vance of the meeting of that body, with the expression of the strong indorsement and approval of this Association.

Senator Bacon: I would suggest that the resolution ought to be printed with the address because that embodies what the resolution provides.

Judge Hillyer: I accept the amendment,

Mr. Bacon: I did not intend it as an amendment necessarily. But that is the only way in which this action can be embodied.

The resolution was adopted unanimously.

The President: The next business before the Association is the Symposium on the "Dumb Act of 1850." The first paper is by Mr. Peabody.

Mr. Peabody: Not being certain that I could be present I took the liberty of reducing my remarks to writing, and for the convenience of the Association I sent up on yesterday about twenty copies and asked Mr. Levy to distribute them. I believe this has been done, so that if any of the gentlemen wish to follow the discussion, they can do so.

Mr. F. D. Peabody read the following paper:

"THE DUMB ACT OF 1850."

Inasmuch as there are but few lawyers at the bar to-day in Georgia who practiced under the old régime, perhaps it would be of some value to the discussion that is to follow, should I attempt a brief statement of the law as it stood before the passage of the Act of 1850, and as it stands modified by that act.

In doing this, I shall incidentally give the opinions of a number of judges and writers on the subject.

Prior to the passage of this act the English practice prevailed in Georgia. Nisbet, J., in an early opinion,1 in illustrating and stating the English practice, quoted from Lord Brougham as follows: "Lord Ellenborough was not one of those judges who in directing the jury merely read over their notes, and let them guess out the opinion they have formed, leaving them 1. Holder v. State, 5 Ga. 441

without any help or recommendation in forming their judg ments. Upon each case that came before him he had an opinion, and while he left the decision to the jury, he intimated how he thought himself. This manner of performing the office of a judge is now generally followed and most commonly approved."

It is a mistake to suppose that under the English rule as practiced in Georgia, that juries were mere puppets to register the will of the judge.

After an elaborate discussion of the rule, Judge Nisbet, in the case above quoted, concludes as follows: "Whilst we thus concede to the judge the right of opinion on the facts, we have held that he shall not direct the jury how they shall find, but shall leave that distinctly to them. The distinction between opinion and direction runs through all the books; whilst the judge may give to the jury his help or recommendation in making up their verdict, yet they are to be left free to judge for themselves. The judgment on the facts should not be left by inference to the jury; it ought to be distinctly abandoned to them. Their unquestioned right ought to be intelligibly presented to them, and they ought to be invited to its exercise, in all cases, where the court intimates an opinion. They should be made to feel that upon them alone devolves the responsibility of their verdict. They ought not to be permitted to feel that they can take shelter under the opinion of the court."

Referring to this and other Georgia cases, that learned jurist and writer, Judge Seymour D. Thompson, says: "These and other decisions before the passage of the statute, exhibited a strong tendency in the Supreme Court of Georgia to uphold with firmness the independence of the juries. Thus, in a celebrated capital case it was held error for the judge, in his charge to the jury, to intimate doubts as to the competency of certain legal testimony, which had been offered before them, since this was calculated to weaken its effect in their minds. So, it was error to remind them of the existence of the Supreme Court, to which the defendant could carry his case, if evidence offered in his behalf had been improperly rejected, and an appeal in consequence should become necessary. Such a remark, however well intentioned, was calculated to lessen, in the minds of the jury, the sense of their responsibility, and, at the same time,

convey the idea that the proof already before them was not sufficient to acquit the defendant."123

In the Federal courts, a rule obtains similar to that in the English courts. The rule is thus stated by Mr. Justice Gray: "Trial by jury in the courts of the United States is a trial presided over by a judge, with authority not only to rule upon objections to evidence and to instruct the jury upon the law,. but also, when in his judgment the due administration of justicerequires it, to aid the jury by explaining and commenting upon the testimony, and even giving them his opinion upon the questions of fact, provided only he submits those questions to their determination.”

The act under discussion was passed February 21, 1850. Its caption is as follows: "An act to prevent judges of the several superior courts in this State from making certain charges or giving their opinions to or in the hearing of the jury, and to define the same as error."

The first section provides "that it shall not be lawful for any or either of the judges of the several superior courts of this State, in any case, whether civil or criminal, or in equity, during its progress, in his charge to the jury, to express or intimate his opinion as to what has or has not been proven, or as to the guilt of the accused."

The second section provides that a violation of the provisions of the first section shall constitute reversible error.

The act as codified appears in section 4334 of the Civil Code of 1895.

It is worthy of observation, in passing, that had the body of the act literally followed the caption, the judges would have been prohibited from expressing an opinion on the law, as well as the facts. The draftsman of the caption must have had the provisions of the Constitution of 1777 before him, which made juries judges of the law, as well as of the facts, in both civil and criminal cases, but he weakened when he came to the body of the act, and left the judges the privilege of expressing their opinion on the law, but not on the facts.

1. Thompson on Charging the Jury, p. 53.

2. State v. Glass, 1 Ga. 476-487; Bell v. Maury, 3 Ga. 456-471; Potts v. House. 6 Ga, 324.

3. Monroe v. State, 5 Ga. 86.

4. U. S. v. Philadelphia R. R. Co., 123 U. S. Rep. 113.

At the time this act was passed, the Constitution of 1798 was in force. The provision of that instrument on jury trial was as follows: "Trial by jury, as heretofore used in this State, shall remain inviolate." " 1

In a case decided before the passage of the act, Warner, J., said of this provision: "The trial by jury contemplated by the Constitution is evidently a trial by a common law jury of twelve free and lawful men of the body of the county." "2

In another case, Lumpkin, J., said: "The provision in our State constitution that trial by jury, as heretofore used, shall remain inviolate means that it shall not be taken away, as it stood in 1798, when that instrument was adopted," 3 etc.

There can be no question that the practice that obtained in Georgia in 1850, and prior thereto, was the same as that "heretotofore used in this State" at the time of the adoption of the constitution of 1798.

Blackstone, who published his commentaries about thirtythree years prior to 1798, in his chapter on "Trial by Jury," says: "When the evidence is gone through on both sides, the judge, in the presence of the parties, the counsel, and all others, sums up the whole to the jury, omitting all superfluous circumstances, observing wherein the main question and the true issue lies, stating what evidence has been given to support it, with such remarks as he thinks necessary for their direction, and giving them his opinion in matters of law arising upon that evidence."

Independent of the effect of the words "as heretofore used in this State," it would seem that one of the common law incidents of "Trial by Jury" was "the privilege and duty of the court to comment upon the evidence, to pronounce upon its competency and to sum it up, and its right to express its opinion upon the facts proven." 5

It is a remarkable fact that, although this act has been before the Supreme Court of Georgia scores of times, and has proven 'the rock on which many admirable charges have split, yet, so

1. Cobb's Digest, p. 1125.

2. Jones v. State, 1 Ga. 66.

3. Steamboat Co. v. Foster, 5 Ga 207. 4. Cooley's Blackstone, Vol. 2, p. 234. 5. Holder v. State, 5 Ga. 442.

far as I am at present advised, I know of no case in which its constitutionality has been questioned; and yet, no less a personage than Mr. Joseph Choate has expressed a grave doubt as to the constitutionality of all such statutes; and our own former Chief Justice Bleckley has strongly condemned the statute, and more than intimated a doubt as to the constitutionality.

Various suggestions have been made as to the probable reasons that led to the passage of the act of 1850. In 1848 Mr. Justice Nisbet, in one of the cases already quoted, discussed the then existing English rule pro and con. He let fall an observation that throws a flood of light on the reasons that most likely influenced the legislature two years later to pass the act.

Speaking of the expression of opinion by the judge, he said: "It seems to me that it is particularly wrong, in view of the fact that, except in a few distinguished instances, the verdict of a jury cannot be reached for a finding contrary to the facts, by any corrective tribunal. Through the jury, therefore, the judge, as a general rule, is made irresponsible for his opinion on the evidence."

This statement of the then existing practice as to new trial on the ground that the verdict was contrary to evidence is borne out by a prior decision in 1847, and is thus stated:

"The rule for our guidance is clearly defined in the books, and is this: that the verdict will not be set aside as contrary to evidence when there has been evidence on both sides, and no rule of law violated, nor manifest injustice done, although there may appear to have been a preponderance of evidence against the verdict.'"

And also, in a subsequent case, decided in 1849, Stroud 2. Mays.2

The opinion in the case of Sparks r. Noyes, decided in 1879, and which is now codified as section 5585 of the Civil Code of 1895, furnishes a good illustration of legal evolution. By this section, sustained by an unbroken line of later decisions, not only can a judge "grant a new trial on the sole ground that the verdict is contrary to evidence," but when he does it, his discretion will not be controlled, unless it appear from the record that 1. Peek v. Land, 2 Kelly 16.

2. 7 Ga. 215.

3. 64 Ga. 437.