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R. Carter Pittman

An addendum on Writs of Assistance follows this address.

A Georgia Lawyer Examines the Bar

By R. Carter Pittman

This essay was prepared as a speech to be delivered at the 71st Annual Meeting
of the State Bar of Georgia, June 1954. However, Mr. Pittman made another address on that
occasion due to the Supreme Court's decision in the school segregation cases.

Y OUR President [Edward A. Dutton] called on me to talk to you on the subject of Georgia Bar Examinations. When he did so I was startled and immediately asked him why he did not call on a member of the Board of Bar Examiners whose office is in the same building as his own and who is a learned man, an accomplished speaker and an ornament to the American bar. Ed's reply was: "I know that but you will be a new broom." So, in a moment of weakness, I consented to do a command performance as "a new broom."

My subject "Georgia Bar Examinations" has now been expanded into "A Georgia Lawyer Examines the Bar."

In order to prepare you for that which follows we take the liberty to withdraw a concluding paragraph to make a preface: It is our studied opinion that the Georgia bar has reached the lowest level of learning, ethics, morality and leadership in all of its history. It is now overrun by ex-taxi drivers, ex-policemen, ex-salesmen, ex-auditors, and I am told, a few ex-convicts. Most of them sought admission to the bar not to serve the high purposes of a legal profession but to serve the low purpose of becoming respectable scavengers on the windward side of the law.

A few months ago we received an engrossed copy of a resolution adopted by the General Assembly of Georgia, dated November 19, 1953. We read it to you:


     Requesting the State Board of Bar Examiners
to require law students to successfully pass a
course on legal and judicial ethics; and for
other purposes.

     WHEREAS, the legal profession is a noble
profession and one in which the members thereof
should at all times display the highest standards
of ethics, in order that said profession enjoy the
confidence of the entire public; and

     WHEREAS, it is extremely desirable that all
persons entering such profession should be imbued
with a knowledge of what constitutes legal and
judicial ethics;

, that the State Board of Bar
Examiners be requested to include on each bar exami-
nation questions which involve a knowledge of legal
and judicial ethics.

     BE IT FURTHER RESOLVED, that a copy of this
Resolution be transmitted to each member of the
State Board of Bar Examiners.

The words of that resolution express high sentiments and we commend Mr. Nightingale of Glynn and Mr. Groover of Bibb for calling the subject to the attention of the Georgia Bar Examiners in such a forceful manner. Between the lines, that resolution says far more than it says in the lines. It tells the legal profession in Georgia that it has lost its nobility and its virtue; that its standards of ethics is at a frightful level; that it has lost the confidence of the public and needs to be imbued with a knowledge of what constitutes legal and judicial ethics.

It is our opinion that the General Assembly of Georgia was well informed and that its anxieties were well grounded. To use an illustration within our personal knowledge: Not long ago an attorney blew into our section of the State, out of nowhere. Immediately he began advertising on the radio and in the newspapers as a "tax expert." He advertised that he had the "best law library in North Georgia" and invited all the lawyers of North Georgia to use it free. In fact, he knew nothing whatever about taxes and he could have put his entire library in a wheelbarrow. He advertised that he would make out the income tax short form for $1.00 and apologized for charging the $1.00 saying, "It is too much." Droves of ignorant people overran his office night and day. He kept his word and charged $1.00 for making out the short tax form but he charged $5.00 for notarizing it. By such methods he accumulated an estate of more than $75,000.00 in about five years and retired to Florida to lick his chops. Immediately after he left Georgia a poor widow came to my office with a note against him for $3,000.00. That note, prepared by this lawyer, recited among other interesting things, that it would fall due when the maker, in his own opinion, was able to pay it, and that if it was ever sued on in a court of law it should be held and adjudged to be void. He is still a member of the Georgia Bar and we assume that he still holds himself out as some sort of an "expert." That he was.

The foregoing is but an illustration. At one time we thought that perhaps there was something singular about the situation in our part of the State, but upon inquiry we find such conditions to exist in many parts of the State. Apparently the members of the General Assembly must have known much or they would not have adopted the resolution I have just read to you.

Speaking to the words of the resolution, we are sorry to say that there is no Bar Examiner who has ever lived who could devise a question the answer to which would open a window into the heart and soul of an applicant. A thief can tell you how not to be a thief just as well, if not better, than can an honest man. A communist knows better how to conceal his depraved heart than does the run of mine criminals, because they were trained to do that very thing. The most plausible people in the world are too frequently its worst scoundrels. Hypocrisy is an obscure science to honest men. Bar Examiners can devise questions that will open a window into the mind of an applicant to enable them to see how it works. Only God can open a window into the heart, and soul of men. In order that one may know with reasonable certainty the kind of mud a man is made of, an investigation must be made among those who have observed him in the daily walks of life.

We need a workable plan for determining the moral and ethical qualifications of applicants. That responsibility now rests wholly on Superior Court judges in Georgia. It is the opinion of some of us who have seen the evidence, that in many circuits of this state no investigations whatsoever are being made as to the character and morality of those who seek admissions to the bar. There are a few outstanding exceptions, but exceptions can't stem a tide.

Most Superior Court judges perform their duties with respect to character investigations with no more fidelity to duty than has the United States Senate with respect to character investigations of appointees to the Supreme Court bench during the last 25 years. Supinely and equally they have approved men whose character would dishoner the heart of a midnight assassin. The Georgia bar must solve its problems. Other bars have done it. Georgia can do it.

Under present statutes, approved by the Supreme Court, Bar Examiners are authorized to pass upon the character qualifications of applicants independent of their knowledge of principles of law, but no effective machinery has been set up for use by the Board in order to make such determinations. They may judge of educational qualifications from the papers they read prepared by the applicants themselves. But one of the first things that an applicant of low moral character learns is the definition of a "self-serving declaration." The next thing he learns is how to use it. If the members of the Board should undertake to make the character investigations that must be made, the individual members would have no time to do anything else during their tenure of service.

The biggest problem facing the bar of Georgia at this hour is not so much the ethics of the applicants, but it is the ethics of those who are now members of the bar. We have now adopted the essay type of examination that tests the applicant as to his knowledge of fundamentals and his power to use fundamentals and elemental principles in order to reach a reasoned conclusion as to what should be the answer to intricate legal equitable situations. The successful applicant must now reason from a fund of knowledge. Recitals of definition are of no avail unless he can apply them properly.

The fact that an applicant has burned enough midnight oil to ground himself in the fundamentals of law that he is now able to pass our examination, is corroborating evidence that he has character, but it is not enough to support a verdict.

We well knew that there is an undercurrent of murmuring against the type of examination that is now being given. Some point with alarm at the percentage of failures since Alex Lawrence and I were first added to the Board in 1952. Some good lawyers have made the amazing statement that we are giving examinations that they themselves could not pass, and that, therefore, there is something wrong with the examinations. We answer that criticism by asking a question: Could those same lawyers pass a high school examination today in geometry without having reviewed it during the last twenty years? Could they pass a high school examination in physics, chemistry, Latin or French without having reviewed those courses? If they couldn't, is it not natural to expect that they could not now pass an examination in some field of law that they have not reviewed or used in their practice during the last ten or twenty or thirty years? From the training that they once had they could review those fields of the law that they once knew and could pass our examination.

Three examinations have been given since Alex Lawrence and I went on the Board. At the first two examinations we were a minority. Earle Norman was added in time to grade papers for the second of the last three examinations and, of course, he, Alex and I made a majority of new members for the last examination. Due to the illness of Mr. Norman and Gov. Slaton, and the withdrawal of another member, for reasons we forebear to labor here, Alex Lawrence and I graded all of the papers of the 350 applicants who stood the last bar examination. We divided the applicants by numbers and each of us took the papers of approximately 175 applicants and read our eyes out day after day and night after night until we had finished them several weeks later. We first made a trial run and graded the full sets of the papers of a few applicants and each of us kept our grades secret from the other. We then compared grades and made slight revisions in our methods so that both would grade alike. We then went at the frightful task, each on his own, and we came out at the end with approximately the same percentage of failures and successes.

We assume no prerogative to speak for our valued friend Alex Lawrence. There is not a lawyer in Georgia better qualified to speak for himself than he. We recite our own personal impressions both as to the last bar examination as well as the two preceding examinations: In the first place 50% of the applicants had never seriously studied law and were not qualified to stand the examinations. That 50% knew no more law than the average court bailiff knows. We were shocked by the number of pathetic papers of applicants who had apparently taken some cram course and who came to the Capitol primed and ready to answer the type of questions that had been asked on many examinations if Georgia in the years gone by, and who attempted to answer questions designed to elicit their knowledge of the science of law by giving a few definitions they had memorized somewhere. The papers of those applicants, who had been led to believe that anybody can be a lawyer in Georgia for the asking, accounted for approximately 175 failures out of 350 applicants at the last examination. Prior to the last examination some of such applicants may have passed, and some of the most learned applicants may have failed, but we exercise the natural right of self defense and hasten to inform the Bar of Georgia that if any of that number did pass and some of the well qualified applicants failed, their papers were not graded by an member of the present Board of Bar Examiners.

Fifty percent of the remaining 50% had studied law barely enough to encourage them to believe they might get by. Sof of that 50% may have gotten by because of sound common sense and felicity of expression that enabled them to set forth their ideas in an attractive manner. Most of the were two year students, "jumping the gun." They had burned their candles part-way down but not all the way. Some of them made excellent grades on the subjects they studied in law schools but utterly failed on subjects they had not yet studied, and as a result they could not make the necessary 70 points. That reduced the total by another 25%, leaving 25% to pass. Some of the three year men probably failed. We will discuss the reason for that in a moment, but that explains, in general terms, why only approximately 25% of the applicants have passed the last three examinations. The percentage of those passing will increase as the quality and the training of the applicants increases.

Before discussing the anatomy of our educational system today, as evidenced by the papers we have read, we wish to refer to some other resolutions that have been adopted by the General Assembly of Georgia: In an hour of passion and mock patriotism the General Assembly of Georgia has repeatedly adopted resolutions calling on the Supreme Court to adopt a rule granting five point preference to applicants in the armed services or who have been honorably discharged from the armed services within a stated period. In deference to those resolutions such a rule has been promulgated. Let it be said for the Supreme Court of Georgia that it is not an institution designed to create or resist a powerful crusade. If the organized bar of Georgia had indicated to the Supreme Court of Georgia that it opposed such a resolution, it is our opinion that such support might have prevented the adoption of that rule urged by the Assembly.

The rule should never have been called for the General Assmbly because it was both unfair and unconstitutional. Ours is a profession -- not a trade. There can be no substitute for learning and character as a prerequisite to admission to the bar, even though it be an honorable discharge from the armed service. Service in the armed forces of the United States is the performance of a high duty of citizenship. It is a recurring instalment that must be made on the purchase price of liberty. The performance of that duty of citizenship has its own rewards. If it does not, a reward may not be devised that results in the debasement of a profession. We and our forefathers before us have paid the price of liberty over and over again, to have it bartered away over and over again by our international-minded leaders who have been enemies to the welfare of our children, and who have been the loyal friends of every country and every race except their own. As long as we select such men as our leaders, we will continue to pay the price of liberty with the blood of our children. Nevertheless, no armed service is a law school any more than it is a medical school. If we may give beterans 5 points we may give them 70 points and pass them to the legal profession or to the medical profession without examination. If the General Assembly wants to reward the performance of a duty of citizenship, it should let the legal profession alone and go to the medical profession because we sorely need more doctors of medicine. We see a difference, but not a distinction, between having our warts taken from us by a medical quack, and our estates taken from us by a legal quack.

There are times when one's faith is shaken in mankind, but somehow something seems always to happen to restore and compose that faith. During the last bar examination a young man said to me:

Well, I am here again! I guess I would have passed the last examination if I had claimed my veterans preference, but I just couldn't do it. I would always be ashamed of it. I don't think it's right. I have decided that if I can't be a lawyer on what I know I won't be a lawyer at all!

I wish that boy were my son!

In the grading of papers from the last bar examination we were in position to review the papers of those boys who made a grade between 65 and 70. If we found that one near the passing mark was sufficiently grounded in the law to justify admission we could have revised his grade to pass him at 70. On the other hand, if we felt that he did not know enough law to justify admission to the profession we could have revised that grade to bring him under 65 and thus accord to all applicants equal justice under law as well as the resolution. We cannot speak for any other examiner but we will not plead the Fifth Amendment nor claim the privilege against self-incrimination. There is no place in the Georgia bar for a "resolution lawyer." We will never grade any boy or girl on his knowledge of a constitution that we ourselves ignore. The oath that all of us have taken to support the Constitution is the same one a successful applicant must take before he may practice. That oath is to God. Only God may remit the obligations of it. We don't intend to spend our lives running from temples of justice to temples of prayer.

The Board of Bar Examiners is not a board of censors. We have no authority or desire to instruct schools as to how they shall prepare applicants for life or for bar examinations. Nevertheless, we are in postion to comment on the quality of their education as disclosed by the papers we have read. There is something in the papers of the applicants for admission to the Bar of Georgia that stands out like a windmill on a desert. It is simply that we have gotten away from fundamentals. Not only have we gotten away from the most elementary fundamentals in the writing, spelling and composition. We have swapped the "blue-backed speller" for yellow-belied philosophy. So-called "progressive education" is a fraud. It is the worst kind because it is perpetrated upon our helpless children. It is a heart breaking experience to read the papers of so many of our boys and girls who have graduated from high schools who can't even write or spell or express themselves intelligently. If a question involves some new or strange "social philosophy," some of the applicants rol off reams of paper on the subject. We don't know where they could have been indoctrinated with such trash unless in public schools. If the question involves a fundamental principle that has been refined by a thousand years of history, and the bitter experiences of our forefathers as they live under and fought despotism for centuries to achieve freedom, those same applicants are lost.

The "progressive education" philosophy of Karl Marx and Prof. Dewey has permeated much of our educational system from first grade to professional degrees. We have raised up a generation of "social philosophers" who are teaching our children to sneer at all that is old, all that has been tried and all that has been found to be true. We have discarded 5,000 years of experience into waste cans and traps set by philosophers such as Marx and Dewey. We have reversed the processes of evolution. We have adopted the specious lables of "liberal education" and "progressive education" and are applying "new social philosophies," "new" doctrines, "new" theories and "new" experiments. In discarding the lessons learned in the hard schools of experience and gardens of Gethsemane, the American mind is being prepared for the kind of despotism that we think lies behind iron curtains on other continents, but which in fact lies just around the corner in our own land if the trend is not arrested.

In some law schools somewhere, our children are being taught the philosophy of judges, seasoned with just enough about the science of law to retain their identity as schools of law rather than schools of social philosophy. We can say with sincerity that we know of no law school in Georgia that has injected our children with such hydrophobias, but they come to us from everywhere and we can't know what schools they attended, until after the grades are certified. We are then too tired to look them up. The case book method of instruction has contributed greatly to that disgrace. The leading law schools in Georgia are back-tracking from that method and we congratulate them. We went for it a quarter of a century ago as something "new and progressive," to the exclusion of great land marks in the science of law. A few applicants know all about the philosophy of such men as "Hiking Bill" Douglas, or they think they do, but they don't know any more about the law or our constitutions than he does. Like him, they know nothing of the fundamental principles that lie in the background of American law and constitutions. It seems that the more a judge bases his decisions on "liberal social philosophy" rather than fundamental principles of constitutions and law the more he is revered in some quarters somewhere. Some law schools would seem to be shrines where Holmes, Brandeis, Douglas and other "liberal destroyers" of constitutions are worshipped and where men like Bacon, Coke, Holt, Blackstone, Lumpkin and Bleckley are sneered at.

Time will not here permit the development of this subject as much as we would like to develop it. However, we will take time to read an exceprt from a news item appearing in the Chattanooga Times a few days ago. It quotes a portion of a speech that was made by one Leif Kr. Tobiassen, "researchist" for the United Nations, to the senior class of the Souther Missionary College, located near our home. Here is a part of what he said:

The fear of being different is dwarfing our youngsters. The fear of not being told what to think has become one of the most malignant cancers of present-day society.(1)

To the graduate of 1954 comes the awful challenge of resisting this trend and fighting this fear. If our rising generation fails in this fight, our democratic society as we have known it will soon become perverted and diluted, and incapable of withstanding its eager enemies.

That same old doctrine was preached to the children of the ancient free Roman republic in order to prepare their minds for its fall, the onslaught of despotism and the dark nights of medieval history. That same doctrine was preached to the children of Germany to prepare the way for Hitler. It was taught to the children of Italy to prepare the way for Mussolini and it was taught to the children of Russia to prepare the way for Stalin. It is being taught all over America in our schools and in our churches. Day after day, our children are told that they have no heritage worth preserving and must invent something "new" in order to "save democracy"; that they have got to "fight" against what is old; that they have got to be "different" and if they are not different they are going to be "mental dwarfs"; that they have got to "resist" the "reactionaries"; that they must hold fast to that which is new and abandon that which is old. Curses upon the mariner who navigates by the old star! We must set our course by a comet's tail!

In the same issue of the Chattanooga Times there was an editorial on an entirely different subject. Unwittingly, the editor who wrote it devastated Dr. Tobiassen. That editorial quoted from the speech of Patrick Henry to the Virginia Convention of 1775. We quote a portion of that which the editor quoted:

"Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren, till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and having ears, hear not, the things which so nearly concern their temporal salvation? For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst and to provide for it.

"I have but one lamp by which my feet are guided; and that is the lamp of experience. I know of no way way of judging of the future but by the past. . . ."

And Patrick Henry said, "Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot?"

Did you notice the words, "I have but one lamp by which my feet are guided, and that is the lamp of experience. I know of no way of judging of the future but by the past."? Those were the words of an American colonial lawyer fresh from one of her frontiers. That was the doctrine of those of our forefathers who gave us our freedom. George Mason wrote these words into the Virginia Bill of Rights of June 1776, the most influential constitutional document ever penned by man:

No free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice . . . and by frequent recurrence to fundamental principles.

Five American states had written into their fundamental constitutions before the decision at Yorktown. Thus it became a watchword of the American Revolution.

In the Constitutional Convention of 1787 at Philadelphia, certain revolutionary proposals were made by pseudo-philosophers that were untried and unjustified by history and experience of man. They were overwhelmingly rejected. Men like George Mason, Elbridge Gerry, James Wilson, John Dickenson and others who knew history and who were learned in the science of government, kept driving the delegates back to fundamentals. They kept saying: "Experience must be our only guide. Reason may mislead us." Our constitutions are the children of history. Experience stands forth in majesty in every sentence of them. The only constitution American has ever had that was written by a philosopher was that written for the Carolinas by John Locke near 300 years ago. As I have said elsewhere: "It was the worst constitution in the history of the Anglo-Saxon race and died in childbirth from congenital deformities."

Every free government that has fallen in this world was the victim of some "new philosophy" that was as old as tyranny itself. In order to preserve our democratic society as we know it we must again emulate our forefathers and avail ourselves of the rich store of experience that is recorded in the history of man, and recur to the fundamental precepts, maxims and principles that have been refined in the laboratories of experience, but that have been found to be true in the struggle of our race for progress, for liberty and for dignity under governments of laws.

Since Dr. Tobiassen is one of may hundreds of subsidized United Nations propagandists running all over our nation, despoiling the minds of our children and inciting them to turn their backs on the American way of life, we make no apology for commenting, whether it be relevant and germane or not, that the United Nations is a Trojan Horse within our walls. The taxpayers of America are subsidizing the "research specialist" and the printing presses of that Trojan Horse. The United Nations serves no other purpose than the purpose of disseminating anti-America propaganda. It can serve no other. The League of Nations failed because it did not have a supreme and independent judiciary to assure international justice. The United Nations will fail for the same reason. The germ of its own destruction was built into its constitution just as it was built into the revolutionary constitution of France of 1789 and into every constitution that has been adopted by communist or Marxist countries. History teaches those willing to learn its truths that without a tribunal that is independent and supreme to administer justice, there can be no justice. If there be no tribunal of justice empowered to impose impartial justice in the relationships between peoples, there can be no lasting union of nations any more than there can be a lasting union of states. Take from the Constitution of the United States or Georgia their supreme and emancipated judiciaries and you have a substantial replica of the League of Nations and the United Nations. Neither would be worth the paper it is written on. Each would be a specious fraud. That is exactly what the United Nations is. If the United Nations is ever empowered to administer justice, it will be Russian justice. God send us never to live under that kind of justice!

Now what does that have to do with the Bar of Georgia in 1954? It is merely to demonstrate how a whole people has gotten away from its fundamentals. We have been educated away from them. Our claims are being with gold extracted from our ouwn pockets.

Someone has well said:

A people indifferent to its past will not long retain the capacity to achieve an honored history.

If we don't know from whence we came we are lost and cannot know whither we go. In the American colonies and in England prior to the American Revolution an attorney was an officer of court with an obligation to the public as well as to his clients. His obligations to the court and to the public were intensely real. It was an office that was always regarded as indispensable to the administration of justice and vital to courts in the performance of their duties. There were certain exceptions in the American colonies resulting from the fact that the bar of England became a tool of royal power during the reign of the Stuart Kings. Some of our forefathers, who fled from their homeland to find freedom in the forest of America, restricted the practice of law out of revulsion to an English bar that had failed in its duty to mankind. However, it was soon found by the colonists that a courageous and learned legal profession was essential to the administration of impartial justice and to the preservation of their new found liberties against the ever recurring assaults of power by despotic rulers on the one hand and more powerful neighbors on the other.

The highest duty of an attorney then and now was and is to aid the courts in repelling usurpations of power and in rooting out corruption and fraud so as to lay bare the unvarnished truth and apply to it legal and constitutional rules of conduct. It has always been regarded the high duty of an attorney to stand in eternal enmity to arbitrary power, from whatever source, and to temper and restrain the lash to those who stand naked before such power.

The right to practice law has never been a privilege or franchise. It is not property nor an immunity. It cannot be assigned nore inherited but is something to be earned by hard study and good conduct. It is held by a tenure during good behavior and dies when the man dies, or sooner when the good character that sustains it dies.

The practice of law is a judicial function and always has been. At one time in our history judges were adjuncts of kings and tools of executive power. When that was true the legal profession was an appendage to a judicial adjunct of thrones. The king who controlled the judges, through them controlled the bar -- controlled their admissions and disbarments. Naturally admissions and disbarments were often handled in that despotic manner that has always been characteristic of judges servile to a power other than that motivated by their learning, their consciences and their God.

The great constitutional decision that ended that condition in America was the one rendered at Yorktown, Virginia, in 1781. That sanguinary decision validated the constitutions of the states including the Constitution of Georgia. Without exception these constitutions took judges off the executive team. When the judges left the executive team the lawyers left with them. The Georgia Constitution of 1777 copied, word for word, a provision of the Virginia Constitution of 1776 written by George Mason, who, in my opinion, was the greatest constitutionalist, the greatest statesman, the greatest libertarian and the greatest fundamentalist America has ever known. That provision was as follows:

The legislative, executive and judiciary departments shall be separate and distinct, so that neither exercise the power properly belonging to the other.

Virginia's Constitution went on and made provision for the blending of powers in instances specified in the Constitution itself. Georgia had no constitution-makers like George Mason, but they soon learned. In Georgia's Constitution of 1798 these words were added to the above quoted clause: "except in the instances herein expressly permitted." These words made separation of powers a workable reality in Georgia for the first time.

In 1954, thanks to George Mason and an informed and dynamic bar of 175 years ago, neither the legislative department nor the executive department may lay a hand upon the judicial department. No man or body of men may constitutionally exercise a judicial power in Georgia except the judicial department unless a specific proviso of the Constitution so authorizes. In orther that there might never again be any question about who should decide that question the Georgia judiciary was made supreme and our Constitution now contains the provision that,

Legislative acts in violation of this Constitution or the Constitution of the United States, are void, and the judiciary shall so declare them.

The highest courts of Georgia were declaring acts of the English Parliament unconstitutional several years before the American Revolution. That was done here in Savannah in February 1772, when the supreme General Court of the Colony of Georgia held writs of assistance to be unconstitutional. We attach a copy of that decision, with explanatory notes, to this paper in the hope that it may be published and that it may inform and appeal to the native pride of Georgia judges and lawyers.

Since admission to the bar is a judicial function, the General Assembly of Georgia has no power to legislate with respect to admissions or disbarments, except in aid of the exercise of that power by the judicial department. The Constitution says that and our courts say that.

The admission prodecures have now been corrected. The disbarment procedures in Georgia are a disgrace. The provide for jury trials. The result of an effort to disbar some scoundrel is usually to make him a local martyr or hero and sometimes to make him a successfuly candidate for a judgeship or for the legislature. Disbarments, like admissions, must be handled on a state level. No lawyer has any more right to a jury trial as to his qualifications to remain a member of the bar than he has as to his qualifications to be a member of the bar. Under its inherent powers, independent of statutes, the supreme court can set up just such a state board for the disbarments of attorneys as is now set up for the admissions of attorneys. No assembly act may tell the judiciary of Georgia that a shyster may practice at its bars. If the General Assembly should refuse to enact legislation in aid of the judicial power to disbar shysters, the Supreme Court may finance it by raising the fees of applicants for admission and designate a portion thereof to go to finance character investigations both for admissions and disbarments.

When we talk about disbarment we should not be deluded. A lawyer who loses his eligibility to practice law also loses his eligibility to be a judge. Whatever may be the rule, or the statute in aid of the rule, it should and must effectively police both the bar and the bench. It takes a just man to make a just lawyer. It takes a just lawyer to make a just judge. It takes a just judge to administer justice. There is no greater cancer on the body politic than a depraved heart wrapped up in a judicial robe.

We do not know the views of the various members of the Supreme Court, but we believe Justice Head when he explained to this Association one year ago that the Supreme Court could not lead a crusade, but that when the bar of Georgia decided to regain lost ground and move to a hight plane, the Supreme Court would do more than its part.

While on that subject we will say something that needs to be said. We know of nothing more disgraceful to the bar of Georgia than the fact it has allowed the judges of Georgia and their families to suffer the want of finacial means to maintain a decent station in life for themselves and their families at least equal to that of the averagae of the better lawyers in Georgia. The constitutional salaries of Supreme Court Judges in Georgia are little more than one-half the constitutional salaries of federal trial judges in Georgia. We, ourselves, have seen the wives of Supreme Court Judges wroking as clerks in order to supplement the salaries of their husbands so that they could give their children a college education. Due to its unfortunate location on the ballot, a constitutional amendment raising the salaries of judges was defeated. The General Assembly has gone to the aid of the judges with an unconstitutional act. Nevertheless, judges and their familiels must eat. If I had dedicated my life to such a thankless service for an uninformed public and an informed but ungrateful bar, I would do exactly as our judges have done. I would accept the money, not as salary, because that is unconstitutional, but as a charitable gift to one in need. No state in this union can boast of a Supreme Court superior in learning and integrity to that which Georgia has. At the same time no people treat them worse. The judicial robe must be the honored emblem and evidence that its wearer has reached the top of his profession by learning, good character and merit alone. Honor without emoluments is empty.

The life span of the Georgia Constitution, the life span of the United States Constitution and the life span of our free republic depend upon the integrity, the learning, the simple virtues of those who wear our judicial robes. Karl Marx teaches that we must degrade the judicial robe as a necessary pre-requisite to the destruction of justice under law. That is what we have done in Georgia. We have adopted the means recommended by Marx to end government under law and substitute therefor what is sometimes called "social justice," at other times called "new light and new life" instead of old landmarks, old virtues, and old justice. The prophetic voice of history cries out the eternal truth that the surest way to destroy a free government is to lead its judicial benches with hungry men or political hacks. We must let cream rise to the top of our profession. The top must be on judicial benches in Georgia and America.

We re-echo the profound statement of Justice Jackson who has said, in effect, that judicial independence and the fragments of freedom left to us in America cannot be maintained unless the judiciary is supported by a learned, ethical, dynamic and courageous bar. It was just such an American colonial bar that studied and applied history, studied and applied the science of government and learned to recognize the symptoms of approaching tyranny. It was that bar that stood as sentries on the outer walls and supported the crippled colonial judiciary as it knocked down unconstitutional acts of Parliament, and excited the people to fight for their rights.

We as modern lawyers think we are smart. The average learning and competence of the legal profession in America today is far down the scale from that of the lawyers in America 200 years ago. There has come down through the corridors of more than 200 years a saying, familiar to everyone within the sound of my voice. It is: "As smart as a Philadelphia lawyer!" That "Philadelphia lawyer" was Andrew Hamilton who defended John Peter Zenger. That "Philadelphia lawyer" happened to be the fourth choice of those who sought counsel for Peter Zenger! William Smith and James Alexander of New York were first chosen and were disbarred by servile judges because they plead that servility in a formal motion praying that the judges disqualify themselves in the cause. The next choice was John Kinsey of Philadelphia, who refused to take the case for personal reasons. The final choice was Andrew Hamilton, an old man near 80. The Zenger case became a celebrated case because it involved the freedom of the press. It should have become more famous because it involved the freedom of the judiciary. The fearless fourth choice Andrew Hamilton was able to do more for his client, fighting a despotic government with servile judges on the bench, than the best of us are able to accomplish today under our supposedly free government with supposedly free judges. The learning and power of taht man, evidenced by his speech to the jury, still echoes to awe us. What he said is as old as the centuries and as fresh as tomorrow. As a result of the fame of that case a fourth choice American lawyer of 220 years ago lives on in our minds to shame and to challenge us to produce an equal, by our "progressive education" systems.

It was the American colonial lawyers who precipitated the American Revolution, who made the plans to carry it into successful operation and who helped to frame constitutions to preserve the fruits of that revolution, under which we have lived a good life and which we now ignore or seek to destroy. No nation in any age could boast of a bar superior to that bar. They had to be learned in the science of government as well as law before they could be admitted to the bar in those days. Their courses of study would make our three year college courses appear juvenile. John Adams and Thomas Jefferson were just average American colonial lawyers. Neither was educated in England. Both had superiors at the bar. As Adams was studying law in 1759, at the age of 24, he made an interesting record in his diary. We read excerpts from that diary:

. . . bend your whole soul to the institutes of the law and the reports of cases that have been adjudged by the rules in the institutes; let no trifling diversion, or amusement, or company, decoy you from your book; that is, let no girl, no gun, no cards, no flutes, no violins, no dress, no tobacco, no laziness decoy you from your books. . . . Labor to get distinct ideas of law, right, wrong, justice, equity; search for them in your own mind, in Roman, Grecian, French, English treatises of natural, civil, common, statute law; aim at an exact knowledge of the nature, end, and means of government; compare the different forms of it with each other, and each of them with their effects on public and private happiness. Study Seneca, Cicero, and all other good moral writers; study Montesquieu, Bolingbroke, Vinnius, &c., and all other good civil writers.(2)

In 1760, while still plugging away, he entered the following in his diary:

This day has been spent to little purpose. I must confine my body, or I never shall confine my thoughts:

The third case, though it constitutes the most remarkable event in the life of Sir John Willes, appears to have escaped the attention of the same author, who shows clearly enough in other ways the feeble interest he takes in this part of his work. An account of it seems necessary to explain the allusion in the text, even though it have no immediate connection with the purpose of the present volumes. This conversation, held in 1760, in which instances of the assertion of the supremacy of the law over arbitrary power in the hands of the monarch are so carefully recounted, is not without its influence upon what comes afterwards.

A lieutenant of marines, by the name of Frye, whilst serving in the West Indies in 1744, was accused of some offenses, for which he was tried by a court martial, condemned and sentenced to imprisonment for fifteen years besides the loss of his commission. Being remanded home with the proceedings in the case, for ratification by the admiralty, the sentence, so far from proving satisfactory, was annulled, and Frye fully and honorably reinstated. Not content with this tardy reparation for the sufferings which he had been compelled to endure in the course of his trial, Frye immediately brought an action for false imprisonment against Sir Chaloner Ogle, the presiding officer. The cause came up before Chief Justice Willes, and such was the nature of the evidence, that the jury at once brought in a verdict for the plaintiff with damages of a thousand pounds sterling. Taking advantage of an intimation thrown out by the court, Frye followed up this verdict with suits against two more of his unjust judges. One of them, Admiral Mayne, was arrested at the moment when he was presiding over another court martial assembled at Depford to decide upon the mutual grievances of Admirals Matthews and Lestook, which had destroyed the efficiency of the Mediterranean squadron when in presence of the enemy the year before.

The officers sitting on this trial took fire at what they deemed a gross insult to their head, and rashly adopted some resolutions which they sent to the Secretary of the Admiralty, together with a letter containing formal charges of misconduct against Chief Justice Willes and his court. The judge was not a man to suffer the dignity of his court to be thus infringed, and his authority called in question. No sooner did he hear of the resolutions that had been sent to the King, than he caused warrants to be issued to take each individual of the twenty-eight constituting the court martial into custody.

The King and the ministry sympathized with the officers. The former went so ar in his answer as to express "great displeasure at the insult offered to the court martial, by which the military discipline of the navy was so much affected, and to promise that he would consider what steps it might be advisable to take on the occasion." In spite of this royal language, the officers felt their situation uncomfortable. Yet they could extricate themselves only by signing a most humble recantation of all their offensive language. This was publicly presented in form to the Chief Justice, who thereupon sealed his triumph with the following remarks. The intimation thrown out in the first sentence will at this day be considered not the least singular portion of the whole affair.

"Although the injury I have received might have required a private satisfaction, yet as the offence was of a public nature, and offered to the whole court of common pleas as well as myself, I thought it more consistent with my character and the dignity of the post I have the honor to fill, to have satisfaction in this public manner; and desire, with the concurrence of my brothers, that it may be registered in the remembrance office, as a memorial to the present and future ages, that whoever set themselves above the law will in the end find themselves mistaken; for we may with propriety say of the law as of truth 'MAGNA EST ET PROEVALEBIT.'" London Magazine for 1746. Barrow's Life of Lord Anson, p. 126. Corresp. of the Duke of Bedfort, vol. i. pp. 107-110-163.

running to Doctor's, cutting wood, blowing fire, cutting tobacco - waste my time, scatter my thoughts, and divert my ambition. A train of thought is hard to procure; trifles light as air break the chain, interrupt the series.

Finished the History of the Common Law, the second time. The Dissertation on Hereditary Descents, and that on Trials by Juries, are really very excellent performances, and well worth repeated attentive reading.

26. Wednesday. Ten days are now elapsed since I began Hale the second time; and all the law I have read for ten days, is that book once through. I read Wood's Institute throught the first time with Mr. Putnam, in twice that time, that is, in three weeks, and kept a school every day. My present inattention to law is intolerable and ruinous.

Night before Thanksgiving. I have read a multitude of lawbooks; mastered but few. Wood, Coke, two volumes Lilly's abridgement, two volumes Salkeld's Reports, Swinburne, Hawkins's Pleas of the Crown, Fortescue, Fitz-Gibbon, ten volumes in folio I read, at Worcester, quite through, besides octavos and lesser volumes, and many others of all sizes that I consulted occasionally without reading in course, as dictionaries, reporters, entries, and abridgements, &c.

I cannot give so good an account of the improvement of my two last years spent in Braintree. However, I have read no small number of volumes upon the law the last two years; - Justinian's Institutes I have read through in Latin, with Vinnius's perpetual notes; Van Muyden's Tractactio Institutionum Junstiniani I read through and translated mostly into English, from the same language. Wood's Institute of the Civil Law, I read through. These on the Civil Law. On the Law of England I read Cowell's Institute of the Laws of England, in imitation of Justinian, Doctor and Student, Finch's Discourse of Law, Hale's History, and some Reporters, Cases in Chancery, Andrews, &c., besides occasional searches for business; also a General Treatise of Naval Trade and Commerce, as founded on the laws and statutes. All this series of reading has left but faint impressions and a very imperfect system of law in my head. I must form a serious resolution of beginning and pursuing, quite through, the plans of my Lords Hale and Reeve. Wood's Institutes of Common Law I never read but once, and my Lord Coke's Commentary on Littleton I never read but once; these two authors I must get and read over and over again, and I will get them, too, and break through, as Mr. Gridley expressed it, all obstructions.

Besides, I am but a voice in natural law and civil law. There are multitudes of excellent authors on natural law that I have never read; indeed, I never read any part of the best authors, Puffendorf and Grotius. In the civil law there are Hoppius and Vinnius, commentators on Feudal Law that I have to read. Much may be done in two years, I have found already; and let it be my care that at the end of the next two years I be better able to show that no time has been lost, than I ever have been yet.(3)

In reply to an inquiry by a young student who wanted to study law, Thomas Jefferson wrote a letter, too long to quote in full here. We quote a portion and summarize a portion:

Before you enter on the study of law a sufficient groundwork must be laid. For this purpose an acquaintance with the Latin and French languages is absolutely necessary. The former you have; the latter must now be acquired. Mathematics and Natural Philosophy are so useful in the most familiar occurrences of life, and are so peculiarly engaging and delightful as would induce everyone to wish an acquaintance with them. Besides this, the faculties of the mind, like the members of the body, are strengthened and improved by exercise. Mathematical reasonings and decuctions are therefore a fine preparation for investigating the abstruse speculations of the law. In these and the analogous branches of science the following books are recommended:(4)

Jefferson then proceeded to list 49 volumes that he should master to qualify for the study of law. Those were to be read by the student before 8 o'clock in the morning! From 8 to 12 he should read law. Jefferson then listed 12 sets of commentaries, abridgements, cases and statutes to be read during those four hours.

From 12 to 1 the student was to read 12 listed works on politics, including Parliamentary Debate in England and Ireland. In addition, he was to read three long works on political economy. During whole afternoons he was to read history. Jefferson listed 22 historical works, including America's colonial history, some of them consisting of many volumes.

From dark until bedtime the student was instructed to read belles lettres, criticisms, rhetoric and oratory. In the vast sweep of literature recommended by Jefferson was the best of the poets, epic, didactic, drama, pastoral, lyric, etc. Masters such as Shakespeare were to be studied, of course, and then came six works on criticism and rhetoric. Under oratory were listed the great orations that have been delivered on the hilltops of history throughout the ages from Demosthenes and Cicero on down through English and American orators of that day.

After making up this imposing list for this ambitious young man, Jefferson added an apologetic note, saying:

These by no means constitute the whole of what might be usefully read in each of these branches of science. The mass of excellent works going more into detail is great indeed. But those here noted will enable the student to select for himself such others of detail as may suit his particular views and dispositions. They will give him a respectable, an useful and satisfactory degree of knowledge in these branches, and will themselves form a valuable and sufficient library for a lawyer who is at the same time a lover of science.(5)

If Thomas Jefferson thus felt it necessary to apologize to the ambitious young law student because of the deficiencies of the curricula he had prepared for him, we will not apologize in 1954 because we insist that the legal profession is a learned profession, and that those who apply for entry to its portals in Georgia shall exhibit reasonable evidence of learning before the door shall be opened.

These two excerpts from the writing of John Adams and Thomas Jefferson and the two earlier quoted excerpts from Patrick Henry and George Mason, reveal a secret -- the secret of our grandeur as a nation -- how and why we reached the topmost position in all history under God. They also furnish the key for determining why we are now moving the other way.

In the words of a famous old judge, making his last exit from the bar of life:



On Writs of Assistance

The ex parte application for Writs of Assistance by his Majesty's Attorney-General of the Colony of Georgia was made to Georgia's supreme General Court as the Act directed. The Customs Collector at Savannah reported on February 20, 1770, that he did not have writs because his applications to a former judge had been refused. On February 8, 1772, James Hume, the Collector of Customs at Savannah, reported to the Custom Commissioners that a new judge had been appointed and that late in 1771 he induced the Attorney-General of the Province of Georgia to make a legal application to the Court for a Writ of Assistance. Attached to his letter is a full report of the proceeding as follows:(6)

                      In the General Court of Georgia
                         January, Friday 17, 1772

Mr. Attorney General, on the Behalf of the Commissioners
of Customs in the British Colonies in America applied to
the Court for Writs of Assistance and on reading the Acts
of Parliament of the 12th and 14th of Charles the 2nd
and also the Statute of 7th Geo. the 3rd respecting such
writs of assistance, their honors the three assistant
Judges were of opinion That notwithstanding they would at
all times give their utmost assistance in discouraging
Frauds on His Majesty's Customs, yet apprehending there
was not an immediate occasion for such Writs which when
there was they would be willing to grant them, therefore
were of opinion no Writs of Assistance should be granted
at present. And his honor the Chief Justice was of opinion
that as such Writs were usually granted by the Court of
Exchequer in England without affidavit being first made
and as the Act of 7th George 3rd directs the Supreme
Courts of America to grant such Writs on Application to
them for that purpose he therefore apprehended that the
Court had no discretionary powers to refuse the same but
were obliged to grant them. It is therefore ordered there
being three judges against one that Mr. Attorney General
do take nothing by his motion.
These are to certify that the above contains a true copy
taken from the minutes of the court aforesaid. Examined by

                   Preston Pryce C.G.C
                   Pleas Office
                   18th February, 1772.

The judges who held the writ to be unconstitutional were Elisha Butler, Jonathan Bryan, and Noble Jones. The Chief Justice, who ruled that the writ ought to be granted, was Anthony Stokes.

Chief Justice Stokes received both his subsistence, in the amount of 500 pounds per annum and enjoyed his tenure at the "pleasure" of the King.(7) Justices Elisha Butler, Jonathan Bryan and Noble Jones received their subsistence from the Colony of Georgia.

In the general course of human nature,
power over a man's subsistence amounts
to a power over his will.

Federalist, No. 78



1. Chattanooga Times, Sunday, May 16, 1954.

2. II Life and Works of John Adams, p. 59.

3. II Life and Works of John Adams, pp. 102, 103, 104.

4. Basic Writings of Thomas Jefferson (Philip S. Foner, ed.) (1944) p. 499.

5. Basic Writings of Thomas Jefferson (Philip S. Foner, ed.) (1944) p. 503.

6. Dickerson, O.M. "Writs of Assistance as a Cause of the Revolution." The Era of the American Revolution, (1939) p. 65; Copy with letter of James Hume to be found in Treasury I, Bundle 491.

7. II Board of Trade Journal, p. 238.


The text of this address edited by Joel T. LeFevre.