APPENDIX B.

SOME KALEIDOSCOPIC GENE'RALIT'IES.

ADDRESS BY
A. P. PERSONS,
01r TALBOTTON, PRESIDENT OF THE GEORGIA BAR ASSOCIATION.
"Knowledge and wisdom far from being one,
Have oft-times no connection. Knowledge dwells
In heads replete with thoughts of other men;
wisdom, in minds attentive to their own.
Knowledge, a rude, unprofitable mass,
The mere materials with which wisdom builds,
Till smoothed, and squared and fitted to its place,
Does but encumber whom it seems to enrich.
Knowledge is proud that he has learned so much ;
wisdom is humble that he knows no more."
In obedien:ce to the first by-law of this Acssoci<ation, command-
ing that the Pres:ildent shirull open meeting with an annual
address, I come before you to-day with a most cordial greeting,
thoogh, I ]liave no message to deliver, a11d I bring to y:0u n:oth-
ing that is new, or pmfolmd.
In justification of my present appearance, I plead: "Respect
for law." It is seldom in gootc1 ta:ste for a speaker to make any
. reference to himself. Indeed it is doubtful that he will ever
do go in a thor.oughiy polite rund ;vvell considered a:dldress, yet, I
trust that my departure from this rule {)f may do no
to the good taste of th'e members' of this Associ'ation,
amid may even comport with tlle dignity pertaining to the official
station'tempromrily occupied here by me.

I
SOME KALEIDOSCOPIC GENERALITIES.'
63-
In view of the many excellent acMresses tlhat have been deliv-
ered before this Association within tihe past twenty years or
more of its existence, it wasr my ea,rnest desire to measure up
to the standard, a111cl1Jo aibly meet this occasion. B'ut the many
books I 'have rea:drand the many opinions I have pondered, pre-
liminal1J to p1'epmaitlion fo1' this shlort. hour, have served mainly
to decrease my COIIlfidence, increase my diffidence and encmnber
me with materials. that I can not aJdjust. Oliver Wendell
Holmes teNs us that a man who is willing to take a:rrother's
opini'on to exercise his juclg1nent in the choice of whom to
follow, wihich is often as nice a ma.tter as 'to judge of things for
one's self. It is a maxim of the law that, "It is better to d1ink
at the fountain th'an to sip i11J the streams."
Elbert HoUJbbrurd Slays (pa'l'don. me for quoting him) that, no
Olte ever prepares a speech or lecture wllo clioes nOit himself derive
more bene:firt therefrom th
1
Ml do any of those hear him.
However true or untrue this statement may be as a gener-al prop-
osition, it will be manifestly app'licable to the cruse at bar.
I ha.ve discovered tha:t station adds 1lothing at ail to
one's capability.
I 1vas fully confident tHat ti!Ie PreSiident of iiliisr Association,
lle mig1ht be, hy virtue orf 'his office, a,n omcle
of tJhe law, and that easily and certainly he could 1a:cltvance SO'llncl
and m.>iginail views concer11ing jm'i>spl'll:ctence if:lhwt w!ould enter-
tain and inform a cultured and critical a.ssell1blage of lawyers.
This conficle11ce was re-enfmcecl in my pmtrcu1aJI' CJruse by the
k11owleclge tllat the first session of the Supreme Court of GeO'l'-
gia was held in the little tol\vll from which I come, Talibotton.
I h'ave fmmd that I \Vials mistaken. I lrave learned that not one
sound thought ap1Jertaining to the' law has ever occurred to me,
has not occurred to and been expressed by many others.
'Dherefore, upon tihis occasion, I m't1st invo'ke the rule so
kiruclly fol1mved by America's great Chief Justice, John J\ar-
&hall, of whbm we read tliat he "''as endowed by nature with a
22 GEORGIA BAR ASSOCIATION.
patience never s;nll')Yassed-patrence to hea.r thiat whJich b:e knew
aJlready, <and, even patience to hear thla,t wihlicb! he di61a'J).proved.
Tlhere is, perllrups, very little that could be said of juris.pru-
dell'ce .'tfuiat would not sound :fiaan:iliar to any well-read bwyer
who h'as a good memory. And one might srufely affi1m oo mn:ch
of any other field di intellectual a:chievement wlh'en talking be-
fOTe his g'uild.
Wendell Phillips said in !his clay th:at there was no humor .
extant that was less than four thousand. year;; old. All humor,
in oo far as fhe could ascertain, was at least as old as ancient
Egypt and how much oJ:cler he couild not know. Hmnm up to
date h1as only dhanged! in its form and jokes in tlwir aprpliea-
tioo. Neal'ly as much lll'!lJY he sai'c1 of law as 'a science and of
justrce 'M a:d!mini,stered.
Itmrutters not tllat one, on an occasron like the .pre:;ent, must
be an a11d 1a :Jiollower of lawyers wiho lblave preceded
him. Are we not stnJdying precedents and do we
not antiquity?
It matters not that 011e muSJt even pillage tm:e wmks of other
men. The socialistic a11d communisti'e doctrine as to rights of
property lb:as long been in actual operation in the matter of intel-
lectual productions.
Tlhe New York Sun, snme time silllce, charged Robert Inger-
soll witlh: h:aving .purloinedi the gmn:cle&t tho:ught in his eulogium
on Roscoe Oonklricng from Buckle''S Hlistory. One day in the
United States Se11ate Jeremiah Clemens, otf Alabama, thrilled
his hearers vVIi:tll a pa&Siage most eloquoolt. Next day an o1d 8en-
ator came IOl'Wlard wii_tlh a 'book to prove th
1
at it w.as stolen from
Daniel vVebster. Immediately another Seruator arose with
proof th'at Mr. Wehster hlacl' stolen it from William: Pitt, and,
wlh'ere :Mr. Pitt got it !heaven onl:ylmO!wa. S'tome of the 1VTiters
of 00'lltinental Eur01pe hro11.1:giht the accusation against the Eng-
lish lawyer;; of constantly pillaging the Roman va;w without
ever cit,ing it. Bouvier tens ltiS iJhJrut if the rpl'inci'J)les f'Ourrd
in aJlld: Fleta., Fortescue .andi Bva:ckst011e, and in tlm
trealtises 011 conmmrci'al }!lJW aa:tld equity and 1nany of the juclg-
SOME KALEIDOSCOPIC GENERALITIES. 66
ments of ou1 comms, w!hiclh hiacve been bk)rrbrtved; fr!Om the Roman
system, wtithout giving irt were expunged from those-
ruuilhors, tiherrr works arudl judgments woruld he deprived of their
gt'e'ates't om:aments. .
And yet, Mrr. Dj)oly, Peter Du.m1's: :11J1. Dooly, sa:ys tlluat \vihen
he attends a; meeting rund a srpeaker hegins uis remarkS' by refer-
ence to ancient Greece and ancierut; Rome, that he picks up his
blat allld leaves the IJ:JJall, well knowing tlhat aJlJY speaker who goes
oo fm blade to get a sta1't has nortlhing to tell worth hearing. And
this from Mr. Dooly, Mr. Dvoly, whose humor comes from an-
cient Emt al1d wthooe Hibernim1 pbiilooorphy is derived from
1!he ancient Greeks.
It would not be impertient to my line of thorught to 1efer this
morning 1Jo la;wyers who ftourishedl before Uhe flood, co:uld we
find any record of who they were and what they accomplished.
But six short clhapters ()f Genesis contain all we kfi!<)W of the
ante-diluvian w'mld, :aJ11'd wih!ile tihbse d!a15 tihm"e werre migihty
men and men of real'o'W'Il, no mention is made of any human
. larws norr of lavvyers.
Wlhwtever may yet be learned orf tHe profession in the pa:st or
may be conjectmed of its poooi'bi:lities in tihe future, it h'as
already been determined1tpon high authority who will fo:rever
stand first among lwwym'S. The. great co:min.enta,tor, C'njaciUJs,
declares that the Rom:an jurist, Papinian, prcefectas prcetoris'
ml!der Seprtimius Seveaus, w)as ttihe fin.'Sifj of alll!llW(Ye:ra wiho htave
been m wiho are to be, tllrat no one h-as ecver sur')Yas.secl him in
leg1aJ kno!Wledge a.nlc'L no one will ever eqTial him. And yet, in
so :far as we knorw' Parpinian may followed tlhe beate!ll tracik
and have been hut an imitator of those "rlh'o preceded him. Vir-
gil b:ormwerd m'a;uy of 'bJi,s tfhb,ltgfusts from Elll1ius. Moliea'e, a11d
even Sh1akespeare, imitateclj PJ:aut.uls. Ma:caulay hrucl many
imitators. Even I Slllaliluse S'ome of his th1mder.
Cicero, tlla.t shi'nring ligl:Ut in '3: corrupt a111d age, Cic-
ero, whb O'Uit in a;ll his ctiS:COThl'SOO h:liVe orf country', love
of h'ome, ll)ve of friends, love of nartml'e, love of J:aw, love ()rf God,.
66
22 GEORGIA BAR ASSOCIATION.
eX'a1ting the Il!oblest sentimen:l:s move the hum:an soul
. '
'\Vias raotor aJS well as oratoJ. He pl'acticed under
masters to learn the art of commanding his voice and early in
his career he wa;s an imi<tlatlor of Horoonsius. Cbming from an
ancient to a maclern 1awyer: Among tib.e triumphant dm:ortees at
tlhe silirine of Trhiemis who flourished! in t!h'e early days of
ica vVilliram Pinkney siiarrds pre-eminent. Grera t as a lawyer,
great as an great oo <a cliplomartist, des:criibed as orne vvhb
"sued lusrtre upon letters, rell'Of\V'll up'On CollJg1ress 'rund gll:lry on
his counJtry," the briHiant, tJhe aJclttni1'raible Pin!lo:l'ey w
1
a& well
lrnmvn to 'l:uave been an of Er01kine. We <are to1c1 tlh'a.t
Th!omas J Pri'1J.1ciple:s a:f Lirbe11'l!;y \vere bwb <a re-ecib.o of
RoUIS8eau's Rigili.ts of :N]run, ,anrcl tih'ere irs notQ1ing orf wh:ich: we
appea11; to be so certa:in as tbia,t we <are nort certain of any man's
indi'i"id'tl!ality, or :of the 1'eal ori:gin of allJthing intellectual
For fUl'tib.er vimvs on origina1it\Y and iruCLivicluality I refer you
to the Autocmt of the Breakfa:st Ttarble, ru1d partJi:c,ularly to the
three J oib.J11S cliscwsseCL 1:lherein.
In so fa11 as I can leM'n, th:e origi1ial, creative power, has
never been considered an essential of a Cer-
tainly 1110t within the piast twelve or hiUJlllclred yeairs.
At tihe bar allcl on the bendh the great olbject is not to be origi-
nal, but to he oorrec1J, according to tihe preooritbed formo of la;w.
The lawyer needs not originality, but authority, not imagina-
tion, but cliiSICernment, no<t bt1t reason, not sentiment,
but fact. He needs to varied knowledrge and: en}arged
views; wisd:om is a gift from heaven. The "world of mind"
is the lawyer's domain. In furtherance of truth he may use
what he will frmn any source he may choooe, unless the law for-
bids it. He has no need for quotation markB, because he cites
authorities not for the pm'poiSB of givi.ng credit to anotiher but
to strengtJhen his positinn by the weight of a name. As is well
kn'Own to every m:an carparble of corrootly thinking, the princi-
ples of mathematics were not created by man, but were discoN"-
ered by him, and when once declared they became the property
SOME KALEIDOSCOPIC GF;NERALI'f!ES. 67
of mankirrd. Pythiagoras :fi1"SSt 1demoootrated the 47th prOipos.i-
tion of E,ucli,cPs Elements, !Uiboot tihe sqn;are of the hyportJhenuse,
but Pyt;hiagoms only discovered a truth thiat h'wclt always existed.
The profoundest student of jurisprudence has never created
a new principle. He has perceiv!1d what was previously
ered or he has discovered! wlhat already existed. Ever_y sound
legaJ principle is as old as the first fa1cts out of which it could
gmw
1
al1d it m'atters not by whom clriscoverecl, nm wihen, rro11.
where, it loses no value by reason of use and it can never become
obsolete. Courts have looked to the Roman law not 'beca:use ocf
any superi\lr regard for the Ronl'ailll, but booause it is a source
from which so many just rules flow. The Roman laws have
more powerfull,y affeeted the interests of than have
tih:e ph,i.looophy and the arts of Greece. The glory of Greece
her miUII.'ble SJtatues, the glm'Y of Rome W1a1s ihe1 lwws.
The philosophy of utility ancl progress is as a;ptpEcaible to
as it is to any other S1cience. If we are to believe
Pluta,tch, Plato carriecl so far the feeling that the real use ocf
lll!rutihematJias 181 to lead men to the Jmorwledge of ab.s,tlact, essen-
tial, eternal truth, i!hat he considered geometry degraded by
beirrg app<lied to 1a11y puqJose of vulgar utility. When a friend
had framed a machine of extraordinary power, on mathematical
pri11eiples, Plato remonst1ated ancl declU)'ecl that this was to
degrade a noble intellectual exercise into a lo,w craft, fit only
fm carpenters and wheelwrights:.
J ;urislJruJd'ence is 1a science reS'tirrg upon natural truths and
The lmowledge and oom]Yrehensioru of these truths
and principles, and the correct use of them, constitutes' tihe sci-
ence of lruw. It includeS the metih'o
1
d of arriving at tru;th and
the manner of achninistering justice. It is for the 1Jlll1Jose of
giving a wise inte11pretation to the laws and of making a just
appJicUJtion of them to cases they arise. Jurisprudence is no
part of speculative It is not intended for intel-
lectual exmcise. It is not a :field s:olely for playing at quillets
or for disiplayiug teeihnical skill aiJicl ingBnuity. Its object is
to lead iihe way to suJbstantial truth and its, purpose is to do
68
22-GEORGIA BAR ASSOCIATION.
su!bstantial justice. It is important to lrnoi\V' the properties and
quaJities ill the vacrious metals', brut this lmotwledge is impor-
tant, because o the advantages to be derived there-
from.
We ma.y lrnow: rtJh!ait iron is the cmmrron metwHic eletmenJt,
being a almost lrniversal occurrence; th'at it is usually in ifue
:form: of ran oxi'Cle, 'Oi" 131 hychxm:s oxi:d'e, 1Jbia.t its. coror is usually
d:a.rk bro!WTI. from oxidation or inJ,purity, hut when it is a
grray or wilhlw roetail; we may its its atormic
weigtht, its speci:c gravity 'ancl its magnetic properties, but if
we clo not kn<YW how to convert it into its itseful fonns we lose
ii:s real 'benefits rurud raldvantages.
J urisrprudence, the know ledge of rules', lJCI.'incirples, maxims,
rights and remedies, is of no substantial be:fit to mankin:d
lmless usecl fo[' the purrpose of :finding and! aclroinisrtering
jus:t.ice.
If courts dec:ild.ed nothing but questions of form arrd nratters
of pcractice they would be tHe most useless of our civic in:stitu
tions. The merits of a woulcl never be deter:minecl
and subsrtan1Jiral justice could never be Nevertheless, forms .
and rules ,a!re aibsohutely ess'e11tiiail. to dO!rrect legal investigat:OOn.
It is impossilble for the legal mind to conceive of such a con
clition as oourts with no forms and rules to guicle them. If 1ihe
raw gives a right it must rpreseribe 3l way to enforce it. If ifue
law fm,bicls a. wrong it must prescribe the way to redress it.
ill an rudichess Wore this Associlrutilon: nineteoo years ago-
Trut!h at b

Loga:nJ E. Blookley d'i_iscns'sed the jus-

ti'ce of prtocedure. It \Vas my intention to use some extraots
from tihat .aJdlcllress, :f:lru,t so a'lllcl dbes it corntinue
from one passage to a;nother, tlJia.t it sbancls a comtpa.ct mwster--
pieoo too to be muti1atecl. In this connection I refer
you to the whole of it. But, the :final conclusion of Dltlr fm"'ller
Chief Justice was tbiat truth at the ba-r is of no avail unless
substantial justice shall be done. Sai'cl he: "Let procedure be
put urpon w basis of principle and modern commDn F;Jense. There-
SOME KALEIDOSCOPIU GENERALITIES,
6'9'
''
is a clanror aihroad for justice, for juSitice of stibstanee and 'leg
isla tors, the Courts, the Bar and the people may p'repare to rud
ministm it on a system of procedure adequate to modern de
man d."
The educated and intelligent layman pauses and reflects:
"Every man is presumed to know the law. Every m'an has
the legal right to represent his own cause before the coui'ts. Yet
after h:un:dreds of years of enlightenment and progress such is
the system of practice, that those who are trained in the law
have a:pparently great difficulty in guiding a CJa8e through the
courts. It often appears that a date or a name or a punctuation
point is of more consequence than 1Jhe su!bstantial merits of the
N eady hialf of the questions decided hy Courts of Re
view harve nothing to do with the merits of the matter in con
tl'Oversy, but are disputes about proper practice. It, therefore,
seems that the system of practice is lmnecessarily
or, nearly one-ili.a.}f the lawyers are inexcooaJbly ignorant."
In his letters on the stndy of history, rudd:ressed to the great
gmndson of the Earl of Clarendon, Bolingbroke, after speaking
of the profession of the law as "in its natU?e the ndblest and
most bene:&cial to mankind, in its abuse and abasement, the
most sord.i1d and pernJici'ous," makes 1ib'e following remarks both
eloquent and true: "There h'ave been laWyers that were orators,
pibJilosoph:ers, 'biistori:ans, tihere i!Jiave been Bacons and Olaren-
dons, my lord. There will be none such 'runy more, till, in some
better age, true ambition, . or the love of fame, prevails over
avarice, and till men find leiSIUI'e and encouragement to pre-
pare themselves for the exercise of this profession lby climbing
up to t!he "vantage ground," so my Lord Bacon calls it, of ooi
ence; insteaJd of groveling all their lives in a: merun ibrut :painful
application to all the little acts of chicane. Till.this !ha!JYPens, the
profession of the law will scarce deserve to be ranked among
the learned professions; and whenever it happens, one of the
"vantage grmmds" to which men must climb is metaphysical,
and t!he other historical knowledge."
6 g ba
'1',0
The objects of this Association are high and noble and its
reveal the fact iJhiat 'haJS never departed from the prur-
declared upon its organization.
We are not here to promote any selfish ends; we are p_ot here
to d,evise ways and means to inc.rease our incomes as :qtembers
of the Bar, hut, we are here to do what we can to advjl.nce i;lle
science of juris;prudence, promote the administration of justice
throughout the State and to enoourage and require such conduct
the part orf membern of the Bar as will preserve and increase
for law.
We are not here as defenders of the lruw. Up_der our
form of government the people make the laws throup,'h their
fthosenrepresentatives, and our interests and our responsibilities
in matters of legislation are identical with those of
awl intelligent citizens.
We do not arrogate to ourselves the right to determine what
Shall be the law, or what changes shall be made in the law, but
from time to time we make such suggestioills as appear to be
good, 'and we stand ever realdy to receive suoo sugg-estions as
appear to be wise. Realizing that no human system can ever
attain. perfection, vve yet would ha:ve tJhe law embody all that is
excellent, for we see in it the conserving ancl1Jreserving power
m all ''?enerfits. We acknowledge no emltihly ruler but
the law, and we desire and advocate its suprenmcy.
The supremacy of the law is the hope of the future. The only
attractive field for honest crupital-the only attractive field for
honest labor, is a land where law is res;peoted and where lww is
the rule of conduct.
The purposes of the lruw are wise and :beneficent. And its
principles are the bequest of many centuries of experience. The
law is t
1
he dictate of reason, and is a rule of right. It delights
in equity, and it covets perfection. It dislikes delay and comes
. not to the relief of the careless and negligent. It rewards the
man who is diligent in his business, aml for every right it gives
a remedy. It is no respecter of persons, hut it succors the ignor-
SOME KALEIDOSCOPIC GENERALITiES. 71
:ant. It forces no one to do vain or useless things, and it .re-
quires nothing to be done thtat is impossilble. It doeSI not en-
oourage litigation-it favoll'S compromise and peace, but those
who appeal to it must abide it.
The simplicity and the widO!Ill of these bed-rocks of the law
are beautiful 'and delightful. Dolosus versatur in generalibus
a maxim of the law. "A deceiver dea,lSI in genemls." N eve>r-
theless it has long 'been the practice of misinterpreters and per-
verters to deal in p'roli:xities and compil:eocitties'.
SubtleneSIS fiction were introduced! by the Roman law-
yers to defeat the written srtatutes, an(!! as eal'ly 'a& the time of
Oicero jurisprudence lbeeame complicated. There are prece-
dents for what is had, as well as preeedentsJ for what is good,
.and precedent can not at all times be an infanible guide to truth.
Tire paths of emor are l'abyrinthian, 'but truth loves the
Course thtalt is stm1ight. "Trutih }o!Ves a'l1 open field and never
fights in 'amJbush or under oov-er." It i'S a maxim of the law
that "tnt1Jh fears n10thing hut concealment." .
The dbjeet of all legal investigation is the disco!Very of t1uth.
Rules of procedure, while intended inciclentaUy to define the
issues and expedi,te legal inv-estigrution, are primarily
lished for the same prominent end-the disCOivery of truth-the
truth of the merits of the controversy.
Sound principles never change, but rules, forms and prec&
dents change, and ought to change (in the lig'ht of eX'perience)
to meet existing conditions.
In the 1Jhirteen
1
tlh voll.lme of Georgia, Reports-Lowe vs.
Morris a11cl another----"on iilm 'question of amending 'a writ of
error by 1attaehing a seal-Justice . Lumpkin, afile'L' dismlSS'ing
iJhe use, the fm1.1:ns and anrtJiquity of seals, 'wm1 afiter s1lating th'rut
printed seals impart no greater deliberation, no1 do seais elise'
tinguis:h identity, said:
"For myself, I desprse all forms lb!aving no
se:nee or su'bstance in tihem. .A:nrl I can &larce1y suppress a
mrrile when I see so nmcih! aJttJache'd to
72 22 .GEORGIA BAR ASSOCI:ATION;:
sueh trifles. I would cast away at once a'llld fore,rer, all .law
not founded in some rea:S'Oill-nati.lraJ.; or. poilitical. I
scmn to be a 'emf a.dscript' to tJhingi:l obsolete. . . . ..
And fo.r titre 'gla!dsome ligihts of I would sooner
far go to the reports of Hartly (Texas) and of Pike Eng-
lish ( A.nlmn!3ia8), tili.ran erose arru ocean tihree thollS'arid miles in
wildJtlh, and then ti'avel urp thie strean1 of time for three or!' four
centuries
1
' tJo search for legal wisdom,
"I \vou;lcl as soon g'O back tlo the age of monkery
to learn tn.m religion; or to Henry VIII., the British Blue-
bem1d, to study constitutional liberty, -as to search
tlh.e rec.>owl8 of black-letter for rules to reg't1late the formulruries
. to be observed by Courts od: rtil.liis clay.
" It is true tll'art; O'oke, and Hale, and Holt
the best m11d rwiseSJt men of tiheir genera!t.ion were
unable to i'ise a:bove iJb:e ignm'ance and superSJtition which
pressed like a nightnmre upon the intellect of nations. And
yet we, 'are forever goring back to the good oH
days of witclhcrdt and a:s1t.lology, to precedents fnr
regula.ting the proceedings of Oomts, Let the
judicial and leg1islaitive axe be laid to the root of t1he tree.
"
Georgia's first Chief Justice was a man after the manner of
Lord :Mansfielcl and John :Niarshall.
LorJd Eldon is sa;1d to lhve adihere:d to wihait was establisihed
because it was established, but 1v[amfield, :Marshall and Lump-
kin regarded I'eason a:rud logic as the foundation of lmv. T!hey
l'ecog11ized j as lli prracti'Cal sciooce, and tJhey per-
mitlted neither antiqrujart:ecl 01'lll:S nO'I' metaphysias
to prevail against gOOd sense .
. Lord Brougham tells us that England in the time of George
the Third had many lawyers "who were a:cquainted with the
whole of the law, which they had st11died accma.tely, and had
studied profoundly, if depth can be. predicated of those re-
searches which instinctively dreading to penetrate the deep-lying
SOME KALEIDOSCOPIC GENERALITiES. 73
vein of first principle, ca:my .ilie }aJborer th:e sh'allower-
bed that contains the relic of former worlunen and make him
rest sati,s.r:fiecl with nlrese patterns 'as ttllre gnide aHd tare 1'Ule. TheSJe
lawyers were extremely suspicious of 'any enlarged views upon
so serious a subject as the law, and they hacl an exch1sively ven-
foi' antiquity."
the changing of eSita:blished rules shou1d evm be a mat-.
ter of _much deli
1
beration, this veneration for antiquity rhas ever
been an impediment to judicial progresS<. The true scientific
method is for lruw to follow progress and not fetter it.
"In Plato's opinion man was made for philnsophy; in Ba-
con's opinion TYhilosop;hy W'aB mrude :for In J\1)ans,fielcl's
q>inion man was not made for jurisprudence, but jurisprudence
was made for man.
It wrus
1
Said of Lord J\1)amJfie1d iliat lhe always anxiouS< :to
get at the rbody of the case and to so deal with it as to give mer-
ited succeSB to tmdou!bted rl:gili.t. I can imagine that 'before him
it was an unusual occurrence for homs of time to be lost in an
effol"t to _shaw the nicest and most exact distinction 'between
tweedle-dtwn and tweedle-dee.
"He introduced rules tmiversa,lly applicable, 'and cho.se those
more consistent with:' common sense and liberal feeling than
with nrerely technical analogy." Lol1C1 Brougham. thiartJ
improved English jurispt'ltdence without encroaching upon its
pri:p.icples; nor did he impair the certainty of the law 'by estab-
lishing its rules Uipon aii enlarged bas:is.
John Marsh-all, "the modest Virginia gentleml'\;n," is said to
!have sought the principle upon -which the decision must depend,
and, it is further sa:id, tlbia!t his every decision was true to his
of right. In addition to his distinguished arbility as
:a reasoner h'e possessed the fir&t, the highe;;t and the best quali-
fication iihiat a judge can have----fl_)erfect integrity of character.
Reverting to the subject of individuality and originalit,y, I
here observe that Jl.1iarshall's views on constitutional questions
were in lhm'lnony witih t:he views orf a g'l'e,a:t genius-the only
74 22 GEORGIA BAR ASSOCIATION.
Ame1ican :vhorrn Daniel Webster rega1'ded hisr (Webster's) in-
tellectual man whom Talleyrand pronounced one
of the wonders of the world<---.Alexander Hamilton. Marshall
was made Ohief Justice in 1801-I-Iamilton died in 1804.
Hlamilton died one hundred years ago, .but the Hamiltoniaru
idea of government still lives and threatens, if it does not actu-
wlly prevail, in the govermnentlal policy of i:Jhe Union.
Mansfield, Ma.r&h<all and Lumpkin had their critics-critics-
neither tolerant nor a,ppreciative.
In. respc>TIJding for the court during the Lumpkin m:emorial
exercises ( 3 6rt:h volume Georgia Reports), Justice Iverson L.
Harris said in part: "Ignorance OOlllll10nly sneers at what is be-
yond its reach or comprehe:n.sion, and complacently concludes'
that noilhing is VMU'aible in knowledge ooyond its own limited'
acquisition-nothing pertinent to a subject which is not in-
cluded within the horizon of its own narrmV' view. To its
measure and standa.rd it seeks ever to s'll'bject men of a different
class-men whose sphere is the lofty empyrian where eaglesr;
only soar."
To paraphrase a saying of J'lfacaulay-the wing'S of most
critics are like the wings of th!e ostricW--tbiey assist them in
running, but they do not ena:ble them to soar. Disraeli once-
remarked that it is easier to be critical than to be correct.
*
.;(
* * * *
It has been said tlYat the law is like an olcl fiddle on which
any tune can be played. T-he aml im'i:bator who
made this comparison .was but imperfectly acquainted with the
subject, else he would have said more. There are an infinite
variety or :fiddlers, but only 1Jhose who are masters can RJwaky-
the truest notes and produce the most perfect harmony. 'Dhe
master knows the com}}a'SS and the pitch of tihe instrument, and
it is hil') endeavor to make it ring true-for as there is truth in
music there is truth irr law.
If none hut the re1ail masters ever sounded the instrument, re-
spect for the law would be as broad as the land.
SOME KALEIDOSCOPIC GENERALITIES, 75
How great is the power of genius. Genius stl:ikes us like the
lightning without tl1e eye having to look for it. It ilhunines
everything witlh its own ibroad, clear flash. It is daring-thinks
for Itself-pursues its ends out of the beaten tl'a!Ck-and it sees
clearly and pel'fm'lns easily, that wih:iell to other men is difficult
and olbscmre.
Since the days af the first Justice Lumpkin (three judges of
thlllt illustrious name and family have graced o'ur higheSt
court), 1Jhere has been judicial progress in Georgia. Procedure
has been simplified and some unnecessary distinctions elimi
nated. In 1887, the next year after Judge B'leckley's address,
to whieh I }]ave referred, tlhe Uniform Procedure Act abolishef).
tJhe formal biU in equity. Tire Pleading Act of 1893, and
amendatory Acts, have followed. Your Committee on J
Administration and Remedial Procedure calls attention to the
fact tll'at ''the system inaugmated by the J 111diciary Act of 1799
prevails in the ma.i11 to"day."
"Simplicity is favorable to the law." This maxim means that
the wisest and best system of jurisprudence is tJhat which is
freest from intricacy and is most 1'8adily understood.
Fettered and COI}trolled ib:y too many rules, forms and prece
dents, rea:son latitude and courts are auto
matons. 'Dheir work is an evedrusting tsearcll for prooedents,'
and legal aibility meai:rs familiarity with books. The self-reti-
anqe of Pratrick Henry is turned into folly. He said on one
occasion that men are the only volumes really worthy of peru
sal. He, however, had probarbly never heard of the three Johns,
to whom I have referred.
Equity courts were originally intended to be bound by no
prescrilbed limits and rules.
Tlhe establisihment of comts of equity was a recogniti'on <Yf
the truth, that scientific methods are sometimes impediments to
true investigation and are barriers to the administration of
justice. It was an appeal from legal science and strict law to
the sense and soul of an unfettered 'court.
! I
713
22 GEORGIA ASSO<:)IATION,
. natural justice--1ihe justice which wisdom discerns
. the divine. attribute in man approves.
, .,For eqruit.y, to "sha]_)e itself into a refined science whieh no
human faculty can master without long and intense a'pplica-
.ti(ln," is to virtua.lly destroy its' equitable intent and its juridical
usefulness ..
Eminent law-writers tell us tihat, it is far less difficult to de-
scribe. what the legal edifice sihould be, than to select 1ihe mate-
rials of which it should be com]_)osed, and to so place them in
iJhe.hui1ding as to render the &tructure elegant und su:ita;ble
1lQ its purpose. To go from generalities' to particulars is not
within the scope of i!his address. Y QTLU committees from time
tQ time point out needed reforms and im}H'Ovements .
. .. When wisdom Sllrall have removed all legal mystery and law
.shall.be beautiful in the road to truth will be suf-
ficiently rugged.
In each contested case tllat comes before a court the integ-
rity, iqtelligence, knowledge and mmiJ,OlJ'. of. parties, witnesses
and counsel are. involved.
11here is .a factor in tJhe trial of cases that is sometiwm beyond
the reach Df 1Jhe law, the -yvisdom of the court and the under-
sttlanding of the jury. and juries can not look into the
hearts and minds of me,n and know the motive--the private
purP'oses----{ih:at will 1mryi'st arucl' color facts until they seem to
mean what tihey do not .mean, and to be what they really are not.
Tlhe law can rrot always take into account the mistakes of hun1an
judgment, to say nothing of the falsifier >Viho wishes
to swear away the rights of another. J u.dges and juries have
not 1Jhe power of Almighty God.
I have said that the lawyer needs not sentiment, but fact
And yet t!here is sentiment that is 1beautiful in some of the legal
maxims. ,
"Dormus sua cuique est hdissimum 1e{'ugium." "Every
man's house is his castle."
dOME KALEJ;DOSCOPIC GENERALITIES, 77
. There is no finer preserved. from 'any of th.e many
speeches of the great Earl of ClhatJram than his allusion to this
rn,axim of the bw: "The poorest man may in his cottage
hid defiance to all the forces of the 'crown. It may be frail-its
row may shake-the wind blow through it-the storm may
enter-the rain may enter-:-<but the King of England can not
enter!-all his force.dares not cross the thresih'olcl of the mined

The law likes manliness and has regard for "Vain
are t.hose fears which affect not a valiant man."
The law exalts ju;stice and prefers it. before all things else.
"Let justice be done though the iheavens should fall."
Harken unto this : "The commonwealth perishes if respect for
magistl'f1teS be taken 'aTway."
To these -maxims I will add a maxim which I take from an
.address once delivered hefore this Association: "Laws must vary
from time' to time, but respect for the law siJiqulcl know, no,

In .t'ha,t same address I noted this: "There seems to ibe a cone
viction in the public mind that there has grown up a power
greater t.han the law. That the law is no longer supreme, and
that her chosen m:inisters are ibut the servants of this new
master."
If snKlh exists in th:e ptllblic mind there cJan not long
be clue respect for law. VVe as a body .standing as best we can as
supporters of the dig11ity and the majesty and the supcremacy of
the law ho1)e that no such conviction really exists, and we pro-
fcmndly trust that if such conviction does exisb that there is no
just ground for it.
It .has been said that the complexity of. our life, and tb.e mul-
tiplioatiou of great interests have caused the function of law-
making to he 'beset witn difficulties 'and temptations. That there
are difficulties all men well know, but that there can be
any temptations all good men will deplore. Laws are not likely
' !
78
22 GEORGIA BAR ASSOCIATION.
to be wiser and better than the average wisdom and al:mracter
of the men who make them.
It greatly concerns the public weal that the character of
courts shouM struwd high. The iSiph,it of pa.ttiotism and regard:
for the public weal should at all times move the pulblic pre<!S t()o
uphold the !honor of courts and the majesty of law. There is no
greater instrumentality in creating a puiblic sentiment.
tiTan the public press, and '()ne of its highest functions is to en-
hance respect for this can never be clone by general
and indiscriminate denunciation of law-makers ancllaw officers.
Not so long a:go one of GeOTgia's greatest daily newspapers-
( in withholding its name I may appear to commit the offense I
condemn) in the course af an editorial said:
"The law-making bodies of 1Jhe State have been partially
under railroad domination at times; and at times the interpret-
ers of the law have given evidence that they h'ad: felt its influ-
ence. The legislative, exooutive and judicial divisions of the
State government have been responsive when the railroad:
pressed 1Jhe button.''
These charges are grave--these charges are serious. If they-
nave meaning at all, they mean that 1Jhe law-making body
and the judiciary of Georgia are guilty of crime heinous in
themselves, and odious to the law. They mean that law-makers
are bribed and that justice is bought ftnd 'sold in Georgia. They
mJam. "treasons, stmtagems 'al1'cl sp<oils" and "affections dark as
Erebus."
"The courts have been responsive when the railroad pressed'
the button."
How pressed the button? How responsive? Have the courts:
turned or swayed from the true law for any conceiva!ble personal:
reward or benefit? If yea, who, when, and how?
To mq)ose the individual who is known ti:Ji have betrayed a-
public tl'lL'l't is certainly the privilege and undoubtedly the duty
of the pu:blic press. But these charges are general They name
no time, no place, no circmnstance, no offender, and yet they
SO]I[E KALEIDOSCOPIC GENERALITIES. 79'
declare, in effect, that Georgia's executive officers and iher legis-
( lators are corrupt and her judges venal
We are invested with no censorial nor visitorial power or au-
thority, but the judg-es of our courts are honorary memlbers of
this body and Wat -fact migili.t afford no just ground for gentle
remonstrance against such sw!leping and: defamatory allega-
tions.
However, om affiliations with these officers of the law are
minor oonsiderations. The real and urgent cause for remon-
strance is tnat resrect for law <3an not obtain unless there is
general confidence in tlhe integrity of the judiciary. Law in
operation is judicial construction and justice can not prevail un-
less justice is administered.
Charges of official corruption are easily made, though false.
It is wrong to make them unleSSJ known to he true, and when
m!ade they should always he specific. It is sometimes intolerant;
and unjust to imtpugn the motivoo and censure the acts of those-
wlhio do not tlhli.nk as 'We think, and do not do as we
A fair and patriotic journal should never make general
charges of official villainy. It is ibetter to name b()th the offense
and the offender. A pro111in('mt journal that beSm.ircb:es.thwrep-
utation of judge on the bendh does more wrong and harm
to the State than any corpo.i'ate power or political ring is able-
to do in the free State of Georgia.
Moreover, it is unjust to the virtuous to refuse to name the
vicious when such momentous accusations brought. By "tl:e
liberty of the press" is meant the right to print and pUiblish the
truth from good motives, and for j'ustifia:ble ends.
"The commonwealth perishes if respoot for magistrates be
taken away."
Tt.is Association knows neither parties, factions, combina-
tions, caJbals, juntos nor rings--:-1but it ca:n and should consider
wnytihing 1anld that affects tJhe huw and i!Js supremaey.
We live under a government of law anc1 not under a go;v-
ernment of men, and when the chosen ministers of fhe law are
80 22 GEORGIA BAR :ASHO_QIArroN.:
impeached it should be done in the lawful-;way,: T'lie people
name the officers of the law and those '''ho hold elective offices
hold them lby the consent of the governecl.
Courts can not elect what laws they will enforce, nor
sons whiat }a,ws .they wiLl obey. Pel'iJfOns, ruatural an:d la:rtti:ficial,
are equally hound to dbey tihe law, and neither should be perc
mitted to nullify the law to promote any particular end.
vi duals and corporations shoulc1 scrupulously dhserve their legal
limitations. E'ach should t:he other's rights, and: both
should bow to the mrt!hority of the Jaw.
In a lood 11TI}tere great libm,ty is enjoyed-w!here newS])apers
go into nearly all the home:&---where education and general in-
formation are not confined to any class-wJhere rank and file are
capable of criticising intelligently and of coiTectly-
""here pomp and ceremony of State and dignity and majesty
lelllt by staff and gowltl can occasion no: ruwe and c'Olllmarrd no re-o
gard-respect for law can best ibe maintained 1Jhiough the just-
ness of the laws, the rectitude of the courts and rthe wisdom with
whic:ili. the la,ws are administered. -
.. The legal profession has contributed largely to the greatness
and glory of our country. Philosopb,.ers, historians, patriots,
warriors, statesmen, have eyolved from the ranks of the lawyers.
A profession 1Jhat ha:s done so much and has !been so great should
strive to maintain the prestige won: By reason of iihe peculiar
relation which they bear to the memlbers of their connnuni-
ties, lwwyers can hJa,ye much influei!'ce-DJot so easily :acqll'ired or
exercised by other men-in p1omoting respect for law; and
tfhere are none wlho need more than lawyers to know that there
!lll'e heroes of probity, of honor, of loyalty in 1Jhe relations of
ordinar:r life, as well as heroes of com,age and patriotism in the
councils of peoples and at the head o armies.
The age of chivalry as it liYes in poetry, an era o pa)!!;eantry
and romance, has passed, hut the age of true chiYalry-while the
SOME KALEIDOSQOPIC GENERALITIES.
81
strong protect the weak-while the loyal stand for truth-so
long as tilie brave give Jqr 1:ight----:--.will never, never pass.
Ftom men, true men, gm:11Cleur sp1ings,
Tllrat malres her loved rut home, revered aJbrorud;
P2'i-:Uces and.:10i,ds but of .
An hionesrt man's tihe n.oiblest .Wk>rk of God.
: .. .
: I