Page:The Green Bag (1889–1914), Volume 04.pdf/37

 22

"There is a clear and practical distinction be tween ignorance and mistake of the law. Much of the confusion in the books, and in the minds of the professional men, upon this subject, has grown out of a confounding of the two. It may be conceded that at first view the distinction is not apparent; but it is insisted that upon close inspection it be comes <mite obvious. It has been ridiculed as a quibble, but we shall see it has been taken by able men, and acted upon by eminent courts. Igno rance implies passiveness; mistake implies action. Ignorance does not pretend to knowledge, but mistake assumes to know. Ignorance may be the result of laches, which is criminal; mistake argues diligence, which is commendable. Mere igno rance is no mistake; but a mistake always involves ignorance, yet not that alone. The difference may be well illustrated by the case made in this record. If the plaintiff, the administrator, had refused to pay the distributive share in the estate which he represented, to the children of his intestate's de ceased sister, upon the ground that they were not entitled in law, that would have been a case of ignorance, and he would not be heard for a mo ment upon a plea that, being ignorant of the law, he is not liable to pay interest on their money in his hands. But the case is, that he was not igno rant of their right in law, but believed that the defendants were entitled to their exclusion, and acted upon that belief, by paying the money to i them. The ignorance, in this case, of their right, j and the belief of the right of the defendants, and action on the belief, constitute the mistake. The distinction is a practical one in this, that j mere ignorance of the law is not susceptible of ' proof. Proof cannot reach the convictions of the 1 mind, undeveloped in action; whereas a mistake of the law, developed in overt acts, is capable of proof, like other facts." His associate, Judge Warner, has referred to his decision in Wilder v. Lumpkin, 4 Ga. 208, holding a retroactive statute void, as one of his ablest judgments. In Moody v. Davis, 10 Ga. 410, he thus describes the relation of the bar to the bench : "As officers of the court, the duties of coun sel are not in conflict with those that de volve upon them as the representatives of a party. They are the friends of the Court, en listed with him in the sublime work of dis

covering the truth, and dealing out justice between man and man. It is not the duty of counsel to suggest points of law which are against his client; but it is his duty to insist upon no point which he knows to be contrary to the law. Whilst judgment alone belongs to the judge, enlightenment is the province of the lawyer; and I apprehend that no judge can be found so presumptuously vain or so flagrantly unjust as not to recognize, and that too with grateful emotions, the aid which he derives in the discharge of his duties, more solemn than belong to any other func tionary, from an able bar." This is not ex celled in its simple force by the description of D'Aguesseau, in which he declares that the bar is " placed for the public good be tween the throne of justice and the tumult of human passions;" nor by the splendid tribute which Mr. Justice Harlan in his re sponse at the Centennial Celebration of the Supreme Court paid to the services of the bar in the aid which their arguments had rendered in the adjudications of that great tribunal. I have said that Judge Nisbet's opinions were often quoted. In one notable case it appears that due credit has hardly been given him. As the instance may raise a delicate question as to the extent to which judicial appropriation may go, it will be interesting to bring out the precise facts. In the case of Mitchum v. The State, 11 Ga. 615, Judge Nisbet discusses the effect of the argument by counsel upon facts not in evidence before the jury. In the case of Tucker v. Henniker, 41 N. H. 317, the New Hampshire Court deal with the same subject and reach the same conclusion. The opinion is deliv ered by Judge Fowler. At the close of the opinion the latter cites Mitchum v. The State in words and figures only, but in no other way does he give credit to that decision. The deadly parallel column will show the simi larity of language used. The unimportant changes and omissions are sufficient to pre clude the idea that quotation marks were in tended to have covered the language, and