A Nice Little Rant on Oldies-not-Goodies from Georgia Supreme Court Justice Joseph Lumpkin (1853)

From Lowe v. Morris (Ga. 1853), which considers whether a writ of error  issued by the Clerk of the Court should be dismissed on the grounds that it erroneously failed to include the seal of the Court. The rules of the court required clerks to include such a seal, but didn’t prescribe the consequence if the rules weren’t followed. The majority said that the writ remained valid:

The question is not, whether the parties to whom the writ of error was directed could be punished for not obeying it, because not in conformity with the rule; but the question is, whether the party applying for this writ of error, issued by the Clerk of this Court, shall be deprived of his constitutional right, merely because our own officer has omitted to put the seal of the Court to the writ, as directed by the rule? … The rule does not declare, that a writ of error issued in any other manner than that prescribed by the rule, shall be null and void ….

In my judgment, the rule is merely directory to the Clerk as to the manner in which writs of error issued by him shall be authenticated, and if he violates its provisions, it is an irregularity, which may subject him to personal peril and responsibility, but will not deprive the party of his constitutional right to be heard in this Court, as to the matters involved in the record which has been sent up here in obedience to our own mandate, attested by the official signature of our own officer, merely because he has failed to obey the direction of our rule of practice, in attaching the seal of the Court to the writ of error, which is in all other respects perfect.

Justice Joseph Lumpkin add a long, amusing, and somewhat rambling concurrence, including this passage; I quoted it on the blog back in 2008, but I just came across it again and thought I’d pass it along, in somewhat more detail:

For myself, I am free to confess, that I despise all forms having no sense or substance in them. And I can scarcely suppress a smile, I will not say “grimace irresistible,” when I see so much importance attached to such trifles. I would cast away at once and forever, all law not founded in some reason—natural, moral, or political. I scorn to be a “cerf adscript” to things obsolete, or thoroughly deserving to be so. And for the “gladsome lights of jurisprudence” I would sooner far, go to the reports of Hartly, (Texas,) and of Pike and English, (Arkansas,) than cross an ocean, three thousand miles in width, and then travel up the stream of time for three or four centuries, to the ponderous tome of Sidenfin and Keble, Finch and Popham, to search for legal wisdom. The world is changed. Our own situation greatly changed. And that Court and that country is behind the age that stands still while all around is in motion.

I would as soon go back to the age of monkery—to the good old times when the sanguinary Mary lighted up the fires of Smithfield, to learn true religion; or to Henry VIII. the British Blue-Beard, or to his successors, Elizabeth, the two James’s and two Charles’s, the good old era of butchery and blood, whose emblems were the pillory, the gibbet and the axe, to study constitutional liberty, as to search the records of black-letter for rules to regulate the formularies to be observed by Courts at this day.

I admit that many old things may be good things—as old wine, old wives, ay, and an old world too. But the world is older, and consequently wiser now than it ever was before. Our English ancestors lived comparatively in the adolescence, if not the infancy of the world. It is true that Coke, and Hale, and Holt, caught a glimpse of the latter-day glory, but died without the sight. The best and wisest men of their generation were unable to rise above the ignorance and superstition which pressed like a night-mare upon the intellect of nations.

And yet we, who are “making lightning run messages, chemistry polish boots and steam deliver parcels and packages,” are forever going back to the good old days of witchcraft and astrology, to discover precedents for regulating the proceedings of Courts, for upholding seals and all the tremendous doctrines consequent upon the distinction between sealed and unsealed papers, when seals de facto no longer exist! Let the judicial and legislative axe be laid to the root of the tree; cut it down; why cumbereth it, any longer, courts and contracts? …

And a bit more from Justice Lumpkin on why in particular he thought the seal was obsolete:

The truth is, that this whole subject like, many others, is founded on the usage of the times, and of the country.… The only reason ever urged at this day, why a seal should give greater evidence and dignity to writing is, that it evidences greater deliberation, and therefore should impart greater solemnity to instruments. Practically we know that the art of printing has done away with this argument. For not only are all official, and most individual deeds, with the seals appended, printed previously, and filled up at the time of their execution, but even merchants and business men are adopting the same practice, as it respects their notes.

Once the seal was every thing, and the signature was nothing. Now the very reverse is true: the signature is everything, and the seal nothing. Thanks to the advancing intelligence of the age! In the days of ignorance, to be able to read and write, would save a felon’s neck. Many of the educated gentry now, who are too lazy to work, and prefer to live by their wits, are the fellows upon whom the penalties of the law are visited in their utmost severity.

So long as seals distinguished identity, there was propriety in preserving them. And as a striking illustration, see the signatures and seals to the death warrant of Charles the First, as late as January, 1648. They are 49 in number, and no two of them alike. But to recognize the waving, oval circumflex of a pen, with those mystic letters to the uninitiated, L. S. [locus sigilli, literally “place of the seal,” used instead of a physical seal -EV] imprisoned in its serpentine folds, as equipotent with the coats of arms taken from the devices engraven on the shields of knights and noblemen; shades of Eustace, Roger de Beaumont, and Geoffry Gifford, what a desecration! The reason of the usage has ceased; let the custom be dispensed with altogether….