electors, B. Graves, H. V. Johnson, R. M. Charlton, Charles Murphey, Wm. F. Sanford, George W. Towns, Wm. B. Wofford and Eli H. Baxter.

On March 1, 1845, three days before Mr. Polk's inauguration, Texas was admitted by a resolution of Congress. Troops were at once dispatched to the Rio Grande to protect the exposed frontier; and there followed a bloody sequel since known as the Mexican war.

Meanwhile, Governor Crawford, in the fall of 1845, was re-elected Georgia's chief executive, defeating the democratic candidate, Matthew H. McAllister, of Savannah. Mr. McAllister was one of the recognized leaders of the Georgia bar, but keenly feeling the disappointment of his defeat, he soon afterwards left Georgia for the Pacific coast, where he eventually became a judge of the Federal Court in the State of California.

Forty-seven years had elapsed since the adoption of Georgia's State Constitution of 1798, but the state still lacked a court of last resort for the correction of errors in its administration of justice. The Superior Court judges had met at stated times for the purpose of discussing controverted law points, especially those of a constitutional nature; but this method of review was ill-adapted to the state's growth in population and to its rapidly increasing number of judicatories. Litigation was constantly on the increase; issues calling for the most careful consideration were constantly multiplying; variations between judges existed, despite all efforts to prevent them, sometimes on questions of the most vital importance; and to insure respect for law it was essential that judicial decisions should not be at variance. Perhaps one reason why Georgia had moved slowly in creating a Supreme Court was due to the hostility which this name inspires in the popular mind, as the result of unpleasant dealings with the Supreme Court of the United States, beginning with the celebrated case of Chisholm versus Georgia.

But the need of a Supreme Court had become imperative. Governor Charles J. McDonald, in 1841, strongly recommended its creation, calling attention to the fact that the constitution had been amended for this purpose but that nothing had been done to put the amendment into effect. Said he: "The attention of the General Assembly has been frequently called to the amended Constitution, authorizing the establishment of a Supreme Court for the correction of errors. I again recommend it to your consideration. When it is considered that the principal object of government is the attainment of justice, it is a matter of surprise that we should rest quietly under the imperfection of our system of jurisprudence, in which there is neither security nor certainty. The decisions of the circuit judge are final and irreversible except at his will. His power, in cases involving the life, property and liberty of the citizen, is absolute and appalling; and but that we have been so long accustomed to its exercise by a single individual, it would not be tolerated for a day. It has been said, by those opposed to this reform in our judiciary, that if one judge errs, three may err. This is true; but it is also true that three are not so likely to err as one, especially when those three are surrounded by circumstances better adapted to full, calm, and thorough investigation. The great utility of such a tribunal strongly

*

H-J, 1841, p. 18.

*

recommends its adoption. It will produce uniformity of judicial determinations; by the settlement of legal principles, it will diminish litigation; and from the published reports of its decisions, an opportunity will be afforded every man to understand the authoritative interpretation of the laws."

Further back still, John Forsyth in 1828 portrayed in the most emphatic language, some of the inherent defects of the system. Said he:* "Under the present arrangement of eight Superior Court Judges, each confined to the circuit for which he was elected, supreme in his authority, not bound by the decisions of his predecesors or contemporaries and not always by his own, there can be neither uniformity nor certainty in the laws. The confusion producing contradictory decisions every day increases; property is held and recovered in one part of the state and lost in another under the same circumstances; rights are asserted and maintained in one circuit and denied in another, in analogous cases." But finally, on December 10, 1845, an act was approved putting the constitutional amendment into effect and creating the Supreme Court of Georgia.f Its membership was to consist of three judges one elected for six, one for four, and one for two years, all subsequent terms to be six years each. The Legislature of 1845 elected to preside over this tribunal: Joseph . Henry Lumpkin, of Athens; Eugenius A. Nisbet, of Macon; and Hiram Warner, of Greenville. Nor, in the sphere of things judicial, has Georgia ever been served by three abler or purer public servants. So distinctly marked was the individuality of each that not one of the three could be put above the rest, while at the same time there were separate and peculiar aspects in which each was superior to the others.

Judge Lumpkin was the orator of the bench. In the magical modulations of his voice, the magnetic charm of his person and the vivid powers of his imagination, Judge Lumpkin has ever been surpassed in Georgia. At the present time there is little scope for the exercise of such gifts upon the bench, but during the migratory days of the court when it moved from circuit to circuit and people crowded the court-room to hear the decisions orally rendered there was abundant opportunity for judicial eloquence. Judge Lumpkin was on the bench longer than any of his associates and was for this reason the chief factor in developing the Supreme Court of Georgia.

Next to Judge Lumpkin in tenure of service upon the bench was Judge Warner. He resigned in 1853, after having served continuously for eight years; but on the death of Judge Lumpkin in 1867 he returned to the bench as chief justice. Two years later he was reduced to associate ranks by Governor Bulloch under the reconstruction regime; but in 1872 he again became chief justice, retaining his commission until his voluntary retirement in 1880. He was characterized in his decisions less by rhetorical and imaginative graces than by original force and vigor of intellect. He was tenacious of his convictions and absolutely fearless in his rulings. His knowledge of the law was not confined to precedents, but was securely grounded upon fundamental principles. He was perhaps too reserved in manner to enthuse the masses; but he pos

sessed the unbounded respect of all classes of people in Georgia, who esteemed him as the very embodiment of Roman justice itself.

Judge Nisbet remained on the supreme bench only eight years, retiring soon after Judge Warner in 1853, and never resumed the ermine. But during this comparatively brief period he rendered important decisions which made his name familiar throughout the world-wide literature of the profession. Unless exception is made of Judge Bleckley, who resigned the chief justiceship late in the '90s, Judge Nisbet is the most. frequently quoted of all the oracles of the Supreme Court of Georgia; and with Judge Bleckley he has been accorded admission into that professional Valhalla, entitled "Great Decisions by Great Judges."

But Judge Nisbet has been quoted at times by eminent judicial authorities in other states without receiving due credit for services rendered. To be specific, it will be found that Judge Fowler, in the fortyfirst volume of New Hampshire Reports, has reproduced almost verbatim an important decision of Judge Nisbet found in the eleventh volume of Georgia Reports, giving him only foot-note credit as an authority cited. There is a difference as old as the Ten Commandments between citing authority and paraphrasing language, and Judge Fowler has winked at the Decalogue to the extent of falling into the latter grievous error. The deadly parallel columns would probably never have been drawn had not the case become celebrated and the credit for having adjudicated the principle been inadvertently assigned to Judge Fowler.

Judge Nisbet's strength lay not only in his thorough legal scholarship but in his discriminating powers of analysis and especially in his crystal transparency of statement. Without wasting time in elaboration he was spontaneously familiar with all the classics and fluently expressed himself in terms of the most liberal culture.

Judge Lumpkin cared nothing for political honors, and allowed no offers, however tempting, to shake his resolute determination to remain upon the bench. It is rather singular that gifts which in the legislative halls or on the hustings would have lifted him at once into the leadership or which before the jury would have earned him one of the largest professional incomes in the state, should nevertheless have been devoted to the laborious routine of the bench. But it filled the measure of Judge Lumpkin's ambition to wear the judicial ermine of the Supreme Court, and since it gave him an opportunity to mold the judiciary system of the state he could not have linked his name with a service better calculated to endear his memory to the people of Georgia.

But Judge Nisbet and Judge Warner were both fond of political life and both occupied seats in the halls of Congress before the war. They were also both active upon the stage of political events in Georgia immediately prior to the outbreak of the struggle, but they approached the great issue of secession from diametrically opposite standpoints. Judge Nisbet not only advocated secession, but was himself the author of the ordinance which swept Georgia from the Union in 1861. Judge Warner not only opposed secession, but even after the fight was over and the committee had been appointed to draft the formal syllables of dissolution, he still refused to join the majority ranks. He believed in the constitutional right of the state to secede, but he doubted the expediency of the proposed step, believing that the problems could all be adjusted

He was

within the Union and that the act of separation meant war. opposed to disruption. At the Charleston convention he had refused to join the southern revolt led by Wm. L. Yancey, believing that the only hope of success lay in the consolidation of forces under the banner of the national democracy. Judge Nisbet felt that since the fundamental law of the land had been repudiated by the anti-slavery aggressors the cause of constitutional liberty was imperiled and the time had come for the state to resume her sovereign rights.

Twenty years before, Judge Nisbet and Judge Warner had differed even more widely, the former having been a whig and the latter a demoAt the present time they were both democrats, separating only upon the great issue of secession. As soon as Georgia had spoken Judge Warner, with patriotic submission, accepted the result and gave to Georgia his undivided allegiance; but he performed this act of patriotic surrender without in the least modifying his conviction that the course which the state had taken was unwise. Without stopping to measure consequences, Judge Nisbet felt that grievances had become so multiplied that Georgia was left no choice in honor and in self-respect except to withdraw from the compact.

Both men could boast of ancestries whose principles had been put to the most rigid test. Judge Warner had come from Puritan New England, where his forefathers, between the Indians on one hand and the icicles on the other, had mastered the difficult lessons of life in the bitterest school of hardships. Judge Nisbet had always lived in Georgia, but he had sprung from sturdy old Scotch Presbyterian Covenanters, one of whom, Capt. John Nisbet, had been executed on the streets of Edinburgh because he refused to surrender the supreme tribunal of his conscience even to the royal edict of his king.

Both brought to bear in serving Georgia, under circumstances of peculiar stress, the same rugged principles which had come down to them from ancestral molds; and tried though they were in the very fires and found to be pure gold, they both missed the gubernatorial chair which they had honorably coveted and which they would have richly adorned. What seem to be the ingratitudes of politics are sometimes difficult to explain; but neither Judge Nisbet nor Judge Warner were politicians in the fiddle-dancing sense of the term. They were rugged old jurists, who understood better how to construe laws and hold principles than to make votes, and, besides, in fearlessly wielding the ax with honest strokes from the shoulder, they gave far more heed to the mark than to the chips.

One of the most striking of what may be called the judicial characteristics of Judge Lumpkin was his pronounced aversion to the mere technicalities of court procedure. Wherever vital principles were involved he refused to play the iconoclast; but no amount of antiquity could make him venerate forms and ceremonies which possessed no essential value; and toward the task of simplifying the routine of the court he bent all the reforming zeal of Martin Luther. "Where lies the justice of the case?" was the question uppermost in the mind of Judge Lumpkin, and he almost savagely tore aside the husks to lay bare the hidden grain of truth.

Vol. II-6