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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.”