Page:The Green Bag (1889–1914), Volume 04.pdf/85

 68

they should not give themselves up to guidance and direction of their feelings and sentiments; for this would unquestionably lead to excessive irreg ularity, fluctuations, and doubt. They would then realize that the fame which follows is better than that which goes before, and would avoid the su preme folly of mistaking the plaudits and shouts of the multitude of their contemporaries for the trumpet of fame. Loyalty to the law and rigid adherence to the rules it prescribes is, to the en lightened magistrate, the plain path of duty, and in pursuing it he can fall into no error nor run into any kind of danger." Judge Hall found himself in one case in a close place. Section 217 of the Code of Georgia provides that "a unanimous decision of the Supreme Court cannot be reversed or materially changed except by a full bench, and then after argument had in which the decision, by permission of the court, is ex pressly questioned and reviewed; and after such argument the court, in its decision, shall state distinctly whether it affirms, re verses, or changes such decision." It seems that in one case a full bench laid down an opposite rule to one established by a former decision, without counsel citing, or the court noticing, the former ruling; and when the question was presented by a third case whether the first or second de cision was the law, there were only two judges on the bench, and the question was left for determination by a full court. Judge Hall stated the dilemma thus : — "To guard against misapprehension, it maybe well to state that where a principle has been set tled by a unanimous judgment of a full court, and afterwards the reverse of it is laid down as correct by a like unanimous judgment of a full bench, without an observance of the conditions prescribed by this section of the Code, or without any ref erence to the first judgment, as sometimes un avoidably happens, we do not intimate an opinion as to which ruling, the first or last, we would be obliged to follow, were this point raised and insisted upon." The maxim stare decisis has a new mean ing when judges thus come to stare at their

decisions; but the predicament is not so bad, after all, as that of two other courts men tioned by John M. Shirley, in an address before the American Bar Association (Sixth Report, p. 208) : — "Elliott v. Stone, 12 Gushing, 174, was decided at the October term, 1853, Chief-Justice Shaw delivering the opinion. The same case, between the same parties, was decided at the October term, 1854. The facts, in both cases, are precisely the same, with a single exception, and that is ex pressly stated in the last opinion to be immaterial. The two decisions are directly in the teeth of each other. The last opinion contains no reference whatever to the former one; but it is evident that the court had entirely forgotten both the former case and the opinion. "Not to be outdone, Mr. Justice Bell, a judge of great learning and ability, in Hazeltine v. Colburn, 31 N. H. 466, decided the same point both ways in the same opinion, to the great bewilder ment of succeeding judges." James Jackson was a man of acute and vigorous intellect, but the secret of his power was in his heart. He was full of affection, sympathy, and re ligious zeal. "In Israel's Court there sat no Abcthdin Of more discerning eyes or hands more clean." He was a grandson of James Jackson, who in the early history of the State resigned his seat in the United States Senate, and came home to antagonize and expose the "Yazoo fraud." He was Governor when that result was accomplished, and by con centrating the sun's rays through a glass, "called down the fire from Heaven " to con sume the infamous bill. By right of inherit ance there came to Chief-Justice Jackson that hatred of fraud, covin, and deceit, that enthusiastic love of justice, which breathes through his decisions. He was the most eminent layman of the church to which he belonged, and a lay preacher as well. His successor in the office of Chief-Justice aptly said of him and his judicial work : —