LltvgatvOTi \y\ Georgia 
 
Class r^^ 
 
 Book ^^^ 
 
LITIGATION IN GEORGIA DURING THE 
 RECONSTRUCTION PERIOD. 
 
 THE PRESIDENT S ANNUAL ADDRESS, BY 
 
 Henry R. Goetchius, 
 
 BEFORE THE FOURTEENTH ANNUAL SESSION OF THE GEORGIA 
 BAR ASSOCIATION. 
 
 ''■*'/ 
 
 *' ^-. 
 
 :4. 
 
 FRANKLIN PRTQ. * PUB. Oa ATLANTA. 
 
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fyvrawH 
 
 MAR 1 iy»» 
 
 '^^' 
 
 
 
 ^•^ 
 
LITIGATION IN GEORGIA DURING THE RECON- 
 STRUCTION PERIOD. 
 
 THE president's ANNUAL ADDRESS, BY 
 
 HENRY R. GOETCHIUS, 
 
 Before the Fourteenth Annual Session of the Georgia Bar 
 Association. 
 
 In the eonitemi3lation of naitiire we are often impressed wMi 
 what is known as tlie la.w of dompensationis. This rule applies 
 alike in the physical and the spiritual. He*re are the mountain 
 ranges Avith their colossal piles of rocks irregularly heaved high 
 by some 'convidsive force. Theire are thfe smiling valleys strieitich- 
 ing far laway to touch the fe'et of other mJountain chains. Now 
 is the ebbj there is the flow of the sea. Eveiy good has its ill, 
 every joy its sorrow, every smile its tear. This rule k not con- 
 fined ito the individual person or thing. Th© aggregation of per- 
 sons, the community, the State, likewise oomes under its influ- 
 ence. The sentiment of the aggTegation of individuals, that is 
 of the State, projected outside of itself, is to the State a law; it is 
 histoiy, which, as it is impressed upon time and space, makes the 
 State. 
 
 In the history of 'the Staite we see tlife rule 'of oom'penBation. 
 To the State, as to the individual, there are periods of shadow 
 and of sunshine, periods when lifer people are upon the mounrtain 
 top of exalted feeling, or in the valley of despondency; periods 
 of peace and of war. Our mvn State of Georgia, since its earli- 
 
est time, bias lived its joys and its sorrows, its li'opes 'and fears; 
 has bad its days of glory, its goldeai age of prosperity and gi-eat- 
 ness, its epochs of gloom and depression. 
 
 As one of the original of ithe Colonial States, a histoiy of 
 Georgia is interesting to the general reader. As a oomnion- 
 wealtli which has attained giieaitness in the sisterhood of States, 
 her history to a native Georgian is always 'attractive. 
 
 It seems 'to be the sense of this Association, inform'ally ex- 
 pressed in some one of its past 'conventions, that the annual ad- 
 dress of its presiding officer should at least have a trend towards 
 the historic. My purj)ose is to endeavor to follow this desire, 
 but in doing so I ask the indulgence of the convention. His- 
 torians, libe poets, are bom, not made, and it is not every one 
 who possesses that iniaginaltion, which Lord Macaulay says '©very 
 historian should possess who would place his nan-'ative in an 
 attractive and picturesque form. 
 
 I have chosen for my subject "Litigation in Georgia during 
 tlie Reconstruction Period." 
 
 To many of the older membei's of the Georgia bar nothing 
 can be presented under 'this head that "will be new or unknown. 
 Some now before us, "and others who Avill perhaps read these 
 lines, were living actoi-s in the day of which we would write. 
 They jDassed through the ordeal of fire land sword wliioh imme^ 
 diately preceded reconstruotion, and when "grim-\dsaged war 
 had smoothed his wrinkled front" not to them was it permitted 
 "to caper n'imbly in a lady's chamber to the lascivious pleasing 
 of a lute," 'but "l'0(^^'^erin'g clouds still lingered," and the work of 
 reliabilit'ation and reconstruction fell to their hands. A large 
 majority of the noble judges and great lawyea"s, who sO' faith- 
 fully worked to redeem the State, have gone to their long home, 
 but 'Some still remain 'tthis side of Ithe rivei". To ithese last the 
 recall of the reconstruotion period can prove as some nightmare 
 only, but to the younger members of the bar there are facts of 
 interest that will but illustrate the great work which was wi'oiight 
 by these suiwivoi-s and their departed contemporaries. 
 
In a r©\dew of tb© life of Greorgia, a most emineoit liistcxri'aii, sc 
 late menTber of your body, lias divided her early existence into 
 epochs characterized as the aboriginal epoch, the period of dis- 
 covery and ex|>loration, the period of schemes for colonization, 
 the settlement under Oglethorpe, the life of the Pix)vince under 
 the guidance of Trustees and under the control of a president, 
 the epoch of 'the Royal Governors and the Revolutionaiy War 
 and, lastly, the orection of Georgia into an independent State. 
 Faithfully has the giftdd anan of letters presented the story of 
 Georgia from her earliest period to the epoch of her elevation to 
 the dignity of an independent commonweialth. This was the 
 period of her birth 'and her infancy. The period in which she 
 attained that vigor of griowth amd promises of character which 
 afterwards developed the greatness of the State. Interesting in- 
 deed is the story. Those were days when it was a contest with 
 savages for "exisibence from without and the unruly members 
 within, and there was famine 'and pestilence and disaster of every 
 kind." Emerging from that era and entering upon a life 'of 
 stateOiood, the St'alte, for three-fourths of a century, rounded out 
 a life of greatn'ess. In lees than twelve years after the inaugu- 
 ration of her first Govenior and after two preliminary efforts at 
 the establishment of a Oonstitution which were merely initiato- 
 r}--, 'she adojDted, in 1798, a chart for her guidance 'in the fonn of 
 a Constitution, which remained the sheet-anchor of her greatness 
 till in the times of revolution and in the sSliiadow of por'tentous 
 civil war, her people, frenzied with the excitement of a disrupt- 
 ing general government, adopted a new Oonstitution. 
 
 The causes which had made the colony of Georgia ready to 
 assume the garments of statehood when I^yinasn. H. Hall was in- 
 augurated Governor were similar to those w*hic(h gave to her 
 people a distinctive growth in the first early years of her life 
 as a State. This growth was remarkable in that it followed so 
 closely the 'assumption of the toga of Statehood. In the inter- 
 val between the administration of Governor Troup and the year 
 1860, Georgia made wonderful progress in population, in mate- 
 
rial wealth and in 'otilieo* recognized in'dioia of m'odem civiliza- 
 tion, while in the elements of true g-reatness, the earlier period, 
 the tlhird deCade 'of itlhis century was her palmy day. Out of 
 these combined conditions have groiwn a race of people whose 
 true greatmess forged the pa'thway ito a splendid commonwealth, 
 the pride of her people, the ^admiration of 'her sister States and 
 the empire of her section, buit withal a race who in the dark 
 hours or later years gave evidence of greater elements which go 
 to make men. This brief review of the history of our State 
 illustrates tihe rule of eompensations. From an elevation of 
 ha'ppines's arid greatness in 1861 the State broke away and en- 
 tered upon a period of darkness and disasiter. This was the war 
 period, shoa*t but disastrous; flame and sword took the place of 
 law and order, and anarchy reigned. Then came the end, and 
 with the beginning of 'tlh'e end came tlhe neoeseity of reconsitruic- 
 tion. 
 
 The opening of tlhe year 1865 presented to the people of 
 the State an imequaled 'sipectacle. The conditi'onis were ab- 
 solutely indescribable. ISTo historian, though gifted "with the 
 pen of a Oarlyle, or the imagination of a Milton, can 
 put into words a true picture of existing conditions. Pos- 
 terity will never fully realize these conditions because pen 
 <cannot '^vrite of them, tongue cannot tell of them, nor 
 pencil nor brush itrace them. There was a compldte and utter 
 destruction of her physical resources; the people were wasted and 
 worn, and the larger perceritage of the striongest and m'ost vigor- 
 ous of the male population had given their lives to their coimtry. 
 1'hey had sealed their devotion to principle and had died fighting 
 for "vv*liat they knew and believed to be the right, and still there 
 Avere thousands of disbanded soldiers who had returned to their 
 former homes m'tliouit food, without clothing save the most 
 scanty, and withont occupation. To add to this were hundreds 
 of thousands of ignorant and helpless slaves who had been given 
 freedom without a knowledge of its uses. Under such condi- 
 tions begins the work of reconstruction — the rebuilding of the 
 .State. 
 
It will be necessary in treating of tbe litigation of the ]>eriod 
 to refer briefly .to tlie" subject of ^construction from a political 
 standpoint. There was what might ibe temned nrational recon- 
 struction and social or domestic recousitruction. Thfe status 
 of the Southern States in the Union after the cessation of hostil- 
 ities was a problem which furnished to thfe records of our 
 national legislation som© of the most intensely interesting pages 
 in the history of the government. AVe can only refer to it. It 
 was in December, 1865, that -the leader of the dominant political 
 party of the country began his argiimients in CongTess to unfold 
 his design 'of reconstruction of the eleven States which iit was 
 claimed had lately been iu rebellion. This design did not take 
 tangible shape till the act of March 2, 1867, which was entitled 
 "an act to provide for the more efficient government of the rebel 
 Staites." It was in fact an act, as the sequel showed, for the 
 more thorough military subjugation of these States. What 
 migiht be te^rmed the national reoonstructi'on plan, or political 
 reconstrucition legalized, began technically with the enactment 
 of the above mentioned m'easure in 1867, for the conditions were 
 fixed in this act and the process was in due form inaugurated and 
 conducted under militaiy doanination, the State of Georgia 
 having been classified as a member of w'hkt was known as 'tihe 
 Third Military District, 
 
 State or domestic reconstruction, we will assume, for the pur- 
 poses of this paper, began at the close of hostilities 'and continued 
 till the yeai' 1872. 
 
 The most distiu'dtive feature of the litigation of the early years 
 of the State was probably the settlement of lamd titles. Then 
 folla\ved an era of general prosi>erity out of which grew all kinds 
 of litigation, hult probably the most marked feature of that era 
 was the subject of slave property. This is not surprising when 
 it is remembered thiat the value of this species of property w!as 
 estimated in 1861 at two hundred and seventy-two million dol- 
 lars. This of course was swept away by the cliances of war and 
 "with it there was almost a total destruction of all kinds of jjrop- 
 
ertj, so that when .'the period began of which we -^vrite there was 
 little left 'to the people save their lands and a few head of stock. 
 The first step of tilie doinesltic rocon's'truotion was taken by the 
 genoi-ial government in the appointment of a provisional gov- 
 ernor. He had been ai^bitrarily named on Jnne 17, 1865, by 
 the President of the United States, and he began the work by 
 issuing a proclamation on July 13, 1865, for a convention of the 
 people, and this was to assemble on the fourth Wednesiday in 
 October, 1865. It was announced thiat the oath of amnesty, 
 which had been prescribed by the President, had to be taken to 
 qualify citizens to vote. All redress for wrong was remitted to 
 the military authorities, and slavery was declared extinc't. The 
 following sentence occurred in this proclamation: 
 
 "The idea, if any such is entertained, that private property 
 will be distributed or parceled out, is not only delusive but dan- 
 gerous and mischievous, and if any attempt should be made by 
 any j>erson or persons to effect such an object by unla^vful means, 
 it will only secure to him or them speedy punishment." This 
 will illustrate the idea pervading the pulblic mind as to the tenure 
 by which property was held and rights secured. 
 
 It is an interesting and curious study of the times to note how 
 out of this chaotic state of affairs the wheels 'of justice, whicih had 
 almost been completely checked by the rude shock of war, began 
 slowly to turn and the madhinery lof the courts began to be put 
 in motion. 
 
 Tliei-e were but two cases reported in the Supreme Oouii; dur- 
 ing the :N''ovember term, 1865. One involved a dispute about 
 the liaibility of certain cotton factors for loss in not following 
 instructions as to eottons intrusted (to their care (appealed from 
 the superior court of Richmond county), and the other was an 
 appeal upon a cham'bers case and related to the recovery of cer- 
 tain cotiton on a promissory note. 
 
 Tlie meeting of the Convention called by the Provisional 
 Governor and the adoption of the Constitution, the assembling 
 of the legislature in December, 1865, elected as pro\aded by thje 
 
Convention, and the inauguration of the Grovemor elect, Hon, 
 Chas. J. Jenkins, on January 16, 1866, all gave promise <of peace 
 and a restwed government. 
 
 The Governor, upon entering upon the discharge of his duties, 
 assumed tliat reoonsbruction was an 'aooomplisliied fact. He then 
 thought that with t)h© 'oessaltion of hostilities and th-e acceptance 
 of 'tHie terms of tllie sun'ender las didtlaited 'by Gremejral Shei^an, 
 and because of the fm'ther recognition of the requirements of the 
 Presi'denit as to slavery land war deibts, the State of Greorgia would 
 be allowed to quietly take her place as one of the States of the 
 Union. This gTieat mian, as he prepared himself to lead in the 
 anticipated advancem'ent of the interests of the State, used elo- 
 quent word's of hope and 'encouragement in his splendid inau- 
 gural address: "With i>eace restored, the machinery of govern- 
 ment once more put in oj^er'ation, public and private enterprises 
 aroused from theu' long slumber, educational institutions re- 
 opened, our sacred temples and lour altars with their holy min- 
 istrations frequented as of yore, and the blessings of Almighty 
 God overspreading and revivifying all earnest effort, Georgia 
 will illustrate the teachings of adversity by speedily achieving 
 an enlarged f>ros]>erity." "With such cheering words did his 
 heairt give hope, but in a few m'onths after the utterance of these 
 words this noble representative of the people of his beloved 
 State was standing before the supreme judicial tribunal of the 
 land pleatling for the protection of Ithe liberties and iD(ropei"ty of 
 this people. He ia^Dpeared as counsel for Georgia in what was 
 by far the most important of all reconstruction litigation. I 
 refer to the case of Georgia v. Stanton, Grant & Pope. It was 
 a bill filed in the Supreme Ooui't of the United Staltes in the 
 name of the State of Ge^orgia against the Secretary of War, the 
 General of the Army of the United States and the General in 
 Command of the Third Military District of the South, wherein 
 the defendants were sought to be enjoined from enforcement of 
 the reconstruction acts of Congress. This proceeding involved 
 the existence of the state goveamment of a million of people and 
 
the gecuritj of hundreds of millions of dollars of property. The 
 injunction was not allowed, and the bill was dismissed for want 
 of jurisdiction. The case was a-blj reviewed by your last presi- 
 dent in his admirable a'ddress. I therefore forbear further refer- 
 ence (thereto. 
 
 Subsequent to the 'decision in this case, as is well kno^^m. Gov- 
 ernor Jenkins was removed by military order, and the period of 
 enforced congressionail reconstruction begfan. Before this re- 
 moval, however, which did not take place till the early part of 
 the year 1868, there wias an honest effort upon the part of the 
 people to accept the situation and to enact such legislation as 
 would restore the aifairs of the State to a normal condition. 
 
 The General Assembly of 1865 resolved ''that his Excellency, 
 the Governor, be requested to communicate to his Excellency, 
 the President of the United States, our fixed and unalterable 
 purpose to observe, obey 'and defend the Constitution and laws 
 of the United States and the government thereof, and to main- 
 tain by all :the power of the State the supremacy of said laws, and 
 to ask of him, if not a withdrawal of the troops of the United 
 States from the States, a surrender of all private property belong- 
 ing to individuals and a restriction of the military to the occupa- 
 tion of the barracks, forts and arsenals, or such other quarters 
 as the Governor mvay furnish upon contract and compensation, 
 and further to restrict the military to the management and con- 
 trol of the troops and the enforcements (if necessaa-y) of the laws 
 of the United States, as expounded by civil tribunals, appointed 
 and established in conformity to law; and to this end we ear- 
 nestly invoke the restoration of the privilege of the ^viit of 
 "habeas corpus." 
 
 Out of the peculiar conditions necessitated 'by the fortunes of 
 war grew enactTaente of the Constitutional Convention and the 
 legislature of 1865 and 1866, and of the subsequent Convention 
 af 1868 and intervening legislatures w^liicli have given to us 
 what might be technically tenned recoustriiction litigation. 
 ximOng the very first of these enactments was what was kno^vn 
 
9 
 
 as tlie relief ordinance of 1865, wliicli imdortook to adjust 
 equities of contracts. It was ordained that "All contracts made' 
 between June 1, 1861, and June 1, 1865, whether expressed in 
 writing', or implied or existing in parol and not yet executed, shall 
 receive an equitable construction, and either party in any suit 
 for the enforcement of any such contract may, upon the trial, 
 give in evidence the consideration of and the value thereof at 
 any time, and the intention of the parties as to 'the particular cur- 
 rency in which payment was to be made and the value of such 
 currency at any time, and the verdict and judgment rendei'cd 
 shall be on pnnciples of equity; provided, that contracts executed 
 within the time specified, and which were simply in renetwal of 
 'Original contracts made before the said 1st day of June, shall 
 stand upon the fo'Oting of contracts executed before hostilities, 
 commenced." 
 
 The constitutionality of this ordinance was at once attacked 
 and it became necessary for the Supreme Court in Slaughter 
 et at. V. Culpepper et al., on a simple foreclosure of a mortgage 
 dated December 5, 1861, made to secure two notes maturing in 
 1863 and 1864, to decide whether or not such an ordinance did 
 not impair the obligation of contracts. In adopting this ordi- 
 nance the convention regarded it as absolutely necessary in 
 order to enable the people to 'carry out their contracts made dur- 
 ing the war, and especially to authorize settlemen'ts of such con- 
 tracts with persons acting in a fiduciary capacity. The court 
 held that the ordinance was no more than a change of rule regu- 
 lating the admission of testimony in courts of law, removing 
 the obstacles created by technical rales to a full inquiry into and 
 in^^es'tigation of executory contracts made within the period men- 
 tioned. The evidence was to be let in, in order to enable the 
 jury from all the evidence to ascertain fairly and honestly what 
 Avas or must have been 'the contract between the parties. The 
 court found it necessary to define the effect of this ordinance on 
 judgments and on wills, holding that it applied only to contracts 
 and not to judgments or wills. The t.rue meaning of the ordi- 
 
10 
 
 iiance H'ad to be constnied. In a suit on a contract in White v. 
 Lee, "Wliere the obligation was payable in cotton in 1864, the 
 court held it error to have charged that the jury was to find 
 according to the specie value of the cotton at any time. The 
 court u'sied 'tlhis lajnguiage: "Very few eoaiti'acitB made during 
 the war can be reduced to any certain iiile. Men so necessaiilV 
 acted uhder a delusion that dach case muslt atand pretty much on 
 its own circumstances." It was very soon discovered after this 
 construction of the ordinance of 1865 'and the enlarging act of 
 1866 that the relief intended was not afforded, and the legisla- 
 ture of 1868 enacted a law more comprehensive in its effects. 
 
 This law was sent upon its mission of provoking endless litiga- 
 tion without having the approval of the Governor who per- 
 mitted it to become a law by expiration of five days' limit from 
 its receipit. It opened wide the doors for evidence upon all con- 
 tracts prior to June, 1865, except where the consideration was 
 for slaves; it pennitted defendants on moition to open unsatisfied 
 judgments and to have the same reduced, and in cases against 
 trusitees it permitted defendaints tlo show the loss or destruction 
 of the trust property or its depreciation. Where levy had been 
 made a mere affida^at of the defendant Would enaible him to 
 suspend sale and take advantage of the acit. It applied to arbi- 
 tration as well as suits at law, and both parties in any case could 
 testify. 
 
 The first and most important case which brought under full 
 re^'iew this act of 1868, was the noted case of Cutts & Johnson 
 et al. V. Hardee, which went up on an a.ppe'al from the judg- 
 ment of the superior coui-t of Sumter county, sustaining a de- 
 murrer to the plea of the defendant, the ground of demui-rer 
 being based upon the unconstitutionality of the act as impairing 
 the obligation of a contract. Under the judgment of a divided 
 court (Brown and McOay coucurring and Warner dissenting), 
 the cause was remanded. Each of the judges delivered an ex- 
 haustive opinion. The Chief Justice (Brown) presented the 
 most elaborate and extensive. He argued ^ait length to prove his 
 
11 
 
 proposition tibait the act went only t'o tlie remedy and not to the 
 obligation. Said he: 
 
 "There is a pkin distinction between the oblig-altion of a con- 
 tract and the remedy for its enforcement, and while the legisla- 
 ture m'ay not impair the obligation of the contract, it has un- 
 doubted right to change, modify or vairy the nature 'and extent 
 of the remedy (provided a substantive remedy is always left to 
 the creditor, so long as fthe state does not deny to her courts 
 jurisidiction of contracts), and to prescribe such rules of pro- 
 cedure and of evidence as may, in its wisdom, seem best suited 
 to ath^ance the administration of justice in the courts." 
 
 He cited case rafter case where the court had passed upon and 
 sustained the validity of the ordinance of 1865 and anailogized 
 this act to that ordinance. He satisfied himself that the analogy 
 was complete. Judge McCay placed his judgTiient mainly upon 
 the ground that the effect of the act was simply an alteration of 
 rules of evidence and a change of procedure, but Judge Wamer 
 in a very strong anki pointed opinion h:eld the act unconstitii- 
 tional. After citing numbers of cases from the decisions of the 
 Supreme Court of the United States, he says: 
 
 /'This act of the legislature, in my judgment, necessarily im- 
 pairs the obligation of the contract, as it existed under the law 
 at the time the contract was made, and it makes no difference 
 whether that result is produced under the name of a remedy, or 
 under the pretext of regulating the admissibility of evidence. 
 Is the contract and the obligation to perform it as valuable now, 
 under the provisions of the act of 1868, as it was under the law 
 applicable to the contract at the time it was made?" 
 
 The closing lines of this remarkable dissent stand out promi- 
 nently as illust.r*ating the intense feeling of those days, existing 
 even beltw^Cen meanhers of the same court. These were his 
 words : 
 
 "The Constitution of the United States is the fundamental 
 and paramount law for the government of the courts and people 
 of this State. It has been justly remarked, by an eminent civil- 
 
12 
 
 ian, tbat 'to attack the OoBstitiition of the State, and to violate 
 its laws, is a cajjital crune against society, and if those gnilty of 
 it are invested with aufchoritj, they add to this crime a perfidious 
 abuse of the power with whidh they are intrusted.' In view of 
 th© obligation imposed upon me to support and m'aintain the in- 
 tegrity of the Constitution of the United States, which declares 
 that 'no State shall pass any law impairing the obligation of con- 
 tracts/ and not entertaining the least doubt that the act of 18G8, 
 both upon principle -and the authority of the decisions of the 
 Supreme Court lof the Umted States, is a palpable ^Tiolation of 
 that Constitution, I am unwilling to embalm myself in my own 
 infamy upon the records of this court, as a debauched judicial 
 oilicer, in holding that act to be constitutional; therefore I dis- 
 senlt from the judgment of the court in this case," 
 
 Almost every imaginable line of defense was set up under this 
 act, but one most availed of and about which decisions were 
 in-s'oked (even of tlu-'ee cases in one), was the defense that the 
 ilefendant had lost by the war. In Graham i\ Clark, Graham 
 recovered judgment in 1867 against CLark for about five thou- 
 sand dollars principal and initerest upon notes made in 1860. 
 Clark sought in 1869 to reduce the judgment under tlie act of 
 1868. The evidence was that when Clark gave the notes he- 
 owned forty-three slaves worth five hundred dollars each and 
 lands which he aftei'W'ards sold for Confederate money, and that 
 he was then worth only certain lands A^alued at about eig-'ht thou- 
 sand dollars. Clark also savore that Graham had nothing to do 
 with the loss. The court below charged the jurj^ that Clark had' 
 a right to open the judgmeait and submit the issues whether it 
 ought to be goaled under the Relief Act, and if they found Clark 
 was not at fault they could scale the debt and render what ver- 
 dict they thought just and equitable. The Supreme Court 
 ])romptly r<eversed this a's error and aidded tJli'at while such a 
 charge might be mercy it would not be equity. It was in this 
 case also that the court hold that it was au improper construction 
 of the act of 1868 to understand it as declaring that the simple 
 
13 
 
 loss of property by tlie war begets sucli an equity in the defend- 
 ant as to allow liis debt to be rediice'd on 't'hait acconnt. Bait tlie 
 conrt continned on other lines to trim and circumscribe the gen- 
 eral effect of this act, Chief Justice Warner, in his indi^ddual ex- 
 pression of the opinion, maintaining that 'the law was unco:nstitu- 
 tionial as to ooiitr'aots malde btefore its passage, but the direct: 
 question was never majde. Rulings upon other and kindred 
 legislation rendered it unnecessaiy. 
 
 The benefit of the act was denied to one holding a judgment 
 rendered after the act was passed. So also when it was sought 
 to apply its provisions upon a re\dved judgment. 
 
 The second section of the a'Ct, in so far as it allowed a new 
 equity and new gi-iounds of defense, was held unconstitutional. 
 In WMte V. Hemdon, it was held that the act was violative of 
 the State Constitution in so far as it allowed opening a judgment 
 to let in defenses whidh were or must have been in issue before 
 or at the rendition of the judgment. Here Judge "Warner again 
 attacks the whole act. In nearly every case before the courts in 
 these historic days, there was a divided court, and especially 
 upon the constitutionality of this class of legislative enactments. 
 As late as the August term, 18Y7, in Dibble v. Pearce, Bleckley, 
 Judge, it is stated: "As a court we rule 'nothing at present on 
 the eonstitutionality of the Relief Aet of 1868." Then refer- 
 ring to Judge Warner's known A-iews, he adds: "Should it become 
 necessary for the other members of the court to deal with the 
 quesition they will do so, but the case now in hand calls for no 
 discussion respecting it." 
 
 Pending the doubts and discussion on the act of 1868, which 
 within two years after its passage had been nearly emasculated, 
 the legislature, yielding to partizan promptings, enateted a still 
 more extensive relief act. 
 
 Tliat body in 1870 passeld an act whiicli purported upon it^o 
 face to be an act to extend the lien of set-off and recoupment as 
 against, debts 'contracted before the 1st of June, 1865, and it de- 
 nied to such debts the aid of ithe counts until the taxes thei'eon. 
 
14 
 
 had been paid. Tliis act, however, was very sweeping in its pro- 
 ^-isions as a general relief law, 'and 'had it been allowed to remain 
 upon tlie statute books wonld have virtually wiped from exist- 
 ence every obligation, ■\Vhether it had been reduced to judginenij 
 or not, which had been founded upon a contract dating before 
 the first day of June, 1865. It was known as the ''Tax Act'^ 
 because it provided that in any suit pending, or afterwards 
 brought, the plaintiff sihoukl file with his declaration, or six 
 montlis thereafter, an affidavit that all legal taxes, dhargeable 
 upon such debts or contract sued on had been paid, and he was 
 further required to prove the same upon the trial, otherwise the 
 suit should be dismissed. From the very outset of litigation 
 under this act the then Chief Justice of the Supreme Coui'l: of 
 (Jeorgia (Warner) is on record as to the unconstitutionality of 
 the act, and he invariably expressed his dissenting opinion ui>on 
 all cases which arose under its provisions. One of the strongest 
 expresBions of this eminent judge appeiars in the casie of Lott v. 
 Dysart, where the j^laintiff at the trial in opeu eourt, proposed 
 to pay all taxes then due on the debt for which suit was pending. 
 The court below refused to allow payment and the ease was dis- 
 missed, but was on appeal reversed. It ^Vas in the concurrenit 
 judgment of dismissal that 'the Chief Justice, in this case, said 
 that while concurring with the majority of the eourt in revei-sing 
 the judgmemt, he bas'ed his opinion upon am entirely different 
 ground. He denied that the dbject of tihis act was to increase 
 the revenue of the State, but was for protecting this particular 
 class of debts refeiTcd to, and stated that if it was a revenue act 
 tlien it was umoonlstitTitioual, l>ecause there was niothing in the 
 title referring to raising revenue. It seems that the majority 
 of the court had charac'terized it as a revenue measure. Said he: 
 'The plain intent of the act Avas to deny to the holders of a par- 
 ticular specified cdass of ddbts all remeidy for the collection 
 thereof in the courts of the State until the taxes thereon had 
 been pai'd, whether the debts were solvent or insolvent; in other 
 Avords, to practically outlaw that particular s]>ecified class of 
 
15 
 
 debts from the courts, and tlie enacting clause of the act pre- 
 scrib(?d the mannei- of doing it. The discovery of our modem 
 judicial i\^eclvers that this act was intended afe a revenue measure 
 i? la brilliant afterthought not ^contemplated by the legislatm^e 
 ^vhich enacted it. Their intention, as everybody knows, and 
 which Ls apparent on the face of the act itself, Avas to kill and 
 destroy this particular class of debts by depriving the holders 
 thereof of all remedy to enforce the collection of them in the 
 courts, under the pretex^t that the taxes due thereon had not been 
 paid. This pretext of raising revenue is about as sound as the 
 pretext of the Pope of Eome for selling indulgences to raise 
 
 revenue." 
 
 He then proceeds in a very concise but able manner to show 
 that it impaired the obligation of contracts, formulating a reason- 
 ing afterwards sustained, as the sequel will show by our highest 
 authority. 
 
 In the case of Walker v. AVhitehead, which had been before 
 the eourt in 1871, the oonstitutionality of the act had been main- 
 tained by a majority of the court, but Judge AVarner at that 
 time dissented in the following strong langiiage: "My opinions 
 in regard to tliis class of legislative enactments, have been re- 
 pealtedly expressed, and this act is quite as obnoxious to the 
 fundamental law of the land, as any of the others; it imposes 
 conditions on the legal rights of the plaintiff, which did not exist 
 at the time the contract was made; is ex post f(Wto in its char- 
 acter, inasmuch as it assumes that a particular class of the citi- 
 zens of the State 'asre guilty of a criminal offense, and outlaws 
 them from the enforcements of their legal rights in the courts; 
 irxvades the legal rights of the plaintiff imder the contract at the 
 time it was made, and impairs the legal obligation thereof, mthin 
 the true intent and meaning of the prohibition contained in the 
 10th section of the 1st article of the Constitution of the United 
 States, and is, therefore, void." 
 
 This case was appealed but did not reach a decision till the 
 s^ning tenn, 1873, in the Supreme Court of the United States. 
 
16 
 
 In tlie interim tlie time of the superior eoiii"'ts throughout the 
 State was largely occupied by denying justice to plaintiffs in 
 this class of cases, in pursuance of the ruling of the Supreme 
 Court of the State, but ^v'heii tlhe decision in Walker v. White- 
 head, holding that the act was unconstitutional and reversing the 
 Supreme Court of Georgia, was handed down, one after another 
 of these cases as they were brought before the courts were dis- 
 missed. At the January tenn, 1873, of the Supreme Court in 
 the case of llitchell v. Elliott, the case was disj)osed of under 
 the ruling of the Supreme Court of the United States, Judges 
 Trippe and Warner concurring, but Judge McCay in his dis- 
 senting opinion maintaining that the Supreme CoiTrt of the 
 United States was T^Tong, and insisting that the case had not 
 been j^roperly presented before that court. This particular case 
 of Mitchell stands unique in the recor^d's of our courts 'as having 
 connected with it in its dismissal, some twenty-five or thirty 
 other oases involving the same point. This illustrates that our 
 courts were comi>elled in those stormy days to "shovel out" 
 justice by the wholesale. 
 
 In close relation to the litigation arising out of the relief laws 
 of the reconstruction times come the many cases gi"'omng out of 
 the construction of contracts made during the war period and 
 the consideration of which was Confederate m'oney. The value 
 of the currency of the people, the purchasing powers of the me- 
 dium of exchange, is so vital a question as that upon its solution 
 depends the very exisltenoe of business and consequent thereon 
 the stability of society. 
 
 The State in addition to its manifold dis/triesBies was confronted 
 with a condition in this matter, wliich threaltened to obliterate 
 every trace of an obligation founded upon Confederate currency 
 which had been entered into between the years 1861 and 1805. 
 The only currency for that period was Confederate currency and 
 the convention of 1865 had without delay attempted to provide 
 for the embarrassments necessiarily growing out of this question. 
 It will be remembered that the relief ordinance provided that 
 
17 
 
 evidence could be submitted upon the consideration and tiie 
 value thereof at the time the contract was made 'and was to be 
 executed, and that the intention, of the parties was to be 
 sought for. 
 
 The student, looking into interesting incidents of the days of 
 which we write, will f]nd reported the eaee of ]\IcLauglilin & 
 Co. V. O'Dowd, which was a suit on a note made May 22, 1862, 
 due forty days after date. The defendant pleaded, among other 
 things, that the note was payable in Confederate currency and 
 that the word "dollars" used in the note did not meian green- 
 backs, which was federal currency. The case w^as sued at the 
 May term, 186G, of the city eonrt of Augusta, and a set-off was 
 also pleaded in which may be seen the prices of commodities in 
 those days on daJtes ranging from 1862 to the close of 1864. 
 One item is for 510 pounds of tallow candles valued at $586.50; 
 another item is for 431 pounds of sugar valued at $3,448, In 
 this case what is known as Barber's Tables are incorporated and, 
 accepted as the standard of values of Confederate notes estimated 
 in gold. These were tables sho\ving prices of Confederate 
 currency from January 1, 1861, to May 1, 1865, and were com- 
 piled by a merchant of Augusta, Ga., admitted in evidence by 
 consent in this case anld subsequently accepted as authority in 
 litigation of this class. On the first named date the premium 
 in gold was five for one, and on the last named date twelve hun- 
 dred for one. In this case the ordinance of 1865 was applied, 
 and the rule was again laid doavn that the jury should not be re- 
 stricted to finding a specie value of Confederate notes. 
 
 In no class of eases was there more frequently required, than 
 in these Confederate ndte cases, the application of the rul^ 
 already referred to as established by the court, that each case 
 grooving out of war time transactions would have to stand pretty 
 much on it^ own circumstances. 
 
 One of the first cases to arise for the application of this prin- 
 ciple was that of Evans v. Walker, where it was held that the 
 court below had no right to tell the jury not to consider the evi- 
 dence as to value of Confederate monev at the time the contract 
 
18 
 
 was made and restrict tlicm to tlie value at the time tlie debt 
 became due. Tbis was a suit on a note dated May 4, 1863, 
 and due one year tbe'reafter, and at the maturity of the note 
 Confederate treasury notes were wor'th $20.00 for one in gold. 
 It was held in this case that the jury could consider the value 
 of Confederate currency at any time pending the contract and 
 should render a verdict on principles 'of equity. Another case 
 was Cherry v. Walker, The question came up upon a suit 
 on a note the consideration of wliich was Confederate money 
 loaned, and at that date the value was one dollar in gold for five 
 in treasury notes and at its maturity the value was one for 
 twenty, a'ud the value in greenbacks was 'a premium of 25 per 
 cent, in gold on one dollar in greenbacks. 
 
 It was admitted that the consideration of the note was Con- 
 federate currency. Ag'ain 'the coui"'t below was reversed because 
 it bad charged the jury that section of the Code authorizing the 
 holder of a note payable in specifics to recover the value of such 
 articles at the time the note is due and ]3ayable. It was held that 
 in the case at bar the court should not h'ave referred to that 
 section at all, and refennng to Evans v. Walker, above cited, it 
 again says that each case of this character should be decided 
 ujjon its own merits and the peculiar state of facts nndei- such 
 of the provisions of the ordinance that might apply, and that it 
 especially declined to attempt to lay down general rules to con- 
 ti'ol tlie decision of futui*e cases. 
 
 The question was presented in every imaginable phase. One 
 of the earliest cases was that of Abbott v. Dennett, where 
 under a bill it was sought to set aside a sale of real estate in tihe 
 city of Atltanlta made on May 1, 1865, which was after the sur- 
 render of tihe Confederate airmies, but the event was not known 
 in Atlanta nor by the parties trading. The purchase price was 
 paid in Confederate notes which at that time were practically 
 valueless, being, as we have seen estimated, at twelve hundred 
 for one. It was held that the contract could not be rescinded. 
 
 The sheriffs of the several counties were sadly at a loss in 
 
19 
 
 these disturbed times as to how to legally discharge their official 
 duties. It often happened that a sheriff had collected funds 
 j)ending hostilities and knew of no one authorized to receive the 
 same. Of course after the sni-render he must needs be ruled. 
 Generally the rule was discharged as the sheriff had collected 
 the only kind of money in circulation. An amusing case went 
 up from Baker county. The sheriff collected Confederate 
 money 'and depo'siteid. it in a safe, w'here, in consequence of the 
 absence ef the owner of the safe, who was ou the coast making 
 salt, he could not get at the money to pay to order of plaintiff 
 in ft. fa. The sheriff' tried repeatedly to get in the safe, and to 
 get at Briggs, the owner, who continued to diligently pursue the 
 salt industry, but withont 'avail, and when the crash came the 
 Confederate notes were still in the safe in constructive possession 
 of the officer of the law. A rule followed and the court below 
 made it absolute, bnt the sheriff" was saved by a reversal on the 
 ground that the judgment against him was based on the value 
 of United St'ates currency, the court saying that it should have 
 been left to a jury to find on the value of Confederate money 
 under the ordinance of the convention. 
 
 Abstaining from reference to the hundreds of cases which 
 arose, bringing this question in every conceivable shape, such as 
 those already referred to as against sheriffs; others requiring a 
 clear definition of the liability of trustees, guardians and execn- 
 tcjrs; the mixing of funds and of efforts against all classes of per- 
 sons holding in a fiduciary capacity, and still others, we will 
 refer specially to a novel case reported as Jones v. Rogers & Son. 
 In August, 1862, Jones took the note of Rogers & Son for 
 money loaned and also loaned another large amount on the 
 indorsement of said firm on certain other notes given in renewal 
 of debts made in 1859. In September, 1863, the debtor ten- 
 dered payment in Confederate money at par, though it was then 
 greatly depreciated. Jones refused to accept payment. The 
 firm thereupon thi-eatened to rejiort complainant to "the vigi- 
 lance committee." This was a body at that time organized and 
 
20 
 
 appointed bj a public meeting of the citizens of Macon, Ga. 
 (on© of the defendants in this suit being a mcinl)or), Avho Avere 
 charged with the duty of looking after and regulating and pun- 
 ifehing offending citizens A\dio refused to take Confederate treas- 
 ury notes in payment of debts due to them ]>efore the war then 
 existing. Complainant still refusing, the defendant rejjorted to 
 the ciommitltiee. In the jyrogress of the trial tflie minutes of the 
 meeting organizing the committee were offered in evidence. A 
 preamble and resolutions, breathing of eloquence and patriotism 
 for country and defiance to her enemies, Avere adopted. For 
 the pui-poses of this reference we reproduce the first paragrapih 
 of the resolutions. It read thus: 
 
 "Resolved, That we will hold aiU persons as enemies of this 
 Confederacy "who shall, by any means, depreciate the Confed- 
 erate currency, or shall refuse to receive it in ]:)ayment of debts, 
 and Avill use our best endeavors to bring all such to condign 
 punishment by legal means, if the laws provide such punish- 
 ment, but if not, to punish with or without law." 
 
 Under the provisions of this drastic war measure the offend- 
 ing creditor was cited to apjDear before this tribunal. This com- 
 mittee was composed of some of the best and most substantial 
 citizens of the community, but in their review of their conduct 
 four years later when the complainant endeavored by bill to re- 
 cover the amount of his notes beeause of "duress" in the enforced 
 settlement" of 18G3, the Supreme Court charactei'ized the body 
 as an "inquisition of fearful proportions and powers." The 
 court held thalt the 'case presente'd fa'ots clearly 'demonstrating 
 duress by tihreats and menaces of punishment, and 'tfliiat complain- 
 ant had been forced to comply Avitli what was an outrage on his 
 rights. The case Avas sent back that the court might grant re- 
 lief, Avhich both it 'and the committee had denied the unfoitunate 
 suitor. 
 
 By far the most A'it'nl question that CA^er arose in connection 
 v:i\]\ lhe enforeement of contracts payable in Confederate treas- 
 iii'v notes, was as to w'hctlior or not such con tracts were A'oid 
 
21 
 
 because the notes on wliicli they were based were issued in aid 
 of rebellion. The point was first made in Georgia, in two cases 
 jointly argued at the December term, 1868, on appeal to the 
 Supreme Court from Richmond superior court. One was the 
 ease of Miller v. Artemus and the other the Oa. R. R. Banking 
 Co. V. Eddleman. The defense in eaoh case was that the con.- 
 tract was illegal, both because it was in aid of the rebellion by 
 encouraging the circulation of Confederate treasury notes, and 
 also because it violated the State Constitution, which declared 
 such contracts void. There was a divided court upon the issues, 
 the majority holding the contracts good as between the parties 
 thereto, because the transaction had nothing to do with the 
 prosecution of the war against the United States, and because 
 the Confederate government existed as a fact and was the actual 
 governing authority to which its citizens owed allegiance. Nor 
 were they held to violate the Constitution of the State, because 
 the issuance of Confederate notes was not forbidden by that 
 instrument and they were not evidences of debt intended to be 
 embraced in the prohibition clause where the parties in using 
 them did not intend to aid and encourage rebellion. Justice 
 Brown dissented and found great comfort in the fact that he 
 was sustained in his opinion by the rulings of Erskine, Judge 
 of the Federal Court for the ISTorthem District of Georgia, who 
 at that time was sustaining similar views as sbown by his deci- 
 sion in the case of Bailey, Trusitee, v. Milner, reported in 35 Ga. 
 330, and Scudder v. Thomas, 35 Gra. 364. These two cases 
 were decided in the early part of 1868. Whatever comfort may 
 have been derived by such dissenting opinion was short-lived 
 and tlie embarrassing situation which existed from the State 
 courts holding one way and the Federal courts the opposite upon 
 the identical question, so often at issue between the citizens of 
 the State, was speedily relieved by the ruling of a higher author- 
 ity as the sequel will shortly show. Of course a question of 
 this magnitude, one which held in its solution the fate of every 
 transaction conducted by all the people of the seceding States 
 
22 
 
 for four jears, necessarily found its way in a very short time to 
 tlie Supreme Court of tlie United States. In fact, at the very 
 date referred to (the spring of 1868), when the Georgia judges, 
 State and Federal, were tossed about upon a sea of doubt, there 
 was a case being argued before that tribunal seeking the solu- 
 tion. It was reargued in October, 1868, and decided in Novem- 
 ber, 1869. This Was the case of Thbringtion, Appt. v. Smith 
 and Hartley. The case arose on a bill in equity for the enforce- 
 ment of a vendor's lien. Land had been purchased and a 
 promissory note for part of the purchase money was executed 
 and delivered to the vendor in JSTovember, 1864, payable one 
 day after date at Montgomery, Ala., w^here all the parties 
 resided. The defense set np as a denial for relief as prayed for 
 ■\vas that at the time of the execution of the contract the authbr- 
 ity of the United States was e^^cluded from that portion of the 
 State, and the only currency in use or circulation consisted of 
 Confederate notes issued by persons exercising the ruling power 
 of the States known as the Confederate Government; that the 
 land purchased was worth no more than $3,000 in lawful money, 
 and that the contract price was $45,000; that this was by agree- 
 ment to have been paid in Confederate notes, and $35,000 was 
 so paid, and that the note in controversy for $10,000 was to be 
 discharged in like manner. The court below sustained the de- 
 fendant. The case on appeal presented the distinct and clear- 
 cut question for the consideration of the court, and for the first 
 time the Supreme Court of the United States was called upon to 
 pass upon the same. The question was, using the language of 
 the court: "Can a contract for the j)ayment of Confederate 
 notes, made during the late rebellion, between the parties resid- 
 ing in the so-called Confederate States, be enforced at all in the 
 courts of the United States ?" (There were two incidenital ques- 
 tions also arising: first, as to a construction of the word "dollars," 
 as expressed in the contract, and second, as to whether the proof 
 showed that the note was to be i>aid only in Confederate notes.) 
 In this decision the court discusses at length the ]H-ecise char- 
 
23 
 
 acter of tlie Confederate government in contemplation of law. 
 They were unanimous in the opinion that the Confederate notes 
 had been issued in furtherance of an unlawful attempt to over- 
 throw the government of the United States by insurrectionary 
 force, and they likewise agTeed upon the principle that no con- 
 tracts made in aid of such an attempt could be enforced through 
 the courts of the country whose government was thus assailed. 
 "Wlien these two propositions met them in the outset of the in- 
 vestigation, how were they to reach a conclusion which led them 
 to a reversal of the court below and to a judgment allowing re- 
 covery? 
 
 It may be of interest to the reader of judicial histoiy in this 
 day to note that this highest authority of the land in this particu- 
 lar case came very close to a direct declaration of the fact that 
 all adherents of the Oonfedei''ate cause of every class w*hatever 
 were guilty of treason against the United States Government. 
 
 In contemplating the character of the Confederate Govern- 
 ment, the court entered into an elaborate discussion of the dis- 
 tinction between governments de facto and de jure, and the 
 former were classified first, into those whose character so closely 
 resembles that of lawful government as that its adherents do 
 not incur the penalty of treason, and second, those which are 
 maintained by paramount force. The Confederate Government 
 was iheld to belong to the latter class of de facto governments, 
 and it was held that one of the characteristics of such a govern- 
 ment was that it must be obeyed in civil matters by private 
 citizens, such obedience not rendering them liable to the alleged 
 lawful government on a charge of treason. The court then cites 
 two examples illustrative of its line of reasoning, both of which 
 referred to acts within territory forcibly seized and in the control 
 of a regularly constituted govemment foreign to that whose 
 territory had been occupied. "These," say the courts, "were 
 cases of temporary possession by a lawful and regular govern- 
 ment at war mth the country of which the territory so possessed 
 
24 
 
 was a part, nor was the Confederate Government, thongh not 
 originally lawful, less actual or less supreme." 
 
 Having tlms satisfied its mind, at least for tlie purposes of tliiis 
 case, that the insurgent government was lawful, it went a step 
 farther and declared that "obedience to its authority in civil and 
 local matters was not only a necessity huit a duty." This step 
 enabled the court to go further and hold that Confederate notes 
 were for the Confederate Government lawful currency, and the 
 duty of every citizen required that this currency must be con- 
 sidered in courts of law in the same light as if it had been issued 
 by a foreign government temporarily occupying territory of the 
 United States. 
 
 Contracts payable in this currency, arising out of transactions 
 in the ordinary course of civil society, though they may indi- 
 rectly and remotely promote the ends of the unlawful govern- 
 ment, could be enforced, and the court thereupon held the obli- 
 gation a just one. 
 
 We have referred to Thorington v. Smitih at length, although 
 appealed from the State of Alabama, because the first case of 
 record from Georgia upon this question was decided upon the 
 principles of the decision in this case. This Georgia case was 
 decided by the Supreme Court of the United States in Novem- 
 ber, 1869, after argument had the preceding month. It was on 
 appeal from the Circuit Court of the ISForthem District of Geor- 
 gia, land was the case of Dean v. Harvey, 'admr. A bill was 
 filed upon allegations of fraud, the same being founded wholly 
 upon the circumstance that land had been sold for Confederate 
 notes, there being no averment that the notes had been received 
 under fraudulent representations. The count below had sus- 
 tained a demurrer to the bill and its judgment was afiirmed. 
 
 The decision in the case of Thorington v. Smith gave rise to 
 much litigation throughout the South in the effort of members 
 of the bar to apply the principles therein annunciated to the con- 
 struction of other classes of contracts made in the several Con- 
 federate States iN'otably among the cases presented was one 
 
25 
 
 "wliidi went up from the State of Arkansas, wlierein it was 
 scnglit to have the bonds of that State, whicli were issued during 
 the war, and whdcli had been, used as a local circulating medium, 
 declared a valid consideration to support a contract. In the 
 decision rendered, Mr. Justice Miller, concurring, stated that he 
 had aissented witli much reluctance to the opinion in Thorington 
 V. Smith, but said he: "I did assent to it on the ground that 
 while it was unsupported by, and in some degTee at variance 
 witli, the general doctrine of the turpitude of consideration aa 
 affecting the validity of contracts, it was necessary to be estab- 
 lished as a principle to prevent the grossest injustice in reference 
 to transactions of millionfe lof people for several years in dura- 
 tion." AYliat an argument is this for our friends who are main- 
 taining that the liberal 'doctrines of the civil law are gradually 
 usurping the jurisprudence of our country! 
 
 As late as the year 1877, the court was called upon to apply 
 its ruling in the case of Thorington v. Smith, where, in the case 
 of Stewart v. Salamon, it held that a promissory note made in 
 Greorgia in 1863 was solvable in Confederate treasury notes. 
 I'he case was on appeal from the Circuit Couilt for the Southern 
 District of Georgia, the ruling of vdiicli court was in this case 
 reversed by the Supreme Court. 
 
 We pass now to another distinctive feature of reconstruction 
 litigation, and that was such as arose out of the several stay- 
 lav^ tO' which tlie necessity of the times gave rise. One of the 
 first of these laws was an ordinance of the Convention of 1865 
 suspending the statute of limitations in all cases civil and crim- 
 inal to be and to have been from January 19, 1861, till civil 
 government was restored or until the legislature shall otherwise 
 direct. This was legalized by the convention of 1868 so far 
 as it did not divest vested rights. This made it valid as to pros- 
 pective rights, but tbere was doubt as to whetiier it could restore 
 a party to a right of action lost by the running of the statute for 
 the full period presoiibed by law before its passiage-. An amus- 
 ing result followed against the plaintiffs in eiTor in the case 
 
26 
 
 of Brian, exr., et al. v. Banks, in their effort to take advantage 
 f»f tlie alleged illegiality of tli© act of December, 1861, suspend- 
 ing tlie statute of limitations from 1861 to June 1, 1865, in order 
 to avoid judgment on cer^tain notes sued on. Tliev pleaded that 
 there was no suspension of the statute 'because the legislature 
 which passed the a'ct of suspension was illeg'al. On appeal it 
 was lield that this contention, if maintained, would prove too 
 much for plaintiffs in eiTor, for if there was no legal legislature 
 there was no legal court in which the holder of the notes could 
 have sued. 
 
 We have already referred to the perplexity of the sheriffs as 
 to what was their duty in these uncertain times. These func- 
 tionaries were often nonplused as to how to enforce the man- 
 dates of the courts in the face of the numerous stay-laws. The 
 legislature of 1860 passed an act to grant relief to banks and 
 the people by providing that no fi. fa. should be levied except 
 imder certain conditions. The lact was to remain of force "dur- 
 ing the continuance of the present war." In Armstrong v. 
 Jones, the sheriff, in October, 1865, had been requested to levy 
 a certain fi. fa. which he declined to do unless plaintiff would 
 comply with the conditions of the act as to making certain affi- 
 davits. A rule absolute was refused, and on the appeal it 
 became necessary for the court to judicially affirm that the war 
 had ended. The justification of the siheriff depended entirely 
 upon whether or not the war existed on the 12th of October, 
 1865. This officer must have been one of those fighting Con- 
 federates who never did surrender, and who refused to recognize 
 the action of Generals Lee and Johnson, in the surrender of their 
 armies, as binding upon- him. The courtt below seemed equally 
 as imperturbable, and this in the face of the proclamation of the 
 Provisional Governor; but alas for the shei-iff, the facts were 
 against him, and he had to make good the loss of the cotton upon 
 which ho should have levied. We cannot refrain from quoting 
 iialf a dozen lines from this decision because they give us a com- 
 mingling of thought and sentiment of the lamented Chief Jusftice 
 
27 
 
 Lumpkin land of the late Clias. O' Conor; the one a high priest 
 of the law, -vvtho 'wias to Georgia what Marshall was to the Union, 
 the embodiment of Justice; the other the edoqnent advocate who 
 has gone down to history as the gi-eatest lawyer of his day, the 
 friend 'of constitutiomal government and the nnsweiwing cham- 
 pion of the rights of the South. Said the court, refemng to the 
 date of October 12, 1865: 
 
 "We hold that the war had terminated before that time. For 
 nearly six months prior to that period, all resistance to Federal 
 authority had ceased, and in the language of Mr. O' Conor, 'the 
 flag of Southern Independence no longer courted the breeze — 
 not a single bayonet of the Confederacy confronted Federal 
 power-^and the Confederacy itself was extinguished as com- 
 plettely as if its last dhampion had perished when Stonewall Jack- 
 son fell.' Submission to ithe authority of the victorious ISToi'th 
 was absolute and perfect throughout the whole i-ogion which had 
 been designated as in insurrection." 
 
 There lare few cases in the history of litigation in Greorgia the 
 decision of which was awaited with more interest than this case 
 of Armstrong v. Jones. It was generally believed that in it 
 the court would pass upon the constitutionality <yi the stay-law, 
 but the court declined to do so, and held "that a court will always 
 abstain from calling in question the constitutionality of an act 
 of the legislature, provided there be any other ground in the case 
 upon which to rest the judgment;" but the question did come a 
 year later in the celebrated case of Ayoock et al. V. Martin et al., 
 which brought under full force the entire question as to the 
 validity of the stay-laws. The act of 1860, above referred to, 
 liad been passed over the executive veto. This was the first stay- 
 law. This was re-enacted in 1861, in 1862, in 1863, and in 
 March, 1865. In JSTovember, 1865, the people in convention 
 passed a "stay-law," until the adjournment of the first session 
 of the next legislature. In March, 1866, the legislature en- 
 acted the "stay-law" over the executive veto, and again in De- 
 cember, 1866. 
 
28 
 
 Some of tli'ese acts provided 'for a su'spension of tlie statute 
 of limitations, others for stay of levy of exeoirtions, and others 
 for satisfaction of judgmeiDts 'at stated periods a.nd in install- 
 ments, but the general effect of all was a stay of the process of 
 the courts against the debtor class until the people of the State 
 could recover from the disaster of war. When Aycock v. 
 Martin was argued, there was la 'consolidation of four eases in one, 
 and the four brought in question not only the constitutionality 
 of the ordinance of 1865 and the act of 1861, but the later acts 
 of 1866, and in fact all the acts to which reference has just been 
 made. In one of the four cases embraced in this Aycock case 
 the presiding Chief Justice Warner had presided as circuit 
 judge. Two of tlie cases bad been argued at the previous term 
 of the court and had been held under advisement. The third 
 case, whicih was an action of trespass against the sheriff, was the 
 only one of the four whei'e the circuit judge had held in favor of 
 the conistitutionality of the law, he having sustained a demurrer 
 to the action in trespass. Linton Stephens and B. H. Hill were 
 among the very large array of eminent counsel engaged in this 
 controversy. The judges delivered their opinions scriatitn. 
 Judges Warner and Harris concurred in holding the stay-laws 
 unconstitutional. Judge Walker in a very able dissenting opin- 
 ion holding to the contrary. It was held that the binding force 
 and coercive power of the law applicable to the contract as the 
 same existed at the time it was made constituted the obligation 
 of the contract, and the legal right for its enforcement existed. 
 Therefore any legislative act postponing or obstructing enforce- 
 ment impaired the obligation and Was on this account void. 
 
 The fight seemed to wage thickest aroimd the argument of 
 Chief Justice Marshall in the noted case of Stergis v. Cromn- 
 shield, where it was held that there was a distinction between the 
 obligation of a contract and the remedy given by the legislature 
 to enforce that obligation, and that such distinction existed in the 
 very nature of things. It was insisted by the majority of the 
 Q^eorgia court that that case called for no expression of judicial 
 
29 
 
 opinion upon that point. Said Judge Harris: "These opin- 
 ions are obiter dicta. They have been productive of infinite 
 controversy. They have i>erplexed the legal mind of the 
 country ever since. They have been the parents of a prolific 
 brood of insidious and evasive efforts made by State legis- 
 latures under the promptings of unprincipled demagogues, who 
 have the people ever on their tongues but never in their hearts, 
 to destroy the machinery of government itself, by causing 
 collisions among departments where there should be harmony, 
 provoking, moreover, collisions and aTonsing jealousies between 
 the States arid general goveniment, in the exercise of the powers 
 granted by the people." 
 
 But Justice Walker, in his dissenting opinion, uses this same 
 •case of Crowin'slhield to susltain his argument thait the remedy 
 wa= entirely indejDendent of the obligation, and read in the light 
 of that day it did seem Itliat lie ha!d the best of 'tihe argumen't 
 though in the minority. Towards the close of this exliaustive 
 and able opinion O'ccur these words: "All I contend for is the 
 right of the supreme power of tihe State — the lawmaking power 
 — to withhold its ann from the creditor until the people, by in- 
 •dnstry and economy, may have a little time to recover from the 
 ^.evastations of a War uu|>aralleled in modern times; and which 
 swept over Grcorgia, from Dade to Chatham, leaving everywhere 
 lonely cihimneys as sentinels to tell of the ruin brought on the 
 •country. I insist that such legislation, under the circumstances 
 existing in our State, is just such as Chief Justice Taney referred 
 to when he s^aid: Tt must reside in every State to enable it to 
 save its citizens from unjust and harassing litigation; and, to 
 protect them in those pursuits which are necessary to the exist- 
 ence and well-being of every oommunity.' " 
 
 Want of time fonbids that I go more largely into this cele- 
 brated ease. To the older lawyers of Georgia it is familiar. To 
 those who know of these times as only a part of the history of 
 our State, I ■commend tlhis case .as one of the most interesting 
 pieces of legal literature in the Greorgia reports. It is a very 
 
30 
 
 length J case, consiiming nearly one Imn'clred pages of tte vol- 
 ume in which it is found, and its perusal 'mil afford to the student 
 of law and to the active lawyer much pleasure and profit. 
 
 It will be observed that these adjudications were prior to the 
 convention of 1868. Upon the 'atloption of the Constitution of 
 that year there followed many enactments which were operative 
 as stay-laws, and wMch gave to the several -courts much food for 
 profound thought, to the citizens unending causes of contention, 
 and to the members of the bar opportunity for constant legal 
 v/arfare and the acquisition of comforting fees. To some of the 
 most important of these enactments full reference has been 
 made. It needs only to be added that the provisions of the Con- 
 stitution of 1868 for a very liberal homestead and the judgment 
 of the Stiate Supreme Court, holding thvat the homestead act was 
 retrospective as well las prospective, had the effect of operating 
 'as a s!tay-law almost as disasitrous to the creditor class as any 
 former enactments of this time ; but when Grimn v. Barry oame 
 from the Supreme Court of the United States, in 1873, reversing^ 
 tins ruling, the disheartened creditor 'dlass took new hope. 
 
 The judgment in the Gunn case was sweeping in its extent. 
 It settled more than the mere question of the effect of the home- 
 stead act. It estopped all possibility of claim that the State 
 Constitution possessed any additional virtue by having had the 
 sanction of 'the Congress. "Congress (said the eourt) cannot, by 
 authorization or ratifi'oaltion, give the slighitest effect ito a StaJte 
 law or constitution, in conflict with the Constitution of the 
 United States." This case also settled finally the point which 
 had so engaged the attention of oiu* State court in Aycock v. 
 ]\iar*tin, above refeiTcd to, and enunciated as law in unequivocal 
 terms the proposition that the legal remedies for the enforcement 
 of a contract, which belong to it at the time and place where it 
 is made, are a part of its obligation, and any constitutional pro- 
 vision or legislative act whidli subs'tan'tially changes such reme- 
 dies is utterly void. Thus did the calm and dispassionate judg- 
 ment of the highest judicial tribunal of the land, in the later 
 
31 
 
 rears, siist'aiin the juclgmenit of tlie able executive who had per- 
 sistentlv vetoed, and the opiniooi of the conscientious judges 
 who 'had as persistently declared against these unwholesome laws, 
 despite the clamors of tlie people in the stormy days of ci^dl 
 strife and the black nights of reconstruction. 
 
 We will conclude our reference to stay-law litigation by a 
 passing mention only of what was known as >the adt of 1869. 
 This limited the right of action to Janu^ary 1, ISTO, in the cases 
 as in said act enumerated, and thereby operate'd as a stay-law 
 which shut out much litigation whdoli would otherwise have 
 arisen, and served to settle definitely many matters which would 
 have vexed the courts for years. This act was very extensive in 
 its application, but did not, however, prevent the suggestion of 
 many coanplicated questions ^-ihere doubt existed as to its applica- 
 bility. This gave rise to some litigation, but the act upon the 
 'whole was salutary. It recited in its preamble that it was passed 
 on account of the confusion that ihad gro^vn out of the distracted 
 condition of affairs during the late war. Its oonstitutionality 
 was tested in George v. Grardner, and sustaiued by the United 
 States Supreme Court in Terry v. Anderson. 
 
 Another source of litigation in the reconstruction period in- 
 volving the most intricate questions was tHie. status of the freed- 
 men and the obligation of slave contracts. At the very outset 
 there were grave complications as to what relation to the body 
 politic stood the half million of emancipated slaves in Georgia, 
 and it became necessary, under the new order of things, to define 
 exactly what was meant by the words "persons of color" as they 
 stood in the Code. These were declared by legislative enact- 
 ment to be such persons as had one-eighth of African blood in 
 tlieir A^eins. The act so defining them gave these persons the 
 power as freedmen to make contracts, sue and to be sued, testify 
 in the courts, inherit, purchase and sell property, and to enjoy 
 material rights and security of personal esftate and such other 
 rights as are embraced in the usual civil rights of citizens, but 
 this enactment did not, with all this, confer the rig^'hts of citizen- 
 
32 
 
 ship. Tlie fact of em'an'oip'ati'on "Was oibliged to be 'acoep'ted, and 
 tliis new factior in the body politic, the freedman, necessarily 
 had to be recognized. The withdrawal from the control of land- 
 owners of the splendidly equipped system of slave labor forced 
 n]>on the landed proprietors employment of the freedmen as day 
 laborers and as tenants. Tliis led to contracts for labor and for 
 supplies, and ont of these grew num'bers of lawsnite, and it wias 
 years before the respectiye rights of the jDarties to these new 
 species of contracts became to be definitely settled and nnder- 
 stood. 
 
 By far the two most important qnestions for adjudication 
 upon this subject of the slaves and the slave contracts were: first, 
 the nature of the obligation of oontr'acts wherein the slave prop- 
 erty was a consideration, and second, the sitatus of 'the slave as a 
 freedman. 
 
 We will refer briefly to ^tlhe first questiion. As soon as tte 
 war ended parties began immediately ito seek enforcement of 
 their rights through the courts, and countless notes, the consid- 
 eration for which was slave property, were placed in suit. One 
 of the first cases of ■w^hioh we read was Hand f. Armstrong, 
 where the defendant pleaded non-lia!bility on breach of waiTanty 
 because of emancipation. There was a waiTanty that the prop- 
 erty sold were slaves for life. It was declared that there was 
 no breach because the warrantor did not covenant against the 
 act of the government. 
 
 The convention of 1868 incorporated in the celebrated Con- 
 stitution of tliat year a section to the effect that no court or officer 
 shall have, nor shall the General Assembly give, jurisdiction to 
 try or give judgment on or enforce any debt, the consideration 
 of which was a slave or slaves, or the hire thereof. Wlien this 
 became the law there remained but one thing to be done by 
 those holding these slave contracts, and that was to test its con- 
 stitutionality. The question, like almost every other important 
 question brought before the courts in those days, required an 
 elaborate discussion of the bearino; of the Federal Constitution 
 
33 
 
 upon tlie relation of the people of G-eorgia 'to the Union both 
 at the beginning, during and at the tennination of the ci^^I 
 struggle, and during the period of reconstruction. Shorter sued 
 Cobb in Randolph superior court, in JSTovember, 1868, on a. 
 simple promissory note the consideration of which was a slave. 
 The case on appeal was 'decided by the Supreme Court of Geor- 
 gia, at its June term, 1869, and by a divided court, the opinion 
 being that the courts of Georgia had no jurisdiction of such a 
 case. On this apparently simple case the right of secession, the 
 status of Georgia in the Union, the authority of Congress in 
 establishing a provisional government subsequent to the declara- 
 tion of peace, the org-anization and admission of States into the 
 Union, the guaranty by the general government to each State 
 of a republican form of government, and all similar and kindred 
 questions were elaborately discussed. Following this case im- 
 mediately was White v. Hart, involving the same question, a 
 case which found its way to the higher tribunal and invoked a 
 discussion of the same questions, causing the Supreme Court to 
 hold that the clause of the State Constitution above referred to 
 was void, and ito hold further that the recooistructed States of the 
 South had never been out of the Union. The case of White v. 
 Hart, of course, resulted in the overruling of all former deci- 
 sions of the Georgia courts as to this form of contracts, and then 
 the brethren of the bar had large employment in moving to set 
 aside the many eiToneous judgments which had been rendered 
 in such eases; but actions arising upon such contracts have at 
 last been long since barred, and we can confidently state that this 
 class of litigation is distinctly of the reconsti'uction period only 
 and will be found to have filled a very large share of the court 
 records of (those days. 
 
 Till the Constitution of 1868 the status of the slave as a 
 citizen did not admit of a question among the people. The act 
 of 1866 designated him as a person of color and defined his 
 lights. There was a collateral question growing out of the 
 solution of his status, which, in the domestic reconstruction of the 
 
34 
 
 State, came near sbaking tli© very fouiidation of society. This 
 was his rigiht to imtermaiTiage with the w'hites. In the case of 
 Seoitt V. The S'tlate of Greorgiia, the courts ihiad ito pass npon tihe 
 legality of this marriage relation. The jndges, to their honor 
 be it said, thongh some of them had gone to great lengths along 
 other lines to sustain partizan prejudices, nevertheless in this 
 matter stood as one man and announced the practice of miscege- 
 nation as illegal, and the claim to social equality beitween the 
 races as unwan^anted and without law to support it. What 
 w^ould have been the future of Georgia had their decision been 
 otherwise? 
 
 The question, however, paramount to all others, was the right 
 of the slave as a freedman to vote and to hold office, a right 
 which was not recognized by the citizens of the State even after 
 the adoption of the Consititution of 1868, in which instrument 
 he was recognized as a citizen and was given the right to vote. 
 The President of the United States, in 1866, demianded of the 
 seceding States a recognition of the fact that slavery was abol- 
 is-hed and required a repndiation of the war debt, and these de- 
 mands were promptly complied with upon the part of Greorgia. 
 The extreme partizans of the party in j>ower were not satisfied, 
 and there began a struggle with them and the President which 
 resulted in a demand for the recognition of ^vhat were kno^^m as 
 the fourteenth and fifteenth amendments to the Constitution. 
 The former made tih'e negro a citizen, and the latter, whidh, how- 
 ever, was not ratified by Georgia till 1870, enforced negTo 
 suffrage. 
 
 The legislature of 1868, though following the convention of 
 1888, refused to recognize the freedmen claiming seats in 
 the former body as legally entitled thereto, and they were ex- 
 pelled. The legislature, however, accepted and ratified the 
 Fourteenth Amendment, and Rufns B. Bullock was inaugurated 
 as Governor July 22, 1868. This expulsion of members took 
 place in December, 1868. Again in March, 1869, the legisla- 
 ture had under discussion the aooeptan'ce and ratificaltion of tIhe 
 
35 
 
 Fifteenth Amendment entailing negi'o snffrage and tlii's was re- 
 jected. It was then that a hill was introduced in Oongi-ess (De- 
 cember, 1869), making the acceptance of this amendment a con- 
 dition of the admission of the State into the Union. The legis- 
 lature of 1870 was organized under military order and the Grov- 
 ernor of the State was aided in his efforts to administer the 
 affairs of the executive office in his own way by th© military 
 authority of the general government. While the legislative an'd 
 executive branches of the State government were thus contend- 
 ing over this question as to (the status of the slave, the courts 
 were likewise preparing to settle the same in a judicial way. 
 The test case was made in Ohatham county, where White, a 
 negi'O, had been elected to the office of the clerk of the superior 
 court of Chatham county, and Clements, a white citizen, who 
 had received tihe iiex!t highest vote, filed a petition praying leave 
 to file an information in the name of the State in the nature of 
 a quo ivarranto, inquiring by what right White held the office. 
 The case was tried before Judge William Schley, of the circuit 
 bench, aud White was represented by James Johnson, the ex- 
 provisional Governor of the State, and Amos T. Akennan, after- 
 ^vard Attorney-General of the United States. The jury found 
 A^rhite to be a negTo, as it was known that he had one-eighth of 
 African blood in his veins, and the court ordered that he desist 
 from intenneddling with or exei^cising th'e duties of the office. 
 'I 'lie case was argued at great length in the Supreme Court, and 
 its result was awaited with the deepest interest. At that time 
 the intelligent white people of Georgia and those owning prop- 
 erty felt thait a reversal of the decision of the court below would 
 result in absolute ruin to the State, because with the negro enti- 
 tled to vote and to hold office, assisited by the white element then 
 controlling him and backeid by federal au'tlliority, there would 
 be no j>ossible chance to save the State from complete destruc- 
 tion. As usual on sudh questions there was a divided court, but 
 tlic majority reversed the court below and settled the status of 
 the negro as a freedman, holding that he was a citizen of the 
 
36 
 
 Stare, entitled to all the rights of personal security, persona! 
 liberty, the right to hold and dispose of property, the elective 
 franchise, the right to hold office and to appeal to the courts, to 
 testify as a witness, perform any civil function, and to keep and 
 bear arms. In this case the legality of the convention of 1868 
 was discussed ait great leng-th. The dissenting opinion of Judge 
 AVamer upon this question was based on the proposition tliat 
 while the Constitution of 1868 declared the negro to be a citizen 
 of Georgia, it did not specially confer upon him the right to hold 
 office. Upon the contrary a proposition t.o confer that right 
 upon him had been voted down by the convention of 1868, as 
 ^hown by the journal of that body, clearly indicating that the 
 legislative will of the cooivention was that he should not be 
 allowed to hold office. He further contended that the 'adoption 
 of the code of 1863 by the convention did not impliedly carry 
 with it the right to the negro to hold office, because when the 
 law of the Code ^Vas enacted such a class of citizens was not con- 
 templated. This case was decided in June, 1869, but the appre- 
 hensiou's of the people as to the effect of the decision liappily 
 proved unfounded; the legislature of 1870 accepted the require- 
 ment of Congress in ratiifying the fifteenth amendment, and 
 negro suffrage and the right to hold office was a fixed fact. The 
 federal power, contrary to expectation, stayed its hand of inter- 
 ference, the chief executive, the year following, resigned his 
 office and fled the State, and a legislature was organized, hia^nng- 
 been elected by 'the white people of the State and by many of 
 the better class of negro vdters. On January 12, 1872, James 
 M. Smith, who had been the Speaker of the new House of Kep- 
 resentatives, was inaugurated as Governor. The machinery of the 
 State in all departments now began to run sm.oothly ; passion had 
 s^Dont its novel force, and soon IJlie public seutiment crystallized 
 in the assembling of the new State Convention and the adoption 
 of the. new Constitution. This was done, and from that date 
 vrhat Ave know as the Reconstruction Period is only a matter of 
 liistory. 
 
37 
 
 It will be 0'bse!r\^ed tliat I have thus far treated only of leading- 
 questions provocative of litigation in the reconstruction period. 
 Kelief and stay-laws, Confederate oonttraets and the statns of 
 the slave were without douibt the most pTOlific sources of forensic 
 contests, but these were not all. Proprieties of the occasion for- 
 bid detailed reference to the ninltalbude of other causes of con- 
 troversy. 
 
 There was a large class of cases growing out of the rightful' 
 ownership of proper'ty which had been sequestrated as belonging 
 to alien enemies under the enactments of the Confederate gov- 
 ernment. 
 
 A novel case arose out of the right of a holder of a promissory 
 note to recover where the consideration was for services rendered 
 as a substitnte in the army. The contract w'as held illegal and 
 it became necessary for the com't to solemnly adjudicate that 
 Georgia could not secede from the Union. "By no act (say tlie 
 court) could the State destroy the unity of the Oovernment of 
 which she cons)titiited an integral part, except by successful revo- 
 lution, Which had not been accomplished." The majority of the 
 court declined in this case to denominate the struggle between 
 the States a ci^al war or a reibellion, but Judge Hams dissented 
 and boldly declared secession a right, the contest a public and 
 civil war, and the government a de facto government. (Ohan- 
 cely V. Bailey.) 
 
 As Reconstruction is as a book that is closed, one may be led 
 to inquire the ultimate effect of the litigation of this period upon 
 the State. It has been said that the surroundings and necessities 
 of the people shape their legislation, and that it is the business of 
 the oomts and the lawyers to adapt the pa-inciples of law to these 
 exigencies of life. Truly was this the case in the period of which 
 we hJave written. The entirely novel surroundings of the people 
 of Georgia from 1865 to 1872, and their peculiar necessities, 
 gave rise to novel and unheard of legislation, and her peculiar 
 relation to the govem'menit suggested new and great questions 
 radically affecting grave and important constitutional principles. 
 
38 
 
 Step 'by step tlie courtB were called upon, witli tlie aid of tlia 
 bar, to adapt legal prineiples to these new conditions. In doing 
 this, however, they not nnfrequently were called to administer 
 justice regardless of precedent. More than once was it an- 
 nounced that each case growing out of the prevailing conditions 
 of those 'times had to be decided upon its own merit. This being 
 true it will be observed that in the reoonstruction litigation there 
 seems to have been a gradual drifting from the enforcement of 
 technicalities and a tendency towards the administration of jusr 
 tice on principles alone of equity 'amd a sense of right. I am 
 not so sure but that the methods of those days awakened a line 
 of thought whidh in time gave to us of this day the courage to 
 take tllie steps which have been taken in the breaking away from 
 form and precedent. Can we not see in the "General Procedure 
 Act," the 'abolition of fomialities in pleadings (by a more liberal 
 amendment of this act), the merging of many of our distinctive 
 coui*ts into one tribunal of justice, amd in kindred measures, the 
 same spirit which characterized .the lawyers of those days in 
 shaping legislation and litigation to existing conditions? 
 
 Reflection upon the subject in hand would not be complete 
 without at leadt a general reference to tihe judges and la'wyea's 
 who Avere moving, acting figures in this great drama of reoon- 
 struction. 
 
 In a scfliolarly paper presented to this A'ssociation in 1887 the 
 circuit judg'e of reconstruction days was panegyrized in elo- 
 quent and truthful language hj one of the most accomplished 
 memibers of this body. In those days, when the liberties 'and 
 property of the people were "tossed as a weaver's shuttle to suit 
 the caprices of men in power, when the sliifting will of a petty 
 military despot caused law and right to quiver in the balance," 
 the circuit judges stood like solid walls, and the judges of tihe 
 higher courts, while wrapt in the very e!torm-cloud of passion 
 and often overwhelmed by political influences which dem'anded 
 other judgments, in most instances rendered decisions founded 
 upon the principles of justice and right. In great civil questions 
 
39 
 
 tliese ai^biters of tlie law most frequently differed, and yet it was 
 this difference wliioli led to a clearer aind more just sense of 
 riglit, just as the contending forces of nature, in itheir battling, 
 purify the atmosphere. Let us remember that when the regen- 
 eration of the State began there was an uitter absence of law, a 
 want 'of protection and security of persion and property, without 
 whidh there can be no advance in civilization ; that (ther^e was nd 
 representation in the national legislature and the State Govern- 
 ment was under military surveillance. The people were torn 
 asunder by reasion of bititer political differences and everyr^vhere 
 was the evidence of devastation. 
 
 True, thei-e was a "sleep of th'e lightnding, a lull of the wind, 
 and a hush of the thunder of war," but the track of the storm 
 had been left, and out of this dhaos the work of reh'aibilitation had 
 to begin. When we reflect that in less than a decade the great 
 work of reconstruction was accomplished, and w*hen in the hisr 
 tory of its litigation, we are led to view with unprejudiced eye 
 the noble part perfonned by the courts and the lawyers, we do 
 not hesitate to accord 'to tiliem the greatest pmise. Truly has it 
 ibeen said by one of the best and bravest of the Georgia bar, now 
 gone to his rest, and who was an active participant in these 
 scenes, that the bench and t!he bar are the ministers to whom the 
 State has entrusited the exposition and application of the prin- 
 ciples of right and justice, and upon their learning, their in- 
 tegrity and diligence and their fidelity to trusts are secured the 
 permanent and fruitful development of the institutions of the 
 State, and to all the people are assured the equal protection of 
 the laws. 
 
 The lawyers of the reconstruction period, not only for Geor- 
 gia, but for all of the seceded States, gave a practical illustra- 
 tion of the recognized fact that with the members of the bar, 
 whether on the bench or in the practice, is lodged that con- 
 servatism and that power of arriving at what is best for the 
 general good, so necessary in the preservation of the State. 
 
 In. the ease of Hardeman v. Dooner, involving the impor^ 
 
40 
 
 tan't question of the conetitutionalitj of tihie Hoinestea:(i Laws of 
 tLe Constitution of 1868, tli'e court indirecltly pays a splendid 
 compliment to this phiase of the lawyea*'s chaiiacter whei'e judi- 
 cial reference is made to the fact that in the convention of 
 1868 the 'beet lawyer in that body, though in thorough sym- 
 pathy with the political party then in power, voted against the 
 adoption of the instrument 'as a whole because he cooild not 
 believe in the legality of the relief clause and because of the 
 retroactive effect of the homestead provision — 'a position so 
 effectually sustained by the courts long after^vards, as you Avill 
 recall from the citations already made upon that subject. I 
 trust thkt I will be pardoned for quoting m itMs connection an 
 e>:cer]Dt from the address of Hon. William L. Wilsfon, delivered 
 in January last before the jN^ew York Bar Association. Said 
 he: "The more we reflect upon all that occurs in the United 
 States, the more sihall we be persuaded thiat the lawyers, as a 
 body, form the most powerful, if not the only 'oounterpiece to 
 the democratic element. In this country we perceive h'ow emi- 
 nently the legal profession is qualified by its powers, and even 
 by its defects, to neutralize the vices which are injliei-ent in 
 popular government. AVhen the American people is intoxi- 
 cated by passion, or earned away by tihe impetuosity of its 
 ideas, it is cheeked and stopped by the most invisible influence 
 of its legal counselors, who secretly oppose their aristocratic 
 propensities to its democratic instincts, their superstitious at- 
 tachment to what is 'antique to its love of novelty, tllieir narrow 
 views to its immense 'designs, antl (their habitual procnasitiniation! 
 to its ardent impatience." 
 
 It has been well siaid 'tiliat lawyers as a class fonn a party 
 which is but little feai-ied land scarcely perceived; which lias no 
 badge peculiar to itself, but wliich witJli great flexibility accom- 
 modates itself to the exigencies of tiie times, to all the m'ovef- 
 mente of the soicial body; and that this party extends over the 
 whole commurnity and penetrates 'into all classes of society, act- 
 ing upon the country imperceptibly, but finally fasliioning it 
 
41 
 
 to suit i'ts purposes. Applying tliis sentiment to Georgia, we 
 cannot be charged With partiality, if, after the lapse of more 
 than a quarter of a century from the closing days of Recon- 
 struction, we claim for the Bench and for the Bar of Georgia 
 most of the credit for the safe conduct of the State through the 
 pei'ils of those days amd tlie final restoration of the common- 
 wealth to her O'^vn sons, a restoration which has brought to the 
 State continually enlarging prosperity and given to the peoiple 
 that happy condition for wliich the noble Jenkins had so de- 
 voutly wished. 
 
 CASES CITED. 
 
 Abbott V. Dermott 34 Ga. 226. 
 
 Armstrong v. Jones 34 Ga. 311. 
 
 Aycock et al. v. Martin 37 Ga. 124. 
 
 Brian, ex'r, et al. w. Banks 38 Ga. 301. 
 
 Butler et al. v. Weathers 39 Ga. 524. 
 
 Cutts & Johnson et al. v. Hardee 38 Ga. 350. 
 
 Cherry v. Walker 36 Ga. 327. 
 
 Chancely v. Bailey 37 Ga. 532. 
 
 Dibble v. Pearce 59 Ga. 619. 
 
 Dean v. Harvey. 8 Wall. 15 (L. E. Bk. 19/365). 
 
 Evans v. Walker >. 35 Ga. 117. 
 
 Fleming n. Dorn 34 Ga. 214. 
 
 Graham v. Clark 40 Ga. 660. 
 
 Georgia R. R. & B'k'g Co. v. Eddleman 38 Ga. 467. 
 
 Gunn V. Barry 44 Ga. 351 and ] 5 Wall. 610. 
 
 George v. Gardner 49 Ga. 441. 
 
 Georgia v. Stanton, Grant & Pope 6 Wall. 50 (L. E. Bk. 18 / 721). 
 
 Hand v. Armstrong 34 Ga. 232. 
 
 Hanauer v. Woodruff 15 Wall. 439 (L. E. Bk. 21 / 227). 
 
 Hardeman v. Dooner 39 Ga. 445. 
 
 Hudspeth, shff., v. Johnson 34 Ga. 408. 
 
 Journal of Convention of 1865 34 Ga. 491. 
 
 Jones V. Rogers & Son 36 Ga. 157. 
 
 Lott V. Dysart et al 45 Ga. 355. 
 
 Mitchell V. Cothran & Elliott 49 Ga. 125. 
 
 McLaughlin & Co. v. O'Dowd 34 Ga. 487. 
 
 Miller v. Artemus 38 Ga. 467. 
 
 Shorter v. Cobb 39 Ga. 285. 
 
 Stewart v. Salamon .... 4 Otto. 434. 
 
42 
 
 Stergis v. Crowinshield 4 Wheat. 199. 
 
 Scott V. State of Georgia 39 Ga. 821. 
 
 Slaughter et al. v. Culpepper 35 Ga. 25. 
 
 Thorington. app't, v. Smith & Hartley 8 Wall. 1 (L. E. Bk. 19/361). 
 
 Terry v. Anderson 5 Otto. 628. 
 
 Walker v. Whitehead 43 Ga. 539 and 16 Wall. 314— 
 
 (L. E. Bk. 21 /357). 
 
 White V. Lee 40 Ga. 266. 
 
 White V. Herndon 40 Ga. 494. 
 
 White V. Hart 39 Ga. 306 and 13 Wall. 646— 
 
 (L. E. Bk. 20/685). 
 White V. Clements 39 Ga. 239.