact rea- soning and logical conclusions of Judge Lamar.
In the case of Kendrick vs. The Central Bank, the Commis- sioners of the Macon Bridge (then State property) were authorized by act of 1824 to rent the bridge annually to the highest bidder, taking bond and security for the faithful payment of the amount to the State. Harvey Kendrick became the highest bidder, "and the commissioners took his promissory note with security for the amount of the rent. By virtue of the act of 1828, incorporating the Central Bank, all debts due the State were vested in said bank, and, under the authority of said act, the note above mentioned was transferred to said bank., An action was instituted upon the note. by the bank, and the defendants pleaded that the note was void, not having been taken in conformity with the statute, which requires a bond." The plea was overruled by the court, and a verdict ren- dered for the plaintiffs.
Upon a rule nisi for a new trial, the question came before the Convention of Judges, whether the contract was void in not pur- suing the statute literally. The opinion written out by Judge Lamar, which was concurred in by the other judges of the conven- tion, occupies five printed pages, sustaining the judgment below. The following extract must suffice :-
That there is a well-founded distinction between an imperative requisi- tion of a statute and a clause merely directory to an officer, is illustrated even in the case of a bail-bond. Thus, a sheriff may take a bond with one security only, notwithstanding the statute mentions securities in the plural number. 2 Saunders, 61 c .; 1 Archb. Prac. 75. Again, the st. 12 Geo. I. c. 29, enacts that the sheriff shall take bail for the sum en- dorsed on the writ and no more; yet, if the bond be taken for more, it will not avoid it if no intention to oppress the defendant appear. 2 Wils.
60; 1 Burr, 331; 1 Archb. Prac. 74. The same distinction is supported in the case of Speake et al. vs. U. States, 9 Cranch, 28, in which the court held " that a bond taken by virtue of the first section of the embargo-law of January, 1808, was not void, although taken after the vessel had sailed, by consent of parties : the statute as to the time of taking the bond was merely directory to the collector." On the subject of statutory bonds generally, I am aware that there are dicta, and some decisions, which go to the extent that the insertion of conditions not authorized by law ren- ders such bonds void in toto. 3 Wash. C. C. Rep. 10. This point, how- ever, does not occur in the present case. If it did, it might be well worthy of consideration whether it would not better comport with reason and justice that the unauthorized conditions only should be void. 1 Gal- lis. 86. But, without engaging in that inquiry now, I will remark that the present case does not fall within the reason of those authorities, in VOL. II .-- 10
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which such bonds are held to be void, as no onerous or unauthorized con- ditions have been exacted from the defendants. The obligation incurred by them under their contract is only coextensive with that which the Legislature intended to impose. The departure from the statute consists in the form, not in the substance, of the contract. Where there has been a substantial compliance with the law, the want of rigid conformity with the mere letter of a statute requiring a bond to be taken is not a fatal objection to the bond. In the case of the United States vs. Morgan et al. 3 Wash. C. C. Rep 10, the court held that, although the second section of the embargo-law of December, 1807, directs the bond which is therein required to be given to the collector, yet it is valid if taken to the United States. (See also U. States vs. Smith et al., 2 Hall's American Law Journal, 458.)
In the case of Brewster vs. Hardeman and others, the question arose on the plea of the statute of limitations on an open account, whether, after the dissolution of the partnership, the admission of one partner can bind the other partners, so as to prevent the statute from obtaining in their favor. The case came before the convention in June, 1831, and was referred to Judge Lamar for an opinion, which was adopted by the convention in June, 1832. It occupies more than fourteen printed pages, elaborating the points and sifting the authorities with wonderful ability. In a letter to Mr. Dudley, in 1835, the Hon. Joseph Henry Lumpkin says :-
The case of Brewster vs. Hardeman and others, in this county, and of Wakeman and wife vs. Roache, in Chatham Superior Court, may be placed on a level with the best productions of the American or English bench.
The author has only room for the summing up of all the authori- ties by Judge Lamar in Brewster vs. Hardeman :-
The result, then, of this inquiry may be summed up in the following propositions :-
1. The authority of one partner to make contracts which bind the whole arises from the confidential nature of the partnership-relation.
2. When that relation ceases, the authority which grows out of it, and is dependent upon it, also terminates, except so far as a continuing authority, touching the unsettled business of the firm, is expressly dele- gated or necessarily implied for the benefit of all the parties.
3. A debt barred by the statute of limitations can be revived only by a new promise, expressed or implied, and for which the old debt forms the consideration.
4. After the dissolution of a partnership, a power in each partner thus to revive against all a debt, from the obligation of which they are legally absolved, does not fall within the exception mentioned in the second pro- position, because such a power in each could in no event become beneficial to all, and therefore cannot be implied.
5. From the united force of these propositions, it necessarily follows
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that the acknowledgment of a debt, or a promise to pay it, made by one partner after the dissolution of the firm and after the debt has been barred by the statute, will not revive the debt against the former partners.
As an act of justice to the chairman of the committee and to the distinguished guest, the author makes room for the following correspondence :-
MILLEDGEVILLE, November 8, 1831.
TO HIS EXCELLENCY GEORGE R. GILMER.
SIR :- At a meeting of your political friends, the undersigned were appointed to invite you to partake of a public dinner, on such day as will suit your convenience, as an evidence of their cordial regard and of the high estimation in which they hold the purity of your character and your public services as Chief-Magistrate of the State.
Permit us, therefore, to solicit your acceptance of the invitation, and to add for ourselves, individually, the expression of the high consideration with which we are, sir, your friends.
LUCIUS Q. C. LAMAR,
HENRY BRANHAM,
JAMES CAMAK,
S. HARLOW,
WILLIAM GREEN,
WM. C. DANIELL,
WILLIAM TERRELL,
ASBURY HULL,
ELIAS BEALL,
ROBERT AUG. BEALL,
THOMAS STOCKS,
JOHN H. HOWARD,
JAMES BOYKIN,
GEORGE H. YOUNG,
JAMES S. CALHOUN.
MILLEDGEVILLE, November 8, 1831.
GENTLEMEN :- I have received your letter of invitation to partake of a public dinner, which you have done me the honor of saying is intended as an evidence of your personal regard and the estimation in which you hold my public services as the Chief-Magistrate of the State.
My friends know my simple habits, and opposition to being made the subject of honorary distinction on account of any official station which I have held. I have therefore, in accepting your invitation, been influenced solely by the desire of acting in accordance with the wishes of my personal friends, and of those with whom I have long been politically united in defence of the rights of Georgia and in endeavoring to preserve the con- stitutional liberty of our common country.
The situation of my private affairs renders it desirable that I should return to my own residence as soon as possible. I will therefore name Thursday next as the day which will best suit my convenience to attend a public dinner.
Accept, gentlemen, for yourselves, and those you represent, the as- surance of my high respect and regard.
GEORGE R. GILMER.
Hon. LUCIUS Q. C. LAMAR, and others composing the Committee of Invitation.
Among the toasts offered at the dinner, and received with marked approbation, were the following :-
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By G. M. DUDLEY, Esq. The Honorable Lucius Q. C. Lamar. A junior in years, but a sage in jurisprudence. The wisdom, purity, and impartiality of his administration, hitherto, furnish such pledges of future usefulness and eminence as all parties in the Legislature are bound to regard in the approaching election of judges.
By JUDGE LAMAR. When the mind is engaged in recurring to able and faithful public servants, the name of the Hon. John Forsyth presents itself in distinguished prominence.
Having the evidence on which, in part, his judicial reputation was founded, the reader has nothing more to learn concerning the gifted and virtuous LAMAR. The author was personally acquainted with him, has often heard him in court, and has spoken of him on that basis. It is impossible to exaggerate his claims to the respect of mankind, or to hand to posterity an over-colored picture of his excellence. Such was the anxiety of the author to procure a vivid sketch of his character in different phases, official and domestic, cheerful and melancholy, that he applied to Gen. Mirabeau B. Lamar, formerly President of the Republic of Texas, and to Col. A. H. Chappell, his brother-in-law, for incidents confirming still more abundantly the award of public opinion ; but these gentlemen, though treating the request affably, declined the task,-doubtless from motives of delicacy. A few reflections, or a brief narrative, from men of such acknowledged abilities as Gen. Lamar and Col. Chappell, unfolding the depths of character and the sources of action applicable to their deceased relative, would have added much to the interest of this memoir.
The proceedings had in Baldwin Superior Court before his Honor John G. Polhill on the occasion of the death of Judge Lamar are here given :--
TRIBUTE OF RESPECT.
BALDWIN SUPERIOR COURT, July Term, 1834, Monday morning, July 14.
The lamented death of Judge LAMAR being announced, on motion of Edward Y. Hill, Esq., it is ordered that Edward Y. Hill, Samuel Rock- well, J. H. Howard, Wm. H. Torrance, Thomas Haynes, C. P. Gordon, John A. Cuthbert, R. K. Hines, I. L. Harris, and James Smith, Esquires, be a committee to recommend suitable testimonials of respect for the memory of the deceased, and that the committee be requested to report to-morrow morning at the opening of the court.
The court adjourned, without doing any business, until to-morrow.
Col. Rockwell, from the committee appointed by the foregoing resolu- tion, submitted the following, which was adopted :-
On ordinary occasions, when we are called to mourn the loss of those dear to us in the private circles of life, our grief for the bereavement should be indulged in silence; but, when the social ties formed by pro-
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fessional brotherhood, cemented by an uninterrupted intimacy for a series of years, and strengthened by an unbroken chain of friendship, are sud- denly rent asunder by the hand of death,-when the virtuous, the gifted, the exalted of our land are stricken down under the most afflicting cir- cumstances,-it becomes our melancholy privilege to give vent to our feel- ings by a public expression of sorrow. The custom which has consecrated this privilege has its origin in the best feelings and purest affections of the human heart. Such is the sorrow awakened by the heart-rending catastrophe which has deprived us of the useful labors of the Hon. LUCIUS Q. C. LAMAR and consigned him to an early and untimely grave.
The qualities of a judge are best appreciated by those who have con- stantly witnessed their exercise; and the virtues of a man can be truly estimated by those only who have had a long and intimate intercourse with him. Justly, then, can we appreciate the judicial qualities, and truly can we estimate the virtues, of our lamented friend, who have marked his short but brilliant career,-who have known the powers of his mind and the excellence of his heart.
At the bar he was an ingenious and able advocate and excellent jurist. Possessing a mind far above the ordinary grade, distinguished alike for acuteness and discrimination, it could grapple with the giant difficulties of the science and master its abstruse theories. On the bench he ex- hibited a soundness of judgment and depth of learning beyond his years. His candor, ingenuousness, and modesty were no less conspicuous than his amenity and kindness to all in any way connected with the administra- tion of justice. His expositions of the law, his charges and instructions to the juries, were uniformly marked by precision, beauty, and eloquence, imparting interest to the subject and instruction to the hearer. Devoting himself to the arduous duties of his station, he seldom erred in judg- ment; but, ever anxious that his judicial opinions should be correct, he sought occasion for their revision, and, with the noble impulse of an up- right mind, rejoiced in the opportunity for their revision. Always guided by humanity, he truly administered justice in mercy. To the youthful aspirant for professional distinction he was indeed a friend, exciting his ardor, aiding his exertions, commending his efforts, alluring him onward, and extending a fostering hand for his support when difficulties sur- rounded him.
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