APPENDIX F. SUBSTANCE AND SHADOW IN THE LAW. ANNUAL ADDRESS DELIVERED BY ASSOCIATE JUSTICE J. H. LUMPKIN OF THE SUPREME COURT OF GEORGIA. Mr. President and Members of the Bar Association: Two of the shortest substantive words in the English language are among the most potent in significance - God and law. Aside from any theological consideration, the former expresses man's highest conception of perfect power and perfect excellence. The latter implies the idea of the beneficent power which is applied through government for the benefit of those within its domain. The one represents the absolute and infinite truth. The other is a branch of truth apprehended by men — only partially, because of their finite and imperfect capacity— and applied as rules for their civil dealings with their fellowmen. Aaron Burr is reputed to have uttered the notorious, if not famous (or infamous) cynicism, that "Law is whatever is boldly asserted and plausibly maintained." (Bent's Familiar Sayings of Great Men, p. 86). If so, he neither stated the truth, nor in the minds of thinking people aptly characterized real law. In that saying he exhibited not the nature of law, but his own nature, whose highest ideal was selfishness, and whose end and aim was personal success and self gratification, no matter at what cost to others, or at what sacrifice of their rights. And those who consider law as only a means of gaining some advantage over others regardless of whether it be right or wrong- and then abuse the law as unjust, would do well to examine their own hearts, to see whether the injustice is in the law or in themselves. It has been said that only delinquents object to justice, and not infrequently those who most sneer at the law are those who should recall John Trumbull's homely couplet : "No man e'er felt the halter draw Epigramatic expressions are often partial, and sacrifice accuracy of thought to striking form. But if such method of speech is to be employed, the statement referred to above might be paraphrased with more of truth by saying that, "Law is that which is properly asserted and justly maintained as a rule in the civil relations of men." Judge Dillon has expressed the ethical nature of law very aptly when he said: "These constitutions, statutes, judicial decisions, and treatises are numbered by thousands. They are almost unknown to the mass of men; they are at best imperfectly known to lawyers; and yet so it is that any man who in good faith obeys the dictates of a pure and honest heart, whose civil conduct toward his fellow men is guided by the sense of justice and right which is graven on his heart by the supreme Law-giver, will find such a course of conduct, except in the rarest instances, to be in perfect conformity with the requirements of the laws of his country." (Laws and Jurisprudence of England and America, p. 14.) The oft quoted statement of Hooker is worthy to be repeated in the same connection. He said: "Of law there can be no less acknowledged than that her seat is the bosom of God, her voice the harmony of the world. All things in heaven and earth do her homage the least as feeling her care, and the greatest as not exempt from her power." Analytical jurists may criticise and carp at this statement if they will; but it is lofty in sentiment and inspiring in tone. I do not mean to say that the law, as we see it declared and administered, is perfect, any more than anything else human is perfect. Legislators sometimes promulgate partial or oppressive laws, or those which favor one class at the expense of an other. But legislators are only human, and such legislation, when it occurs, may be due to short-sightedness a sort of legislative myopeia-or to the inherent limitations upon the scope of man's mental vision. Courts are human and fallible, however earnestly they may strive to decide aright. But errors of legislatures or of courts are only temporary incidents in the progress of truth. Sir James Mackintosh, in a lecture at Lincoln's Inn, said that, "Justice is the permanent interest of all men and of all commonwealths." DeFoe, with greater terseness, said: "Justice is the end of government." To this may be added the familiar statement of Pitt that, "Where law ends, tyranny begins." If these things be true,-and indeed they but partly express the great truths to which they point - how noble is the law! How sacred a duty and profound a responsibility rest upon those who make and those who administer it! Lawyers are participants in this great work. They share in the privilege, in the duty, and in the responsibility. I would that every lawyer should earnestly feel the sentiment expressd by Mr. Webster, at a bar dinner in Charleston, when he said: "The law: It has honored us, may we honor it." The ultimate nature and spirit of the law being so high in its character and purpose, let us glance briefly at the sources whence it has derived its present forms and methods of administration. The two great sources or systems of law, as we know it, are the Civil and the Common Law. The original home of the Civil Law was Rome; of the Common Law, England. In Rome there had been customs and precedents more or less established, but in a confused and uncertain condition prior to the making of the code known as the Twelve Tables. This was the great foundation on which the whole Roman law rested. It is remarkable, as illustrative of human weakness and frailty, that even a codification or brief formulation of the laws involved so much of bitterness and strife, coupled with charges of sharp practice and fraud quite equal to those in modern politics. The first bill looking in the direction of codification was proposed in the Roman Comitia Centuriata, or Assembly of the Centuries, in 462 B.C., and provided for a commission of five plebians to draw up laws defining and regulating the power of the consuls. This was strongly resisted by the patricians. Finally, in 452 B.C., a bill was carried sanctioning the appointment of ten commissioners, for one year, with sole and supreme power, for the purpose of compiling a complete code of laws. Mr. Hunter in his work on Roman Law (pp. 15-16) gives this brief account of the ten commissioners or decemvirs: "Next year, B.C. 451, the ten commissioners (decemviri legibus scribendis) took office, with absolute power, all the other magistracies being suspended. All the ten were patricians. Each commissioner administered the government in turn for a single day. They drew up a body of laws which was approved by the Senate and Comitia Centuriata, and was straightway set forth in public in ten tables of bronze. The further history of the Decemvirate is in confusion inextricable, and one can only conjecture the course of events. The work apparently having been represented as not complete, the decemviral form of government was continued for another year. The new Decemvirs are said to have included three, or even five plebians, who were indebted for their election to the influence of Appius Claudius — the only one of the first Decemvirs that secured reëlection, and that by an irregularity. . . The additional laws drawn up by the second Decemvirs appear to have presented to the patricians insuperable objections; and the Decemvirs refused to resign until their laws should be passed. This, however, was an unconstitutional position that could not be maintained. The Decemvirs accordingly demitted office in B.C. 449, and the dual system of consulship and tribuneship was reëstablished. The new consuls, Valerius and Horatius, immediately drew two tables of lawsno doubt the two tables of the Decemvirs, more or less modified which were duly passed and published." The two new tables were added to the original ten, and thus were formed the famous laws of the Twelve Tables. Imagine, if you can, codifiers of the laws in Georgia having supreme control of the State while they were engaged in their work, and refusing to leave office after their terms had expired because their codification had not been approved! Think of digesters or codifiers being elected by fraud, or, as Mr. Hunter euphemistically terms it, "irregularity!" Such things were alleged in connection with the first great Roman code. And yet those men did wonderfully good work, a work which, with subsequent additions and changes, formed the basis of the Civil Law, and thus has furnished the ground-work of the legal systems of more different countries than any other code or all other codes ever made. The Twelve Tables contained a short statement of those rules of Roman law which were most important in the affairs of daily life. They were not entirely new enactments. In large part they were drawn up as a statement of the law as it already existed. They were not, however, a mere incorporation of ancient customary law, but a substantial codification, involving a certain amount of modification and change, supposed to be mainly in unessential particulars, to make a consistent whole. As these tables have played so large a part in the subsequent legal history of the world, I deem it not improper to give a brief synopsis of the subjects dealt with in them. They were: I, Proceedings Preliminary to Trial; II, The Trial; III, Execution; IV, Patria Potestas (Paternal Power); V, Inheritance and Tutelage; VI, Ownership and Possession; VII, Real Property Laws; VIII, Torts; IX, Public Laws; X, Sacred Laws; XI and XII, Supplementary. These laws were gradually modified and enlarged, mainly under the influence of Prætors, or the highest judicial magistrates, the Jurisconsults and legislation. The Jurisconsults were an unusual, non-official set of men, who made a business of being learned in the law and giving advice in regard to it. The Prætors were not only magistrates, but were also statesmen, or politicians, and were not infrequently engaged in an active race for election as consuls. They were not required to be lawyers; and they often had to resort to those learned in the law for advice. And thus Jurisconsults came to be advisers of the Prætors. As Mr. Hunter has tersely expressed it. "The men that knew the law had no direct participation in the ad |