Savannah Bar Association 1993
"Stand aside and let Old Chatham speak."
A Short History of the Savannah Bar and the Savannah Bar Association
by Gordon Smith
From the earliest appearance of lawyers in Savannah, they considered themselves to be the Savannah bar. In this manner of association, they often met at the courthouse to conduct business of interest to their profession. As a committee of individuals, they would gather to elect a chairman, usually the presiding judge of superior court, who in turn appointed a secretary, usually one of the younger members of the bar, on a particular topic of interest. If they felt it needful, they appointed a committee to present resolutions representative of the feelings of the bar, to compile memorials to departed members of the profession, or to transact specific business for the bar as a whole. However, in 1894 a voluntary association of a number of members of the Savannah bar formed the Savannah Bar Association, which was consolidated under that same name with the Law Society of Savannah in 1917. This formal, professional organization has prospered down to the present. The history of the latter necessarily begins with the earlier history of the former, and it is in this manner that the whole is presented below.
Under the Trustees: 1733-1752
The colonization concept of the Trustees of Georgia took into account the sensitivities of some of the intended colonists, those who were to be taken from the cruelties of England's debtor prisons. So, like rum, slaves, and Papists, lawyers were banned entirely at the beginning of the colony.
The 1732 Charter of the colony empowered the Trustees "to erect and constitute judicatures and courts of record, or other courts." The broad jurisdiction of these courts included the following, "for hearing and determining of all manner of crimes, offences, pleas, processes, plaints, actions, matters, causes and things whatsoever, arising or happening, within the said province of Georgia, or between persons of Georgia, whether the same be criminal or civil, and whether the said crimes be capital or not capital, and whether the-said pleas be real, personal, or mixed .... "
The first court in the new colony, the Town Court of Savannah, opened on 7 July 1733, a day set aside for feasting and thanksgiving. It was presided over by three bailiffs. It also had both a recorder and two constables. The court met in a split-board structure at Bull and Bay Lane used both as "tabernacle" and court. This court's jurisdiction was potentially enormous, since the boundaries of Georgia were said at the time to extend "from the most northern stream of the river Savannah along the sea coast to the most southern stream of the Altamaha, and westward from the heads of the said rivers, respectively, in direct lines to the south seas." These court officers exercised their new powers that same day by then and there trying a case. They were uninhibited in the exercise of authority by lawyers or any knowledge of judicial equities and restraints. The presiding officer wore a gown of purple, edged with fur.
A short time later, Thomas Causton became a bailiff. From that moment, Georgia began its first experience with despotism. "Of limitless ambition; passionate and proud, regarding public office as a private investment...," Thomas Causton became the single court figure of his domain, and his "will and pleasure were the only laws in Georgia."
Without further rights of appeal or redress except directly to the Trustees in distant England, the citizens who fell into Bailiff Causton's grasp learned first hand about an unchecked judiciary. In a typical case, one Mr. Odingsells visited Savannah from his nearby home in South Carolina. That night poor Odingsells was arrested as a stroller and carried to the guardhouse. There he was so threatened with the stocks and whipping post that, "being a mild and peaceable man," he flew into a "high and strong delirium." After lying in this "distracted condition" for days, crying out to all, he died.
After consistently ignoring the flood of complaints against Causton, the Trustees finally summoned him home when they were informed that he had become "free handed" in drawing up sola bills, or bills of credit. He died at sea on his voyage back, so everyone was relieved. Of Causton's replacement Thomas Jones, however, it was said that he surpassed Causton in everything that was bad "without having one of his good qualifications." Another bailiff could neither read nor write.
Crown Colony: 1752-1775
On 23 June 1752 Georgia became a crown colony. The trustees surrendered their charter, and control of the colony passed to the Board of Trade and Plantations, acting under authority of the king. In 1754 the Lords' Commissioners submitted a comprehensive court plan. This court scheme provided for five court systems in Georgia:
1. The General Court was held four times annually. It had the same jurisdiction in Georgia that the Court of King's Bench, Common Pleas and Exchequer exercised in England. The presiding judge was the chief justice of Georgia." He had three assistant judges. It was required that the chief justice be a barrister-at-Iaw who had attended at Westminster Hall.
2. The Court of Session and Oyer and Terminer and General Gaol Delivery, a criminal court, was held twice annually.
3. The Court of Admiralty for maritime cases had four members, with the governor granting commissions to a judge, an advocate-general, a marshal, and a register. Appeal was to the High Court of Admiralty of England.
4. The Court of Chancery heard equity cases, with the governor sitting as chancellor. Its officers were master, register, and examiner.
5. The Justice of the Peace Courts or Courts of Conscience were inferior courts whose presiding officers were similiar to modern justices of the peace. Jurisdiction of these courts was over petty crimes and cases not exceeding eight pounds, and where damages in debt claims did not exceed forty shillings. The governor had the sole authority to probate wills, administer intestate estates, and appoint guardians. The "Act for the More Easy and Speedy Recovery of Small Debts and Damages," passed in 1760 and enlarged the scope of the justice courts by giving them civil jurisdiction, something such courts in England did not have. Lawyers immediately made their appearance in Georgia courts. William Grover, the first chief justice of Georgia, graduated from Pembroke College, Oxford. He became a barrister of the InnerTemple, and was called to the bar in 1741 . After coming to Georgia, he was accused of libeling the governor and was removed by a royal order effective in 1763. William Simpson succeeded Grover as chief justice, being appointed in 1766. A native of Scotland, Simpson had formerly been chief justice of South Carolina. He died in office in 1769.
In 1764 the colonial assembly passed an act appointing commissioners to rebuild the provincial court building in Savannah, limiting bids to 600 pounds. In November of 1765 the assembly accepted the bid by Peter Tondee and Joseph Dunlap of 450 pounds, 19 pence, and 6 shillings, to construct the building on the western half of Trust Lot H, Percival Ward. Work progressed slowly, with the builders successfully petitioning for further allowances in 1773. The ultimate cost was 595 pounds.
The courthouse was a "simple edifice" of red brick with walls two and a half feet thick. The interior had one large courtroom upstairs containing bench and bar, the other upstairs room being a judge's office; one of three rooms downstairs was used for the prothonotary's (principal clerk's) office, the second used for the grand jury, and the third for the petit jury. The major rooms had fireplaces. Also located downstairs was a fireproof vault.
The third chief justice of Georgia, Anthony Stokes, arrived in the colony in 1769. Stokes had been admitted as a student of Gray's Inn in 1758, transferred to the Inner Temple, and was called to the bar in 1760. Subsequently, he practiced in the West Indies. Described as "a man of integrity, courage, and ability," Stokes published a pamphlet, "Direction for the Officers of His Majesty's General Court and Session of Oyer and Terminer and General Gaol Delivery of the Province of Georgia, Compiled by the Chief Justice, Savannah, 1771." Upon his return to England he published in 1784, A Narrative of Anthony Stokes of the Inner Temple, London, Barrister At Law; His Majesty's Chief Justice, and one of his Council Of Georgia: and of the Dangers and Distresses He underwent in the Cause of Government.
During the colonial era of Georgia, there were several strong lawyers practicing in Georgia. They included Thomas Burrington, who died in 1767; Samuel Farley, under whom James Jackson studied, became a Tory who commanded a redoubt at the Storm of Savannah, and was exiled to Nassau; William Gibbons, one of the "Sons of Liberty" who became Speaker of the House; the gigantic Thomas Gibbons, another Tory, mayor of Savannah after the war who moved to New Jersey and New York to become a party in the famous Supreme Court case of Gibbons vs. Ogden; John Glen, who was judge of the Eastern Circuit after being Chief Justice of Georgia; William Stephens, who outlived his signing the Loyalty Oath to the Crown to become U.S. District Judge for Georgia; and Robert Hamilton, a Tory who died during the Revolution.
At the outbreak of the Revolution the "Liberty Boys" realized the importance of gaining control of the court system. They were successful in their campaign of encouraging non-attendance by the jury venire. The lack of jurors brought the courts to a halt. As the Liberty Boys wrested control of the colonial government from Governor James Wright, they exercised control over Georgia through the Council of Safety and the Provincial Congress. In 1777 the Revolutionary government of Georgia adopted a new state constitution. This new document abolished the provincial parish system, and created counties in their stead. The constitution also established a court system, but the legislature retained the power of appointing justices of the peace and registers of probat (or probate), and also regulated the admission to practice law and the discipline of lawyers for misconduct. The following courts were established in the new state:
1. The Superior Courts were created in each of the eight counties. These courts held general civil and criminal jurisdiction, with final authority. In civil cases, appeal from a verdict lay in a new trial with a special jury. Each superior court consisted of the Chief Justice of the state, as well as three or more justices residing in the individual county. The first Chief Justice of Georgia was John Glen.
2. The Court of Conscience, apparently the same as the colonial justice of the peace court, was "continued as heretofore practiced, and ... the jurisdiction thereof ... extended to try causes not amounting to more than ten pounds."
3. A Register of Probats was created for each county to prove wills and grant letters of administration.
After the British capture of Savannah in 1778, they used the courthouse as a barracks for soldiers and their families. Upon the evacuation of Savannah by the British in 1782, however, the returning Patriots set out to rebuild the state's legal system. They signaled the end of martial law by replacing the provost for Savannah with the sheriff. Successively, Richard Howley, George Walton, Henry Osborne, and Nathaniel Pendleton presided over the court sessions in Savannah as Chief Justices of Georgia until the circuits were established in 1789.
Upon Osborne's taking the bench, he took a strong lead in returning the area to civil authority by charging the grand jury to investigate the continued use of military court martials of civilians after the Revolution.
Osborne was typical of the aggressive lawyers who came into Savannah at the end of the Revolution. He had abandoned his first wife in Ireland, and had come to Philadelphia as a scrivener. He was admitted to the bar there in 1779. When his first wife made herself known in 1783, Osborne abandoned his second wife and left town "with a considerable sum of public money," moving to remote Camden County, Georgia. He was admitted to the bar in Savannah in 1786. The following year his maneuvering obtained his meteoric appointment as Chief Justice of Georgia. He became the first chief judge of the superior court for the new Eastern Judicial Circuit in October of 1789. Two years later he married a third time. Judge Osborne was successfully impeached shortly after his marriage due to his active involvement in the voting frauds used to elect General "Mad Anthony" Wayne to Congress.
Among the leading Savannah lawyers in the years following the Revolution was James Jackson, hero of the Georgia Legion, loud, tending to hyperbole, a hotheaded duelist, called by an enemy "thou brawling pigmy" due to his diminutive size, financially successful at the bar, and idol of the common people during the Yazoo Frauds. Another successful Savannah lawyer was Jeremiah LaTouche Cuyler, who became the U.S. District Judge. Yet another was James Gunn, courtmartialed during the war for selling a horse out of the service, and a bitter enemy of Nathanael Greene. Gunn was the duelist for whom the "Gunn Line of Succession" in the U.S. Senate for Georgia was named, and was described as a "violent, aggressive, overbearing" man "striding the streets of Augusta arrayed in broad cloth, tan boots and a beaver hat, commending those who favored the (Yazoo) bill and abusing those who opposed it; in his hand a loaded whip, and with this the burly United States Senator actually menaced those members who objected to the scheme."
There being no state supreme court at the time, it had been anticipated that uniformity in the law could be accomplished by having one chief justice, and after 1789 by periodic conventions of chief judges of the several superior courts. On 25 January 1790 Judge George Walton published in the minutes in Savannah his rules of practice for the superior court, the earliest known such rules following the creation of the circuits in 1789. On 9 April1792 in Augusta a convention of judges including George Walton, John Houstoun, Thomas Petters Carnes, and John Young Noel, met to promulgate another set of rules of practice pursuant to the Judiciary Act of that year. These rules were published in the superior courts in Georgia, including that in Chatham County, and were followed for the next four years. On 19 July 1796 a new convention at Louisville, Georgia, the state capital, adopted "Rules for regulating the Proceedings and Practice of the Superior Courts to be held in the Counties of this State." These rules were almost identical to Walton's rules of 1790. A copy of the 1796 rules was spread upon the minutes of the various superior courts, including that for Chatham County. Rule 2 stated, "The Principles of admission of attornies (sic) being a knowledge of the laws and the practice of Courts a liberal examination shall be had in these respects." Rule 3 stated, "For the sake of a decent conformity to ancient customs in the profession, the attornies ought to be heard in a black Robe, especially in criminal cases, but this is not to be insisted on with those who shall not have provided themselves with such habits untill (sic) the second Term." Rule 4 stated, "The Order of pleading shall correspond with that laid down by Judge Blackstone .... "
The wearing of a robe by lawyers in court seems to have lapsed by 1820, however. On 9 March 1821 Judge Thomas U.P. Charlton of the superior court in Savannah issued a "Bar Costume" request, "(he can do no more)," that "the Gentlemen of the Bar .,. provide themselves with the gown or robe which appertained to the profession."
The death penalty by hanging was a solemn sentence. In 1782 Chief Justice Richard Howley sentenced Sampson Hall as follows:
Clergymen only were first excused from the death penalty for their crimes, but later this was extended to clerks or anyone who read and who claimed "the benefit of clergy." Upon a motion in arrest of judgment referred to as "praying his clergy," only a lesser punishment than death could be pronounced. To prevent a second claim in this manner, the culprit was branded.
"On Motion made by the Attorney General the Court proceeded to give judgment, and ordered the prisoner to be carried to the place from whence he came and from thence to the usual place of Execution where he shall be hanged by the neck untill he is dead! dead! dead!"
Robert Farish, who earlier had been a Continental officer, killed a man who had attacked him. Judge Henry Osborne sentenced Farish as follows:
At the August 1792 Term of superior court, Judge John Houstoun went even beyond branding in his sentence of Henry Johnson for manslaughter:
"And it is demanded of the said Robert Farish if he hath or knoweth anything to say wherefore he said judge here ought not upon the premises and verdict aforesaid to proceed to judgment and execution against him, who sayeth he is a clerk and prayeth the Benefit of Clergy; when all and singular the premises being seen and by the said judges understood: It is Considered by the court here that the said Robert Farish be burned in his left hand and delivered, and immediately he is burned in his left hand and delivered according to the form of the statute."
"The prisoner being now brought up, prays the benefit of his clergy which is allowed him, and he is directed to be immediately burnt in the hand according to law. This being done the judgment of the court pursuant to the Act of the Assembly in such case made, is that the said prisoner be hence remanded to gaol, and if he shall at any time within ten days pay to the legal representative of the estate of James Stewart, Sr., the sum of sixty pounds sterling, ... that then he be immediately thereon discharged on payment of his fees. But if the said prisoner shall not within said ten days pay the said sum aforesaid, that then at the expiration of that term, he may be sent to Beards Bluff to continue there, or at any other frontier garrison of this State, for the space of seven years, and to serve as a soldier, and the pay allowed to him as a soldier shall be paid to the legal representative of the estate aforesaid. And the said prisoner pursuant to the said Act is hereby declared altogether incapable of holding any place of trust, or of exercising, enjoying or receiving the profits of any office, place, or employment, civil or military, within this State."
Savannah's Great Fire of 1796 left only the bare walls of the courthouse standing. While court was held for two years at the theatre and the filature, the brick courthouse was repaired. Refitted over the next several years, the courthouse became the domain of an incredible number of lawyers and jurists who shaped Georgia law, such as Thomas Usher Pulaski Charlton and Charles Harris, who drafted the state's, . and nation's, first criminal code from 1811 to 1813. In 1808 the Justices of the Inferior Court added a measure of comfort by replacing the hard benches in the courtroom with twelve Windsor chairs.
It was an early custom of the Superior Court in Savannah that on court days the sheriff, with his cocked hat and drawn sword, would escort the judge from his lodgings to the court. The sword was the public symbol of "the power and justice of the judiciary." "A judge was a judge in those days, and woe to the man who did not show the respect due to him as the embodiment of the majesty of the law." This custom became obsolete in 1859, and was never revived.
The sheriff of the Inferior Court of Chatham County, on the other hand, carried a short, artillery sword. This relic of the Ante-bellum days last hung on the wall of the office of Judge Henry McAlpin, County Ordinary, as late as 1907.
Another court custom existed from the earliest history in Savannah, "when the mind of mankind remembereth not to the contrary." It was the custom of having witnesses and jurors kiss the Holy Bible when the oath was administered. Until 191 0 there was a badly worn Bible nailed to the witness box in the Superior Court in Savannah. Witnesses who had not previously been sworn frequently laid their hands on this book while the clerk administered the oath. This was only done in serious cases. The touching of the book seemed to give a sort of solemnity to the oath which a mere repetition of the words did not carry.
Jabez Bowen, Jr. moved to Savannah after the war and practiced law there. He married and appeared to settle down as a respectable member of Savannah society. In 1802 he became judge of the Eastern Judicial Circuit. Forgetting that much of the wealth of his home state of Rhode Island came from the slave trade, however, Judge Bowen charged the Chatham County grand jury in April of 1804 to return a presentment against the institution of slavery. The grand jury refused to return this presentment, so Judge Bowen drew a pistol from his pocket and threatened to shoot them. After shouting at the jury with "the most violent and indecent language," he had them arrested. In response to a resolution of both houses of the legislature, Governor John Milledge removed Judge Bowen from the bench. Bowen's father came to Georgia and posted his bond to keep the peace. The former Savannah judge returned to Rhode Island, where he soon died.
During this time a Frenchman was indicted in Savannah for a felony. He was tried by a jury of six Americans and six Frenchmen, after an old law which held that he was entitled to a trial by jury de medietate linguae.
An example of the legal writs issued at the time is that of a warrant of Hue and Cry. Addressed to the sheriff and all officers, and "in the name of the State commands you and everyone of you forthwith to raise the power of your precincts, and to make diligent search therein for the persons above mentioned, and also the property, and to make Fresh pursuit and Hue and Cry after them, from town to town and from Country to Country, as well by horsemen as by footmen, and to give due notice hereof in writing, describing in such notice the person and the offense aforesaid unto every next constable on every side until they shall come to the Sea Shore, or until the said malefactors and felons are apprehended and ... that you do carry them forthwith before some of the Justices of the Peace in and for the county where he or they shall be apprehended, to be by such Justice examined and further dealt withal according to law. Hereof fail not Respectively upon the peril that shall insure thereon."
In his Georgia Scenes Judge A.B. Longstreet memorialized Edmund Bacon, an eminent lawyer of Savannah in 1808, as "Ned Brace," who "demonstrated" the pretentious people "who knew me well in the country and forgot me in town." Of "Ned's" uncommon propensity to humble "the pedant, the purse-proud, the over-fastidious and sensitive," Longstreet stated that "Ned" generally conducted his games "in such a way to render it impossible for anyone to call him to account without violating all the rules of decency, politeness, and chivalry at once." Ned's escapades in Savannah while he practiced her~ became legendary, such as the time his attempts at hymn-singing nearly broke up the services at a local church. His happy adventures reflected well on the early lawyers of the area.
In February of 1815, while the War of 1812 was winding down, a soldier stationed at Causton's Bluff near Savannah was tricked aboard the U.S. Epervier, a warship in the harbor. He escaped by jumping into the river and swimming ashore. The captain had him arrested for desertion and placed in the gaol (jail). In the ensuing hearing on a writ of habeas corpus, the soldier was represented by Joseph S. Pelot. Judge John Macpherson Berrien presided. The soldier obtained a witness who for a fee claimed to know that the soldier was underage at the time, and therefore could not have enlisted in the ship's crew. To the growing amusement of the court, the so-called witness "answered the pertinent questions promptly, and to the purpose." The judge remarked that the man certainly had a fine memory for such detail.
The witness replied, "Aye! May it please yer Honor, he may look all over old Ireland and Amaraky too, but he'll never find the lad that will say black is my eye."
Captain Downs of the Epervier looked at the witness a moment and observed, "No, nor never can I, or anyone else, find a man that is a better master of his trade than yourself." The witness responded, "Aye! Captain, you are right! There's not a man that lives can bate me a'ditching, age and inch me." Judge Berrien released the prisoner, and Captain Downs returned empty-handed to his ship. He and his ill-fated vessel disappeared at sea, and were never heard from again. The soldier, Thomas Simpson Woodward, became a famous Indian scout and general in the military.
Since 1760, the control of and responsibility for the gaol or jail in Savannah had been argued. Pursuant to an act of the legislature passed in 1788, Judge Henry Osborne of the Chatham County Superior Court appointed three Commissioners of the Gaol and Courthouse in Chatham County. The gaol fell into ruin, prisoners escaped wholesale, and the gaoler continued to complain that he was not being paid for feeding the prisoners. In January of 1791 the grand jury's first presentment was regarding the "ruinous condition of the County Gaol," and its second presentment was the recommendation that the Court House be put under the direction of the City Corporation. Judge Osborne therefore took it upon himself to settle the growing controversy as to whether the newly incorporated city of Savannah was responsible for the gaol, or whether the Justices of the Inferior Court for Chatham County were. Osborne simply issued an ex parte order on 14 June 1791 vesting control of the jail in the Mayor and Aldermen of the City of Savannah. However, by an act passed on 21 February 1796, the Justices of Inferior Court were required and empowered to lay and levy a tax for building and keeping in repair the courthouses and jails in the state. In 1823 the Chatham Superior Court ruled that the city must surrender the jail to the sheriff. An 1834 statute returning the jail to the city was upheld in the Chatham County Superior Court in 1835. The jail was returned to the county in 1881 by an act of the legislature.
In 1976 the question of the control of the jail arose again when the City of Savannah and Chatham County contracted with one another for housing and feeding their prisoners. Sheriff Carl Griffin refused to accept some of the city prisoners in his jail, stating that he had insufficient personnel and that as an elected official he could refuse them. Chatham County filed a mandamus against the sheriff and the case eventually landed in the state supreme court, which affirmed the superior court's order to accept the prisoners.
There being no organized court of appeal in Georgia at the time, Savannah gentlemen too often relied upon the Code Duello as a means of redress in affairs of honor. An act forbidding dueling or challenging to a duel had been enacted by Georgia in 1809. However, the state had no jurisdiction over federal property, such as the Customs House on the Bay or Martello Tower overlooking Tybee Roads. Consequently, by usage and common consent, the basement of the Customs House was the place for posting all denunciatory and derogatory statements regarding the character of one's enemy.
The gentleman posting another had to take his stand by what he had posted and maintain it against all comers. If another gentleman attempted to tear down the card, he did so at his peril, for he who had posted it was standing by with cane or cowhide. The use of either was sure to follow, resulting later in a visit to the shade of Martello Tower or across the river at the Union Ferry for coffee and pistols at dawn.
Since there was no federal law at the time against assault and battery or dueling, would-be duelists in Savannah avoided legal entanglements by challenging and killing each other on federal property.
For Savannah the year 1796 was singularly important for the visitation there of fire which destroyed a major portion of the city. The resulting devastation changed the lifestyle of the small port city for many years. Practically unnoticed, another, more important event in the life of Savannah took place that same year. It was the formal creation of a mayor's court as a court of record for Savannah.
On 13 February 1796 the Georgia Legislature enacted a bill establishing what was to be known as The Mayor's Court of Savannah. Among the causes over which this new court had jurisdiction were certain civil cases involving suits not exceeding fifty dollars, cases of seamen for non-payment of wages, and committal hearings in criminal cases. Although the jurisdiction of the Mayor's Court was subsequently altered from time to time, it remained a court for small civil claims and limited criminal jurisdiction arising within the city limits of Savannah. The mayor became the chief magistrate of the court, with the aldermen being the associate justices.
Ante-Bellum Savannah: 1816-1860
With the end of the War of 1812, Savannah slowly slipped into financial trouble, as did the rest of the country. As is often the case, the fairly rapid downslide in the economy caused a reciprocal upswing in the activity of the legal community. America's first state criminal code, the work on which actually began in 1811, was enacted in Georgia in 1816 along with the establishment of a state penitentiary system tied to it. As the economy worsened, attempts to grapple with its effects increased.
One bill passed by the legislature in 1819 sought to ameliorate the imprisonment of debtors in Savannah, a city founded especially to avoid such an evil as incarceration of those who were unable to pay their bills. This 1819 act allowed such debtors out of the common gaol, but within a specified boundary in order that they might remain with their families and continue working to repay their creditors. Today, a casual tourist in Savannah would hardly recognize the small, stone markers inscribed "G.B.," an abbreviation for "Gaol Bounds," as representing a significant phase in the development of Georgia jurisprudence.
Another act passed in 1819 had specific reference to the unique nature of Savannah and its crime. As James M. Wayne was to explain, there were two specific criminal problems in Savannah which needed to be addressed. First, the superior court system was too slow in handling criminal offenses, particulary the lesser ones. It had only two terms each year for the trial of criminal offenses. Every lawyer at the Savannah bar could give instances of the confinement of prisoners for many months while awaiting trial for petty offenses. Worse, there were a number of material witnesses who suffered the same imprisonment while awaiting the trial of accused criminals. In short, there was a growing need for an inferior tribunal which could dispose of the lesser criminal cases in an expeditious manner. Second, the "unique condition of our city, considered in reference to its police," said Wayne, restricted the punitive ability of the local courts to small, often inadequate, fines. No local court had the authority to inflict alternative punishment on people convicted of petty crimes. As though to sweeten the reasons for the enactment of this law, Wayne added that the establishment of a Savannah court to handle such a caseload would lessen the expenses of the city corporation by some two thousand dollars annually for the support of prisoners, offenders, and witnesses.
In short, this act created a new court at Savannah designated the Court of Common Pleas and Oyer and Terminer for the City of Savannah. The new court superceded the earlier Mayor's Court of Savannah in that civil and criminal jurisdiction was taken from the Mayor's Court, expanded, and given to its successor, the new Court of Common Pleas and Oyer and Terminer.
This new court commenced as a court of justice in October of 1820. As a matter of effective transition and legal courtesy, the presiding magistrate of the old Mayor's Court would be the first magistrate of the new Court of Common Pleas until his term expired. Consequently, Savannah's mayor James M. Wayne became the first judge of the court. Thereafter the judge was chosen specifically for the court.
In 1811 the Justices of the Inferior Court decided to build a fireproof addition to the courthouse on the eastern half of the trust lot. Job T. Bolles, clerk of court, rented this addition as his own house, paying annual rent. Bolles' house was so situated as to give the appearance of one courthouse divided into two parts, clerk's dwelling and courtroom and offices. With the economy falling into "the demnition bow-wows," Bolles decided in 1823 to become the "savior of Chatham County" by issuing out of the courthouse his "Job T. Bollesl Change Bills" due to the shortage of currency. The grand jury indicted him in 1824 for his trouble. The justices of the Inferior Court of Chatham County proposed construction of a new courthouse on 5 January 1829. Advertisement for bids on design were ordered in early 1830, and the premium of $100 for the best plans was awarded to Russell, Warren, Tallman & Bucklin, of Providence, Rhode Island, in May of that year. The building contract was awarded to Henry McAlpin and Edward Jones on 29 September 1830. The final demolition of this courthouse and clerk's house began in 1830, and the structure was reduced to "a high pile of bricks" early the following year. Construction of the new Greek Revival courthouse followed soon after the demolition of the red brick structure. While the work was underway, court was held at the City Exchange. The first session of superior court at the elegant new building was held on 21 May 1832, presided over by Judge William Law and Sheriff George Millen. This building covered all of Trust Lot H, Percival Ward. It had four fronts, each having a portico with four fluted, Doric columns. It was of brick covered with hard plaster on the outside and "every necessary convenience in the interior." It had two stories, the lower one being at street level, and had a tiled roof. There were two courtrooms, one at each end with fireplaces. This was in order to accommodate both the local courts as well as the federal circuit and district courts with their respective clerks and marshal. Of course, the courtrooms were supplied with sufficient spittoons.
The Greek Revival courthouse was in use until 1889, when it was demolished to make way for yet a later court building.
The leading lawyers of the Savannah bar during these years included James Moore Wayne, destined to become a justice of the U.S. Supreme Court; John Macpherson Berrien, the U.S. Attorney General known as "The American Cicero"; Nathaniel P. Bond; Mordecai Myers, a co-founder of Georgia Military Institute at Marietta; William Bellinger Bulloch, Attorney General of Georgia; Alfred Cuthbert and his brother John Alexander Cuthbert; William Davies; Levi Sheftall DeLyon; William Washington Gordon, a West Pointer who became the first president of the Central of Georgia Railroad; Matthew Hall McAllister, who ultimately moved to California; and Richard Wylly Habersham, who resigned as U.S. District Attorney in 1827 due to the imminent collision between the administrations of President Adams and Governor Troup.
When the state was divided up into judicial circuits in 1789, the Eastern Circuit contained the counties of Burke south to that of Camden. County after county, except Chatham, Bryan, and Mcintosh, were taken out and placed into other circuits. Finally in 1899 Bryan and Mcintosh Counties were taken out of the Eastern Circuit, leaving only Chatham. As the early roads and bridges were bad or non-existent, travelling the early circuit was a strenuous affair.
Generally, the judge, lawyers, litigants, and witnesses often travelled together from court town to court town, staying together in public houses or taverns. The clerk of court packed the necessary court records and papers onto a wagon, and off they went. Of course, there was considerable conviviality, and cardplaying, drinking, and swapping stories was the order of the day. On one occasion, there was so much conviviality that the prisoners were able to escape before they could be tried, the court officers and lawyers all having fallen asleep.
Travelling the circuit could also be dangerous. Judge George Walton, himself, was attacked and beaten by highwaymen on his way to court. On another occasion, a stagecoach full of lawyers went into the Ogeechee River when the bridge collapsed.
The most successful lawyers were the bold ones. The following story was told of Joseph Webber Jackson, a lawyer son of General James Jackson. Joe was attending court on the circuit, and arrived one evening at a tavern in a rural courthouse village. Passing through a crowd of people before the door, he entered the sitting room. Here one man was seated before the fire, sprawled out on several chairs, with his hat cocked on one side, chewing tobacco and spitting right and left around him, while the landlord stood behind the bar with his hands in his pockets and a most disconsolate look upon his face. Taking his seat with his back to the wall, Joe Jackson took out a paper and began to read, first calling to the landlord for a glass of brandy.
Seeing the drink placed in front of Joe, the man by the fire got up, threw his tobacco quid into the fireplace and deliberately walked to Joe's table. There he took Joe's drink and saying, "Stranger, your good health," drank the contents and wiped his mouth. He then walked back to his seat by the fire, cut a quid from his tobacco and recommenced chewing.
Joe Jackson quietly called for another glass. When it was placed on the table the scene was enacted as before, but with a different conclusion. As the bully said, "Stranger, your good health," and reached out to take the glass, Joe slammed his dirk through the man's hand, pinning it firmly to the table. Rising and bowing politely, Joe said, "Stranger, your good health," drank the brandy, drew the dirk from the bully's transfixed hand, returned it to its sheath, and sitting down quietly, resumed his reading.
As he ran out the door the wounded man was stopped by the witnesses who asked him what he was going to do. He replied as he rushed out, "I'm a gwine to let that 'ere feller alone!"
The lawyers of that day wore no robes. Instead, they wore black coats and trousers, boots, and stovepipe hats. Their vests were topped by a white shirt with a straight or rolled collar secured at the throat by a stock. "Their sharp mode of law practice consisted of fighting under the black flag, neither giving nor asking quarter."
Tom Sims (or Simms) was a bricklayer's apprentice on James Potter's plantation, Colerain, on the Savannah River. In 1851 he slipped aboard a ship bound for Boston. When he reached that port, he attempted to pass himself off as a Spaniard after having been caught in the act of burglary. Upon examination, his true identity became known. After Sims' capture, James Potter had Robert Milledge Charlton, the former judge of superior court and mayor of Savannah, prepare for him a special power of attorney to Mordecai S. DeLyon and John B. Bacon authorizing and directing them to proceed to Boston and obtain the return of Sims to Savannah. The ensuing habeas corpus hearing in Boston turned on the authenticity of Charlton's power of attorney and the carefully-worded authorization it contained. Seth J. Thomas, the Massachusetts lawyer representing DeLyon and Bacon, obtained the dismissal of Sims' action. Despite the formation of an immense mob to stop them, DeLyon and Bacon successfully brought Sims back to Savannah. He became one of the few fugitive slaves returned to the South pursuant to the Fugitive Slave Act. After the war he worked for the government in Washington, D.C. Tom Sims' brother James M. Simms became the first black judge in Georgia in 1870. James Potter, the owner of Colerain Plantation, died during the war and was buried in New Jersey, his residence.
From time to time the state legislature changed the jurisdiction of the Court of Common Pleas. In 1853 the legislature changed the name of the Court of Common Pleas and Oyer and Terminer of the City of Savannah to that of the City Court of Savannah. Minor changes of the structure and jurisdiction of the City Court continued until 1881, when the jurisdictional limits of the City Court of Savannah were significantly expanded so as to embrace Chatham County. Despite this, in 1899 the Georgia Supreme Court ruled that the City Court of Savannah was a "city controlled" court rather than a "county controlled" court.
The rapid growth in popularity and usage of the City Court led to yet another name change, one finally recognizing its county-wide jurisdiction. In 1970 there was enacted an amendment to Article VI, Section II, Paragraphs IV and VIII, Constitution of the State of Georgia. This act changed the name of the City Court of Savannah to the State Court of Chatham County.
The State Court of Chatham County is not only the oldest small claims court in Georgia, but remains unique among such tribunals in the state. The State Court remains one of the most popular of Chatham County's courts.
In 1807 the U.S. Congress passed an act which effectively ended the importation of slaves into the country. Pursuant to the Non-lmportation Act of Congress of 15 May 1820, moreover, Congress declared the African slave trade to be piracy, punishable by death. Consequently, when the yacht Wanderer was taken off of Jekyl lsland in 1858, and it was discovered that she was a slaver, the identification of those involved set off a furor in Georgia. Not only did it involve Charles A.L. Lamar of Savannah, but several New Yorkers, one of whom was later a general in the Union Army.
The Wanderer was one of five such vessels fitted out for the slave trade over a period of eighteen months. This fleet was financed with northern capital, built in New England docks, and cleared from northern ports, principally Massachusetts and Rhode Island. The head of the revolting business was a New Yorker named Corrie.
Several investors had purchased the Wanderer from Corrie. All were northern men except Charles Augustus Lafayette Lamar of Savannah, a gentleman of high standing and belonging to one of the most influential families in Georgia. As a boy "Charley" Lamar had survived the sinking of the steamship Pulaski, and he became renowned for his wealth and audacity.
The Wanderer sailed from New England to the coast of Africa. There, it loaded a cargo of slaves, eluded the warships stationed on that coast to intercept all shipping engaged in this trade, and returned to the coast of Georgia. "Each mile of that terrible journey, made by night-or by day, was marked by a human milestone." Having crossed the stormy Atlantic, the slaver anchored in the placid waters of St. Andrew's Bay, close to Jekyl Island. John du Bignon, the proprietor of the island, allowed the slaves to be landed there, soon to be scattered throughout the state.
News of the landing spread quickly, and the federal authorities in Savannah promptly took active steps to vindicate the law and punish its violators. They seized the Wanderer, libelled and condemned it, and advertised it for sale by the U.S. Marshal in front of the Customs House in Savannah.
All of the crew except for the Captain, J. Egbert Farnham of New York, were taken into custody. However, Henry Rootes Jackson, who had just returned as U.S. Minister to Austria, and Julian Peyton, a trusted official, went to New York to arrest Farnham, who had returned to his "extravagant living" at the leading barrooms and clubs of the metropolis. Despite a scheme within the New York marshal's office to help Farnham escape, Jackson and Peyton brought him back to Savannah to face trial. With the stakes so high, Lamar organized a mob which broke Farnham back out of the jail. The authorities found the whole group of men celebrating the event in their fashionable quarters in the nearby Pulaski House. Those who led the mob to break him out of jail were also indicted by the federal grand jury.
At the November 1859 Term of the U.S. Circuit Court for the District of Georgia, three of the crew of the Wanderer were brought to trial, Nicholas A. Brown, Michael Acguira, and Juan B. Rajesta. Justice James M. Wayne of the Supreme Court of the United States delivered an exhaustive charge to the grand jury, which indicted them for "piracy" committed in bringing into the United States slaves from the coast of Africa. The penalty was death.
Justice Wayne presided over the ensuing trial, associated with John C. Nicoll, judge of the U.S. District Court for the District of Georgia. Justice Wayne was a relative of Captain C.A.L. Lamar, and Judge Nicoll was Lamar's father-in-law. Doctor Joseph Ganahl was the U.S. District Attorney for the district and the prosecuting officer for the government. Judge Jerry Black, Attorney General of the United States, specially retained Henry Rootes Jackson to assist in the prosecution of the accused as Ganahl's associate.
Lloyd & Owens, a law firm composed of Thomas E. Lloyd and John W. Owens, were the lawyers for the defense. Lloyd was then one of the best lawyers in the state. His knowledge of the Common Law was comprehensive and profound, and for the purposes of this defense he had mastered the intricacies of criminal law. He was regarded by his peers as the leader of the Savannah bar.
Owens was by a long shot the most able criminal lawyer at the Savannah bar. He had few equals and no superiors in this branch of the law in the state. He "was tall and slender, graceful in action, his face was clean shaven and presented a profile of Grecian mold, refined and classic." His enunciation was clear and distinct with one pecularity: he addressed the court as the "cort" and called the clerk the "clark." He possessed "fine descriptive powers and upon him rested the burden of the defense in open court."
District Attorney Ganahl was of "phlegmatic temperament in striking contrast with the nervous energy of his associate. He was deliberate in speech and action, and seemed to treat with cool contempt, if not resentment, the sympathy for the prisoners which was apparent in many of the spectators crowding the courtroom."
Henry Rootes Jackson was a lawyer of distinguished ability, "gifted with oratorical powers of a high order and strong and effective in argument." "He entered into the prosecution with all the ardor of his impulsive nature."
The prosecution was seriously hampered by the protection the rule against self-incrimination afforded their most important witnesses. The fact was established, however, that the Wanderer did land a cargo of African slaves from some foreign country on Jekyl Island, but whether the prisoners on trial were guilty participants in the violation of the law was not so clearly established. At the close of the prosecution's case, the defense submitted no evidence. Justice Wayne delivered a long and carefully considered charge to the jury, and the fate of the prisoners was left in their hands. The jury retired to another room in the Customs House, and quickly returned a verdict of acquittal for all three defendants. In May of 1860 the next accused in the crime, Nelson C. Trowbridge, was brought to trial, but that trial ended with a hung jury. Justice Wayne declared a mistrial. Next, Captain J. Egbert Farnham went to trial. Hamilton Couper, the new District Attorney, replaced Ganahl. Raphael J. Moses and S. Yates Levy represented this New York defendant. This case also ended in a mistrial. Subsequently, several members of the mob which had sprung Farnham from jail were brought to trial, and each pleaded guilty.Trowbridge and Farnham returned to New York, where Farnham, "who had dealt in human slaves and stained the waters of the ocean with their blood," became a brigadier general in the Union Army. After the war he became Collector of Customs for the Port of New York, dying in that lucrative office in 1870. Captain Lamar organized his own cavalry troop during the ensuing war. At the last battle fought in Georgia, that at the bridge at Columbus, then-Colonel Lamar was in the act of surrendering when he was shot dead by a federal cavalryman.
Confederate Savannah: 1861-1864
Francis Stebbins Bartow was born in 1816, and married a daughter of John Macpherson Berrien. By 1860 Bartow was one of the leading lawyers at the Savannah bar. He also commanded the Oglethorpe Light Infantry, a company in the local militia regiment. As the secession debate loomed, Bartow spoke for many in the state:
"I am tired of this endless controversy. I am wearied with seeing this threatening cloud forever above our heads. If the storm is to come and it seems to me as though it must, be its fury ever so great, I court it now in the day of my vigor and strength.
"If any man is to peril life, fortune and honor in defense of our rights I claim to be one of those men. Let it come now, I am ready for it. Put it not off until tomorrow or next day. We shall not be stronger by waiting.
"I do not wish to destroy this government. I am a union man in every fiber of my heart. I have gloried in its mission of humanity, in its heroic truth and youthful struggle and in the grandeur of its maturity. God never launched a nation on a more magnificent career. It has been the home of the oppressed and the asylum of the desolate from every land. In it today are wrapped the hopes of universal man. But I will peril all - ALL, before I will abandon our rights in the union, or submit to be governed by an unprincipled majority."
And so they went to war. "I go to illustrate Georgia," he angrily replied to Governor Joseph E. Brown, who attempted to stop Captain Bartow and his Oglethorpe Light Infantry from taking their weapons to Virginia. Upon reaching Virginia, Bartow was elected colonel of the newly-formed 8th Georgia. In short order he was promoted to brigadier general. He was killed at First Manassas leading his command, and his funeral was one of the most emotional ever held in Savannah.
The Confederate States Court for the District of Georgia began operation in Savannah on Monday, 3 June 1861, with Judge Henry R. Jackson presiding. Judge Jackson issued the following orders:
"Ordered, That the practice as now established in the Superior Courts of the State of Georgia, in common law and equity causes, be and the same are hereby adopted as the practice of the District Court of the Confederate States of America for the District of Georgia, and that all the rules of the said Superior Courts of the State of Georgia, both at common law and equity, so far as the same are not repugnant to the Constitution and laws of the Confederate States of America, or hereby altered and amended, are adopted as the rules of practice for the said District Court of the Confederate States of America for the District of Georgia, with the exception that all Attorneys, Counsellors, Solicitors and Proctors, who have heretofore been admitted to plead and practice in the Courts of the late United States for the District of Georgia, may be admitted to plead and practice in the Court upon their taking and subscribing the following oath or affirmation:
"CONFEDERATE STATES OFAMERICA, District of Georgia.--I, __________, do solemnly swear (or affirm, as the case may be,) that I will justly and uprightly demean myself, according to law, as an attorney, counsellor and proctor in the District Court of the Confederate States of America, in the District of Georgia, and that I will support the Constitution of the Confederate States of America, so held me, God.
"Subscribed and sworn to in open Court, this __ day of ____ A.D. 1861.
"Ordered that all attorneys and counsellors who have heretofore been admitted to plead and practice in the Superior Courts of the State of Georgia, and who have practiced therein for the period of three years, and are of unexceptionable character, may be admitted to plead and practice in the Court, upon taking and subscribing the oath above presented."
The trial of the Wanderer
crewmen ended just before the outbreak of the war with the acquittal of some defendants and mistrials on others. However, there was still a Wanderer
matter unresolved. Captain David S. Martin, of Bath, Maine, had been indicted by the federal grand jury for stealing the Wanderer
Upon Georgia's secession, it enacted an ordinance by the Convention of 29 January 1861 by which all cases, civil and criminal, then pending in the U.S. Circuit Courts in and for Georgia were transferred to the District Courts of the State of Georgia. However, these latter courts were not organized. Instead, by act of the Confederate Congress approved 16 March 1861 the Confederate District Courts took jurisdiction of cases then pending in the District Courts of the United States and of the several states, including Georgia.
Thus, the newly organized Confederate District Court in Savannah found among its first duties the amazing task of prosecuting Captain Martin on the federal indictment. In November of 1861 John C. Nicoll, Confederate District Attorney, obtained the conviction of Captain Martin before Judge Edward J. Harden. William Law represented Captain Martin and unsuccessfully argued his motion for a new trial in January of 1862. Martin was sentenced to serve five years in the pentitentiary. He tried to escape in 1864, but was held firmly in the penitentiary until the Confederacy collapsed.
Seventy Savannah lawyers who were admitted to the bar before or after the war are known to have served in the Confederate military forces. This number included six generals: Avery, Bartow, Harrison, Jackson, Lawton, and Wilson; thirteen colonels and lieutenant colonels: Basinger, Black, Cuyler, G.A. Gordon, Jones, Millen, Rockwell, Seymour, Stiles, Twiggs, White, Wilson, and Wylly; five majors: Ford, Levy, McIntosh, Screven, and Smith; eighteen captains: Bilbo, Chisholm, Clark, Couper, Garrard, W.W. Gordon, Grant,Guerard, E.R. Harden, King, Marsh, Mercer, Norwood, Paine, Patterson, Russell, Stewart, and Tompkins; fourteen lieutenants: Anderson, Burroughs, Cass, Cunningham, Elliott, Falligant, Hartridge, W.F. Law, Lester, Parkman, Richards, Sapp, Tupper, and Williams; one chaplain: J.C. Stiles; and one surgeon: Ganahl.
In addition, other Savannah lawyers supported the Confederacy in non-military ways. Even two Savannah lawyers who had been opposed to secession served the Confederate cause: John C. Nicoll was District Attorney for the Confederate States District Court for the Southern District of Georgia; and John Elliott Ward, whose portrait appeared on the Confederate ten dollar bill issued on 2 September 1861, served the Confederacy on business in England.
Occupation and Reconstruction: 1865-1872
In 1861 a favorite motto of the Secesslonists was taken from Bozzarius' call for Greek independence: "For Our Altars and Firesides." Numerous Confederate regimental and company flags carried this patriotic inscription. Horace Greeley, of "Go West, young man" fame, spoke for all of his fellow Radicals in twisting the Secessionist motto: "When the Rebellious Traitors are overwhelmed in the field, and scattered like leaves before an angry wind, it must not be to return to peaceful and contented homes. They must find poverty at their firesides, and see privation in the rags of (their) children."
The occupation army quickly set up district provost courts to enforce martial law. One of their first
acts was to arrest and punish the leading Rebels, such as Edward Jenkins Harden, who had been judge of the Confederate States District Court at Savannah, and Brigadier General Hugh Weedon Mercer.
Mercer's case began with William Feay Shellman, who had lost an arm at Cold Harbor. While recovering at Savannah, he was commissioned major commanding a battalion of home guards. It was known as the "Foreign Battalion," since it was composed of "galvanized yankees," federal prisoners who volunteered for Confederate service in order to get out of prison. This they did by swearing fealty to the Confederate States of America.
The time came when Sherman's invading army besieged the Confederate lines around Savannah. Sensing a chance to escape, a number of soldiers of the Foreign Battalion deserted their post and fled to the federal lines, where they told their story. Thirteen of Shellman's men, however, were caught in this act of desertion by other Confederate troops.
Having taken the oath of loyalty to the Confederacy, these deserters were brought before Brigadier General Mercer, local commander of the Confederate forces. He ordered them court-martialled for desertion in the face of the enemy. They were duly tried, found guilty, and executed.
At the end of the war the commander of the occupation forces charged that Mercer was responsible for the deaths of the "galvanized yankees." In consequence, Mercer was himself put on trial for his life. There was one problem. No-one could find the bodies of the "murdered" soldiers. After a lengthy trial, Mercer was necessarily found "not guilty." In 1908, however, workmen clearing a field just west of Savannah dug up a number of bodies there, identifiable as Confederates by the gold braid on their gray jackets. It was soon realized that these were the remains of Major Shellman's "galvanized yankees." Had they been found earlier, history might have taken a different turn.
There was a great shortage of lawyers, judges, and other court officers in the South at the war's end, due not only to the casualties of war, but to the disenfranchisement of many survivors for having been in Confederate service. In Georgia numerous men were put on the bench who had no training in the law. At one court in which one of these new judges presided, two lawyers who were trying a case before him decided to have some fun with him. After the evidence had been taken, one of the lawyers arose and said: "Your Honor, both sides are willing to let the case go to the jury without argument and on a statement of the law and the facts by yourself."
The judge rose slowly and faced the jury. "Gentlemen," he said, "you have heard the evidence and what these lawyers have said. If you believe what the lawyer for the defendant has said you must decide for him ... lf you believe what the lawyer for the plaintiff has said you must decide for him. But if you are like me and don't believe what either one of them has said, I am hanged if I know what you should do."
During the war the United States Congress enacted a law which required, in effect, that before southern lawyers could resume practice in the federal courts or be admitted to practice therein, they must swear to a "Test Oath." In 1866 Judge William Law refused to take this test oath, having practiced in the federal courts for forty-nine years. He argued that at the end of the war he had taken the oath of allegiance to the Union under President Johnson's amnesty proclamation, that this carried a full pardon with it, and that the test oath was an illegal, ex post facto law.
Henry S. Fitch, a former federal officer during the war, was the U.S. District Attorney at Savannah. He vigorously opposed Judge Law's motion to be permitted to continue his practice in the U.S. courts. Judge John Erskine ruled that the Test Oath Act was repugnant to the U.S. Constitution, and ordered Judge Law re-admitted to his practice.
The 1868 Constitution of Georgia was ratified in April of that year. Section 5126 of this new Constitution abolished the Inferior Court system. By means of Sections 5100 and 5101, the Court of Ordinary was vested with probate powers and other authority. In addition, Section 5126 authorized the creation of boards of county commissioners. The county commission for Chatham County, however, was not created until 1873.
Young lawyers of postwar Savannah met great hardships in starting out their practice. Their hardships became "proverbial." At a called meeting of the Savannah bar on Saturday afternoon, 18 April 1868, the lawyers of the Eastern Circuit passed a resolution remarkable for its historical allusion. It stated that "many years ago, for reasons then good, but which do not now exist," the members of the Savannah bar voluntarily assigned the performance of much of the labor of the clerks in all of the courts in the Eastern Judicial Circuit to the youngest members of the bar. The resolution concluded that the members of the bar would no longer perform that labor.
The question of debts contracted during the war quickly arose at its end. One result was the series of "Bank Cases" litigated in the U.S. Circuit Court for the Southern District of Georgia. At the April Term of 1869 for that court, the first case in the series, G.W. Hatch vs.' William H. Burroughs, came up for argument on demurrer to the plaintiff's declaration, pleading that the bills sued for had been issued in aid of the rebellion. William Dougherty and Amherst W. Stone represented the plaintiff, and William S. Basinger, William Law, John Macpherson Berrien Lovell, and Robert Falligant, represented the defendant. During this hearing some wag of the bar wrote the following:
"When Dougherty came into court with his bills,
The court said: 'How now! William Dougherty?
The banks when they issued them, out of their tills,
While fighting the U.S. authority.
Bill Burroughs comes in and says 'Nil deb,'
and so we say, too, Mr. Dougherty.
You admit by demurrer each bill was a 'Reb,'
So Burroughs was right, William Dougherty.
The bar of Savannah are more than your match,
On Burroughs' eggs-ample you can never Hatch."
The court held that Hatch's bank bills had been issued in assistance of the rebellion and were void. He was ruled not to have been a bona fide purchaser for value.
In 1870 the State Legislature enacted the District Court Act, which created a new court system in most of the congressional districts of Georgia. The minimum qualifications for judges of the new court were that they be at least thirty years of age and residents of their districts for at least one year. They did not need any legal training or education. In 1871 Governor Bullock announced that he had appointed James Merriles Simms as the judge of the new District Court for the First Senatorial District of Georgia. Simms, a nonlawyer, thus became the first black judge in Georgia's history.
James ("Fiddlin' Jim") Merriles Simms was born as a slave belonging to James Potter, who owned a large plantation on the Savannah River. James was the brother of Tom Sims, returned as a fugitive slave.
The reaction to this news by the Savannah bar was quick and predictable. At a meeting held on 21 January with Judge William B. Fleming in the chair and A. Pratt Adams acting as secretary, the lawyers decided to form a committee to report on the situation. Their resulting report opposed the appointment of Simms and the other members of the courts on the grounds that the state senate had not yet acted favorably on the governor's appointments. Simms responded that should the members of the bar of Chatham County refuse to recognize his court, he would forward his commission to General Alfred Terry of the federal army for endorsement.
The first session of the District Court for the First Senatorial District was held on 7 March 1871 in the grand jury room of the Savannah courthouse. After waiting futilely for the lawyers to appear, a bailiff appeared. After giving two loud thumps on the floor with his staff, he "cried to the crowd: '0, Yea! 0, Yea! The Honorable District Court for the First Senatorial District is now open. All persons interested will now come forward. God help this court!'" No one appeared. Judge Simms ordered his clerk to make a record of the fact that he adopted for proceedings in the court the rules of the superior courts of the state. He then adjourned.
The District Court for the First District continued to exist as late as August of that year. However, the desuetude of the court resulted in Simms' appointment as a federal inspector of customs in Savannah in November of 1871.
The Court of Ordinary was created for Chatham County in 1868 for the probate of wills, administration of estates, lunacies, guardianships, and issuance of marriage licenses and pistol permits. The name of this court was changed to that of Probate Court of Chatham County by operation of the 1976 Constitution of Georgia.
The Chatham County Board of Commissioners was created in 1873 for the administration of the
courthouse, jail, and other county property; roads and bridges; and poor funds. The County Commissioners were designated as Ex-officio Judges of the Board, which until recent years had quasi-judicial functions as a court for the establishment of police and health ordinances and the enforcement thereof. Over the years, additional functions and duties were added to the County Commission, such as engineering, inspections and licensing, parks and recreation, purchases and finance.
Due to a murder at Shipyard Creek in 1912, the Chatham County Police Department was organized in September of that year, with police authority over the county, but by gentlemen's agreement generally exercised only in the unincorporated portions of the county.
In 1889, the Greek Revival courthouse having been demolished, William Gibbons Preston, a Boston architect, designed a new county courthouse to replace it. His design was of yellow brick, and included his personal design features, terra cotta and arched entrances. He designed the tower on the building to represent a sixteenth century tower.
Black lawyers made their appearance in Georgia after reconstruction, the earliest being John Francis Quarles, admitted to the practice in this state in 1873. Other black lawyers, such as Emanuel Molyneaux Hewlett of Washington, D.C., also practiced in Georgia's courts.
John H. Kinckle was born in Virginia, and was admitted to the bar in that state in 1886. He moved to Savannah, and in 1891 petitioned to be admitted to the practice of law in Georgia. After an examination
before Peter W. Meldrim and others he was admitted to the bar by Judge Robert Falligant. Kinckle became the first black lawyer to be admitted to the practice of law in the Eastern Judicial Circuit. John Kinckle died in 1922, remembered as a successful practitioner of the law.
Abraham Lincoln Tucker was born about 1874. He became a postal clerk, and read law under Peter W. Meldrim, being admitted to the bar in Savannah in 1898 before Judge Robert Falligant. He was reputedly the most successful black lawyer in Savannah by the following year. He and Edward M. Morse were members of the firm of Tucker & Morse. A number of other black lawyers followed in short order, including J.Gordon Dingle, W.E. Moore, Foster B. Pettie, Henry Macbeth, and James Garfield Lemon (Sr.). The Savannah pioneers, Kinckle and Tucker, set the stage for such better known black lawyers in Georgia as William A. Pledger, H.L. Johnson, C.H.J. Taylor, and T.H. Malone.
In Georgia's lowcountry, bridges, roads, fords, and tides are all touchy issues. The history of the
Skidaway bridge is a case in point. Although there was a ford across Skidaway Narrows from the earliest
colonial times, high tides tended to delay traffic between the island and the mainland. By the time of the Revolution a ferry had been established there, and just after the war an act of the legislature formally recognized the need for a sure passage between that island and the mainland by establishing a ferry between Skidaway Island and the Isle of Hope. By 1808 it was recognized that the fishermen of Chatham's waters needed an unobstructed way into Savannah's markets. Consequently, that year an act was passed making it a misdemeanor to construct a bridge over the waterways of Chatham County which was less than six feet higher than the spring tides. Consequently, fishermen could get their bateaux, loaded with shrimp, crab, oysters, and fish, beneath the bridges without delay.
In 1831 the planters on Skidaway convinced the legislature to authorize the expenditure of public funds to construct a bridge from the Isle of Hope across Skidaway Narrows to the island, and making such bridge a public way. This was not done, however, until 1857. On 10 July of that year the new bridge was dedicated with considerable fanfare. Constructed on palmetto pilings, it had a middle section which could be winched back in order to allow the free passage of boats. During the War Between the States, Confederate troops burned the bridge in order to prevent enemy incursions.
In 1870 the legislature passed yet another act "to make the roads and bridges from the Isle of Hope, across Long Island to the main road on Skidaway Island in the county of Chatham, a part of the public roads, in conformity with the act assented to December 26, 1831." The roads and bridges built on the right of way from the Isle of Hope to Skidaway Island from the year 1858 (sic) were again declared a part of the public roads of Chatham County. In 1870, Amherst W. Stone, Ordinary of Chatham County, had a new drawbridge erected across the Narrows at the cost of about $1,000.
After a lawsuit concerning the location of the Skidaway Road, the legislature approved an act in 1873 which created a body styled "commissioners of Chatham county and ex officio judges" and gave jurisdiction of sundry matters, including public roads and bridges, connected with the affairs of that county. The Skidaway Bridge mysteriously burned in 1874, and was not rebuilt. It has been stated that the bridge must have caught fire as a result of the friction caused by the tidal stream passing underneath. The matter stood unresolved until 1894, when Wolf Barnett and other Skidaway Island landowners made a new proposal to rebuild the bridge. There was no resolution of the debate, and the issue ended in the 1897 case of Barnett vs. Dale, a mandamus action before Judge Falligant. The superior court ordered the bridge built. The matter was appealed to the Supreme Court of Georgia, which overruled the superior court the following year.
There the matter stood for many years. The only access to and from Skidaway Island was by bateau or barge. The island remained in an almost pristine shape until the Diamond Causeway and Bridge were constructed in 1969.
In 1798 the earliest, hesitant moves were made toward the formation of a law society in Savannah when a public call was made for students at law to form a debating society. It was 1893, however, before the Savannah bar began to coalesce as an independent, professional association. The need for a law library precipitated this organization.
During the closing days of 1893 Livingston Kenan sent out notices for the formation of the Savannah Bar Association. This association held its first meeting on 4 January 1894. The permanent organization was effected and officers elected on 20 March of that same year. The members chose Alexander R. Lawton as their first president. (Lawton served as president of the American Bar Association, 1882-1883.) George T. Cann, a young Savannah lawyer, drew up the charter for the new association.
Pursuant to the compelling reason for the Savannah Bar Association's organization, the group accumulated a "considerable" library and applied to the Commissioners of Chatham County for space for the books. Joseph J. Dale, chairman of the Commission, approved the Bar's plan on 8 August 1894. The result was the removal of the County Engineer from his office on the top floor of the courthouse, such office being originally designed for library purposes when the new courthouse was built in 1889.
One of the greatest hardships to new lawyers in Savannah concerned the conduct of "pauper criminal cases" which the court often appointed young lawyers to defend. The work these young lawyers was called upon to perform was de gratis, and while they were usually relieved from all costs in such cases, the burden sometimes fell on them due to some slight error which they may have made in draftsmanship.
In 1894, for example, the court in Savannah appointed a young lawyer to defend a pauper charged with cheating and swindling. The defendant was convicted. The lawyer filed the obligatory motion for new trial, which, of course, was overruled. The lawyer filed the required bill of exceptions, and the case went to the state supreme court. To relieve himself of the court costs in the case the lawyer sought to have the prisoner sign a pauper's affidavit, the proper proceeding in such cases. The court refused to have the prisoner brought into the city to sign the affidavit before a notary public. No notary could be secured to go to the convict camp for that purpose unless a substantial fee were paid him. In desperation, the young lawyer had the prisoner sign the affidavit in the presence of seven guards at the camp, who all signed it as witnesses to his signature. In this shape, the case went to the supreme court. That court sustained the decision of the lower court, and because the signature of the prisoner was not witnessed by a notary public, it assessed all costs in the case against the young lawyer.
Another, even harsher, case was felt that same year. The young lawyer who was appointed to defend a case wrote in the pauper's affidavit which the prisoner signed that the prisoner "is not able to give bond and pay costs." In the typical fashion which has not changed to the present, the supreme court held that this statement should have been in the disjunctive instead of conjunctive form, or in other words should have read "is not able to give bond nor pay the costs." For this "enormous and inexcusable" error the supreme court decided that all costs must be assessed against the lawyer, as the pauper's affidavit was not in good form.
By the time of the outbreak of the Spanish-American War in 1898 there were over eighty lawyers practicing in Savannah. Fifteen of them were members of the Savannah Volunteer Guards Battalion, considered an elite unit in the Georgia military establishment. At the news of the sinking of the Maine and the declaration of war, the Guards went into federal service as a component of the 2d Georgia Regiment, Volunteers. Judge Robert Falligant, on the superior court bench, kept a growing list of "my boys," Savannah lawyers in active military service. An article about their service stated, "There is many a lawyer now at the Savannah bar who wears the Confederate Veterans badge, and they all wear it honorably and nobly." It added that military service was good for Savannah lawyers. "It demonstrates that their oath to support the Constitution of the United States and to defend it, means more to them than so much ink and paper .... " Judge Falligant stated that he would not let the interests of any of his "boys" suffer, "when they have gone to the defense of their country. Not if I can help it."
That was the serious side of Bob Falligant. Another side of that talented lawyer was of poetry and humor. "I am fortified by the consciousness that your gallantry assures me your generosity," he would intone with a twinkle in his eye upon being introduced to a stranger.
Among the leading lawyers during these years was Peter Wiltberger Meldrim, whose grandfather had come to Savannah from Ireland. Meldrim served in the Confederate Army as a youngster. Becoming a member of the bar after the war he quickly displayed brilliance in his knowledge of the law and great perspicuity in his understanding of men. He served as mayor of Savannah during the Spanish-American War, president of the American Bar Association from 1914 to 1915, and from 1917 as judge of the Superior Court of Chatham County. Among the anecdotes told of him was the one concerning his visit to Colorado for a bar association meeting. While there, he was introduced as a former Confederate to a veteran of the Union Army. Asked if he recognized the federal soldier from his combat days, Judge Meldrim responded in the negative. However, when the federal vet turned to leave, Meldrim pointed at the man's back and exclaimed, "Now I recognize him!"
Turn of the Century to the Great War: 1900-1917
Since the days of Thomas Causton, Savannahians had argued about the meaning and effect of the tail male estate created by the statute of Westminster second, the Statute de don is conditionablibus, enacted in 1285. The Trustees had granted out the lots in the town so that they would descend only through the male heirs of the owners. In 1739 William Stephens decided to explain this system. After he had finished his task, and exerted his utmost abilities in giving an explanation, one of the colonists jokingly remarked that Stephens' whole argument consisted of males and tails; that all the lawyers in London would not be able to bring the meaning down to his companions; and that he understood as little of its meaning as he had when Stephens had begun. Others wished to know how often those two words had occurred in the resolutions, that the number ought to be preserved as a curiosity, and that the author ought to be lodged in Bedlam for lunacy.
As late as 1900 Savannah lawyers were still arguing strenuously in the state supreme court about the meaning and effect of the tail male estate on local property, an inauspicious entry into the Twentieth Century by the Savannah bar.
Apparently, the death of General Lawton and the intervention of the Spanish-American War caused the dissolution of the Savannah Bar Association. By 1904 it was reported that the association had been inactive for so long that the younger members could not remember any of the names of the officers of the Association. This year a call was made for the revival of the organization. The idea developed slowly. On 3 April 1905 the Savannah Bar Association reorganized with twenty-five members. The group elected the following officers:
Captain Henry C. Cunningham, president
Judge Samuel B. Adams, vice president
Thomas G. Basinger, secretary
Thomas N. Denmark, treasurer
At the same time, the bar association elected a board of directors and adopted by-laws. The membership decided to hold quarterly meetings (the first Tuesday in May, July, November, and January) and one annual meeting (the first Tuesday in March). These officers were re-elected the following year.
Among the most prominent lawyers of this era in Savannah was one who excelled in the linguistic intricacies of Latin, Greek, Hebrew, and Gullah. One of his favorite stories involved his circuit riding days. Just after the turn of the century, he and other Savannah lawyers attended court at Clyde, Georgia, now lost in the vastness of Fort Stewart. At one point in the proceedings a poor man was brought forward as the accused in a criminal case. He had no lawyer to represent him, and told the judge that he could not afford to hire one. The judge responded that there were several fine, Savannah lawyers lined up against the courtroom wall from which he should pick one to represent him as a pauper. The old man slowly walked down the line of lawyers as the solicitor-general helpfully identified each. "This is Mr. Gignilliat. This is Mr. Falligant. This is Mr. Ravenel. This is Mr. Travis." And so forth, down the line. Upon reaching the end of the lawyers, the old man scratched his head and slowly walked back up the line, examining each lawyer carefully. After he had returned to the beginning, he turned to the judge and solemnly asked, "Judge, is you got any other lawyers outside I kin look at?"
Competition for the Savannah Bar Association arose in 1912 with the formation of the Law Society of Savannah, composed of the younger practicing lawyers of the city. John R. Fawcett became the first president of the Law Society, and Charles N. Feidelson succeeded him one year later.
Justices of the Peace or Magistrates Courts were recreated after the Revolution to administer petty civil claims, but were not fully organized until the Judiciary Act of 1797. In addition they had criminal jurisdiction to issue warrants, committals, and recognizances. They were organized by militia districts, there being two justices for each district. These justices were originally appointed by the Inferior Court, but from January of 1821 were elected by the people. Constables were also appointed for each district to enforce the orders of the court, such constables being elected by the people from January of 1830. Justice Courts were authorized juries of five people. From March of 1810 each justice of the peace was required to keep a Book of Entry of all civil proceedings for the recovery of debt.
The number of militia districts fluctuated in the city of Savannah from one to six until 1815, when the districts were set at four, numbered I through 4, west to east within the city limits. These militia districts within the city were known as Beats. There were five such districts in the unincorporated area of Chatham County from 1782 until 1805, when they were set at four, numbered 5 through 8, east to west across the county as follows: 5th G.M.D. (Sea Islands), 6th G.M.D. (White Bluff), 7th G.M.D. (Great Ogeechee), and 8th G.M.D . (Cherokee Hill). These Justice Courts continued in existence as Magistrate Courts through 1915, when due to the excesses of the courts, they were abolished.
Created by act of the legislature in 1915, the Municipal Court of Savannah began operations the following year as a successor to the Justice of the Peace Courts. It ultimately had a chief or senior judge, one or two associate judges, a clerk, and a sheriff. The court was abolished in 1984, and its sheriff's department merged with the Chatham County Sheriff's Department. The court had small claims jurisdiction in civil matters, and limited criminal jurisdiction, primarily as a court of preliminary hearing.
Beginning in 1904 a movement began for the organization of a juvenile court for Chatham County, Georgia. In 1908 the legislature enacted a law creating Children's Courts as a branch of the superior court system. Judge Walter G. Charlton of Chatham Superior Court, in his additional role as judge of the new Children's Court for Chatham County, organized his new court in January of 1909 by appointing a probation officer and clerk of court. By March of 1911 a juvenile farm was in use in Chatham County, and Judge Charlton was sentencing youthful offenders to the farm.
However, a Savannah case brought this system down. Robert E. Law, his wife, and their five children, moved from South Carolina to Savannah, quickly becoming the objects of charity. Soon, Judge Charlton, as judge of Children's Court, removed the two sons from their parents' custody and placed them in a home for friendless children in Atlanta. In 1914 Mrs. Law filed a writ of habeas corpus described as "a ponderous legal action" in Fulton County to recover her two boys. In the ensuing supreme court case, that court ruled the Children's Court Act of 1908 to be unconstitutional.
The winning lawyer for Mrs. Law, a woman of "roving temperament," had trouble locating her to give back her two children. Mrs. Law quickly returned these boys to the home from which the Supreme Court had taken them.
A new, separate court for juveniles in Chatham County was finally organized by act of the legislature in August of 1915. The court began operating the following year with Charles N. Feidelson as its first judge. On 29 January 1916 Judge Feidelson appointed Miss Sallie McAlpin, a graduate of Kate Baldwin, as the first probation officer for the new court. Her exam was the first of its kind in Georgia, being conducted under the civil service rules. Judge Feidelson held court in the Harte House at the corner of Habersham and St. Julian Streets.
At the annual banquet of the Law Society of Savannah in February of 1916, its outgoing president John G. Kennedy spoke of the possibility of that society's amalgamation with the Savannah Bar Association. As part of the program that night, the lawyers presented a take-off on Shakespeare. Indulging in their propensity to use Latin phraseology, their "drama" was entitled "Pierpontius et Shelbius." "Shelbius," Shelby Myrick (Sr.), later recalled the able Savannah lawyer who tried a case in an adjoining, rural county then still in the Eastern Circuit. In presenting his legal points to the judge, the lawyer used a number of legal maxims, res ipsa loquitur, sui generis, non constat, g fortiori, dum fervet opus, and vigilantibus et non dormientibus iura subveniunt. The jury returned a verdict against this lawyer, the foreman explaining that the jury members were outraged at him for using "cuss words" in addressing the judge, and therefore had decided the case in favor of his opponent.
In May of 1916 plans were laid to amalgamate the Savannah Bar Association (Henry C. Cunningham, president) and the Law Society of Savannah (Leo A. Morrissy, new president). The lawyers pushing for this joinder formed three committees. The committee from the Law Society, which took the initiative in this movement, was composed of Chairman A. Pratt Adams, John G. Kennedy, and David S. Atkinson. The committee from the Savannah Bar Association was composed of Chairman Samuel B. Adams, George W. Owens, Alexander R. Lawton, and James M. Rogers. The committee from the bar at large was composed of Chairman Thomas M. Cunningham Jr., Frank M. Oliver, and Herschel P. Cobb.The committee members held a joint meeting at the Hotel Savannah on 14 March 1917. The two associations dined together two nights later and merged under the name of the Savannah Bar Association.
The membership chose A. Pratt Adams as president, recognizing his strenuous efforts in bringing the two organizations together as one. James M. Rogers was elected vice president, and Hugh M. Gannon became secretary and treasurer.
The objects of the association, as stated in the constitution, were "to cultivate good fellowship among its members, to enforce the ethics of the profession, and to promote the best interests of the profession of the law." One of the chief objects of the Savannah Bar Association came to be the promotion and encouragement of a better understanding between lawyers and laymen.
A standing committee of five, known as the Grievance Committee, was charged with a duty to investigate, by such methods as it deemed proper, any complaint made against any member of the association, with respect to his professional conduct. If a complaint were to be made against a lawyer who was not a member of the association, it was investigated by a committee appointed by the superior court.
Sarah Estelle ("Stella") Akin read law in the office of Donald H. Clark in Savannah. She was sworn into the practice on 24 December 1917 before Judge Peter W. Meldrim as the first female lawyer in Savannah. She served as judge of the Municipal Court of Savannah, 1957-1969, subsequently becoming Chief Judge of that court. She died in 1972.
The first female lawyer admitted to membership in the Savannah Bar Association was Miss Elizabeth M. Fitch, elected on 11 February 1939. The Savannah Bar Association voted on 12 March 1952 to open membership to all women lawyers - even though it was not necessary.
Modern Bar Association: 1917-Present
In August of 1946 H. Sol Clark, subsequently a justice on the Court of Appeals of Georgia, led the
efforts to organize the Legal Aid Society for indigents. This was soon joined by another service by the Association, its Lawyer's Referral Service.
The Young Lawyers Section of the Savannah Bar Association was organized in July of 1959, and
continues to address the interests of the younger practitioners .
In order to encourage various worthwhile legal efforts in the community, the Savannah Bar Association began offering in 1949 its annual David S.Atkinson Jr. Award for the best essay on the U.S. Constitution. In 1969 the Savannah Bar Association added to the awards it presented its Liberty Bell Award for Distinguished Community Service.
By 1960 the Savannah Bar Association recognized the growing need for informing the public of various topics of legal interest, and the importance of informing its own members of new developments or old lessons learned in the profession. As a result, the Association began the presentation of a series of legal forums conducted by its members.
For a generation the social side of the Savannah Bar Association has offered its annual boat ride to Daufuskie Island, its oyster roast, and its annual party. On its more serious side, the Savannah Bar Association continues to recognize its distinguished, living members with loving cups and its most historic, deceased members such as Justice James Moore Wayne with appropriate markers, and has initiated programs of continuing legal education for its members and others in the Savannah area.
One of the most important features of the Savannah Bar Association is the Law Library, originally located in the Blun Building. It was owned by the County Commissioners, under the suggestions and recommendations of the Library Committee of the Savannah Bar Association. Expenses in connection with maintaining the library were paid from funds of the bar association. Ultimately, the library was moved to the top floor of the Chatham County Courthouse. When the court business was moved to the new courthouse on Montgomery Street in 1978, the library was moved there. It presently, however, is housed in the parking garage adjacent to the courthouse.
At a banquet Judge Robert Falligant was making the return to the Toast to Savannah. As he warmed up to the subject, he spoke of the great statesmen of the North Georgia hills, who had flown upwards like "eagles in their aeries." He contrasted them with those who lived on the Georgia coast in close communion with the sea, stating that the influences in their own lives were more broadening and sublime. Then Falligant leaped to the poetry of Moore and Byron, quoting their lines on the ocean. Falligant ended his speech with what was to become the most succinct statement as to why so many lawyers choose to reside and practice in Savannah, "I'd rather be a fiddler on the coast of Georgia than a harpist in the Kingdom of Heaven."