accepted as "trespass' or "conversion." But it will be generations before this is so complete that we can reason safely without invoking the earlier generalizations. Hence the importance of understanding at least the common law terms, even where the new practice has superseded the old. It is by the force given these terms to-day that we determine which of the rules of detinue or trover, of covenant or assumpsit, of trespass or case, have been abolished along with these actions and which of them are still to be held for substantive law.

It would be easy to multiply examples, showing that the substantive law has been created by the pleader. In criminal law the definitions of what we call common law crimes come to us not from ancient legislative enactment, but as crystallizations from successive indictments, charging the "ultimate facts" constituting the crime. We need only to turn to the Code and read the definition of simple larceny, fifteen words long, admitting no doubt as to meaning, and then read the definitions of larceny after a trust delegated, covering several pages, to emphasize the difference between structure resulting from ages of evolutionary growth and direct legislative creation.

Again, even in strict Code States there exist indispensable rules regulating the joinder of actions, marking off some six or seven kinds that may not be united. This proves, at least, that the diverse forms of actions were founded in difference of subject-matter, and were not mere pleader's distinctions, and is a confession that a single formula will never serve alike for the enforcement of all legal rights. So long as the legal conceptions of contracts and torts, for instance, differ as they now do, just long will they require separate forms of actions. The abolishing of old forms does not do away with forms, but it at least leaves a clear field for the construction of new ones.

Thus we see that the fundamental principles of the science of pleading are still all-important in the administration of justice under the modern system. Those principles must also govern the development of new forms and rules adapted to the present state of the substantive law.

1

in

Standard works on Code Pleading now contain nearly five hundred forms of petitions alone.

APPENDIX Q.

A LAWYERLESS COURT.

PAPER BY WALTER G. CHARLTON, of Savannah.

The delightful and helpful relations existing between the bench and bar in our day contribute so much to the charm of professional life, that it may not be uninteresting to turn for a moment from the serious and weighty matters of jurisprudence to recall the time when the good people of Georgia considered it necessary to quarantine their court against lawyers. The movement was a success in that the bench escaped the infection of law for many years. The more we study the career of Oglethorpe, the more we are impressed with the broad greatness of his spirit and the long reach of his practical and businesslike intellect. The military dispositions he made are above criticism, and his skill in dealing with the Indians suggests the highest prac tice of statesmanship. If courts, as we understand them, occurred to him and the trustees as expected adjuncts to a theoret ical government, their practical philanthropy doubtless took into account the tender sensibilities of many of the colonists, fresh from the debtor's prisons of England, in whose presence it might be indelicate to insist on the law and to whose hearing the machinery of the law would hum with positive cruelty. They had had enough of law and lawyers, and our distinguished predecessor in citizenship as, like Tityrus of old, he reclined at length beneath the grateful shade of the straight-stemmed pine, listening to the sea-sprites crooning in their swaying tops, doubtless felt that the shifting melodies of the mocking-bird were more in accord with his present fancy than the alluring eloquence of the barrister or the artful wooing of the special pleader. Hav

ing been all things to all men in all times the lawyer had come to be in the wilds of Georgia a plain and transparent Grecian horse, his thick sides swelling with painful possibilities for the peaceful Troy before whose gates he had been opportunely stayed. And thus it was solemnly concluded that Georgia could and would afford to do without lawyers and, incidentally, without law, taking its justice in drastic doses from a court which was at once lawyerless and lawless. It was a scoffing denial-the colonists in Savannah bragging that there were no lawyers there and the staid Salzburger from the swamps of Effingham lifting up his rejoicing voice that with them dwelt neither lawyers, courts, nor Rum-a juxtaposition of terms, expressed with an irritating capital, which, whilst doing great injustice to a sober calling, gravely reflected upon the habits and yearnings of the dweller in Yamacraw. When last heard from Effingham was still dry and Chatham wet. It may be remarked here-although it has not the slightest bearing upon the subject in hand-that the Savannah colonist always contended that the waters of the Savannah river needed "qualification." What the explanation is now since the adoption of artesian has not been made public.

On July 7, 1733, at the close of a hot summer day which had been devoted to feasting and thanksgiving and patriotism, the first court was organized in Georgia, presided over by Bailiffs George Symes, Richard Hodges, and Francis Scott-Noble Jones being recorder and Richard Cannon and Joseph Coles, constables. In order to test the working order of this piece of governmental machinery a case was then and there tried. What was at issue and how determined will never be known and would scarcely lighten the labors of the toiling judiciary of the present day if disclosure could be made. The idea was unique, climaxing a celebration with a law case, forgetful of the wisdom of old Francis Quarles, who counselled that we "use Law and Physicke only for necessity; they that use them otherwise abuse themselves into weake bodies and light purses; they are good remedies, bad businesses, and worse recreations." Although it lacked somewhat in style and appurtenances-this infant tribunal was