Changes in the
Law and its Procedure Since 1850
The following is Chapter 6 from
Hiram Parks Bell’s Men and Things, published in 1907:
“At the time of which I write,
Joseph Henry Lumpkin, Eugenius A. Nisbet and Hiram Warner occupied the Supreme
bench. Such men as Edward Y. Hill,
David Irwin, Junius Hillyer, John J. Floyd, Garnett Andrews, Herschel V.
Johnson, Francis H. Cone, Augustus R. Wright, and many other of equal ability
presided on the circuit bench.
“The Supreme Court was established
in 1845 after a protracted struggle.
The earlier volumes of its reports contain monumental evidence of the
independence and learning of the first three judges. Lumpkin was learned, eloquent, impressive, and humorous. Nisbit was equally learned, dignified and
elegant; Warner was cold as a Siberian icicle, and clear as a tropical
sunbeam. I confess that he was my ideal
of a judge. I never think of him, as he
sat upon the bench, struggling, sometimes alone, to uphold the constitution and
the law against the debauchery and dishonesty of so-called relief legislation,
without applying to him the magnificent euglogium pronounced by the
Attorney-General on the dead Vice-President when Cushing said of King: ‘He
stands to the memory, in sharp outline, as it were, against the sky, like some
chiseled column of antique art, or consular statue, of the Imperial republic,
wrapped in his marble robes, and grandly beautiful in the simple dignity and
unity of a faultless proportion.’
“The last 50 years have wrought
marvelous changes, in Georgia, in the law, its forms of procedure, and the
questions with which it deals. The War
and the altered conditions resulting from it have contributed greatly, if not
mainly, in producing these changes.
“Before, the principles, practice,
and forms of equity and the common law were separate and distinct; now, they
are merged. Then, the English common
law forms in all their ‘vain’ repetitions, and technical refinements and distinctions
in pleadings, were followed; now, the pleader states his client’s case---in law
or equity, whatever it may be---in short, pithy paragraphs. Then, all persons interested in the event of
the suit were incompetent witnesses; now, all parties living and sane (with a
few exceptions) are competent. Then,
only the parties to the record could be heard in the case; now, anyone, in any
way interested, may intervene and be heard.
“There has been as decided change in
the subject-matter of litigation as in the forms of proceeding. The institution of slavery was the
foundation of a stream that carried fortunes to the profession. The farmers became rich, breeding Negroes,
buying land and making cotton. The
validity and construction of wills, breaches of warranty of the soundness of
slaves, action of trover for their recovery and debt for large amounts of
indebtedness upon their sale---these and the trial of disputed land titles, as
population increased and settlements were extended raised the questions upon
which the legal giants fought their battles and won their fame and fortunes.
“This was the agricultural age of
Georgia. The abolition of slavery
eliminated from the courts this source of litigation, and substituted a totally
different kind of questions and controversies.
The ordinance of the convention of 1865, providing for the adjustment by
the courts of Confederate contracts, upon the principles of equity and justice,
the depradations and trespasses of home guards and robbers during the last
years of the War, and the relief legislation of the reconstruction period,
filled the courts for a few years with a flood of litigation. But this was necessarily temporary, and soon
passed away. Now (1904), commercial and
corporation law and practice are regnant, and confined principally to the
cities and larger railroad towns. In
the rural counties, the practice arises from the levy of distress warrants and
executions upon the foreclosure of liens, and the defense of Negroes for
larceny, robbery and burglary usually by assignment of the court. How the hundreds of young men, annually
brought to the bar by colleges, universities, and otherwise, are to win bread
by the practice in the light of the present outlook is their problem, not
mine. It is alleged that some of the
more enterprising members of the profession---especially in cities---have
henchmen employed to hunt up business, and that they follow a train wreck, like
vultures, the scent of a carcass. I
hope, for the honor of the profession, that this allegation is a slander.
“This progress, reform, or certainly
change in our law, commenced in 1847 upon the passage of the act which
substituted for the common forms of pleading, the short forms, popularly known
as the ‘Jack Jones forms.’ The law
allowing appeals in the superior court was repealed. The marital rights of the husband as to property owned by the
wife at the time of marriage or acquired by her after marriage were wholly
changed. The homestead laws enlarged
from their pony proportion up to sixteen hundred dollars worth of
property---real and personal---which, however, is practically nullified by the
creditor invariably taking a waiver note and mortgage on everything that the
debtor owns or ever expects to own. The
school law which humanity provided for the education of the poor has given place
to a system that imposes annually upon the people of the state a tax of nearly
two millions---a large portion of which is devoted to training Negro children
in idleness and crime, under the pretext of qualifying them for useful
citizenship. These and other numerous
radical changes have been made in our law to such an extent that if a Georgia
lawyer had fallen asleep in 1850 and waked up in 1904, Rip Van Winkle would
have been no more remembered! Whether
these changes were all wise and promotive of the public interest raises a
question upon which opinions will differ.
“The British government sent an agency to this country to investigate the question of law reform, who carried back copies of the ‘Jack Jones’ forms of pleading, which were enacted into law by Parliament. The youngest of her American colonies, in less than one hundred years from the establishment of its independence, furnished to the Mother of the common law her form of pleading.”