The
State wanted to divide the case and try the principals separately.
Father and son were charged with murder. The defense objected, but was
overruled by the Court. General Toombs then sprung the point that Judge
Pottle was not qualified to preside, on the ground of a rumor that he
had selected the men of the jury panel instead of drawing them. Toombs
further argued that the Court was not competent to decide the question
of fact. Judge Pottle vacated the bench and the clerk of court called
Hon. Samuel H. Hardeman to preside. Toombs and Benjamin H. Hill, his
assistant, contended that the clerk had no right to appoint a judge.
Judge Hardeman sustained the point and promptly came down, when Judge
Pottle resumed the bench and continued the case--just the result that
Toombs wanted. This case attracted immense comment, and in the
Constitution of 1877 a provision was made, growing out of this incident,
providing for the appointment of judges _pro hac vice_.

He was a bitter enemy to anything that smacked of monopoly, and during
the anti-railroad agitation of 1879-80, he said: "If I was forty-five
years old I would whip this fight." Still, he was an exceedingly just
man. Linton Stephens, noted for his probity and honor, said he would
rather trust Robert Toombs to decide a case in which he was interested
than any man he ever saw.

During the last five years of General Toombs's life he was seldom seen
in the courtroom. He was sometimes employed in important causes, but his
eyesight failed him, and his strength was visibly impaired. His
addresses were rather disconnected. His old habit of covering his points
in great leaps, leaving the intervening spaces unexplained, rendered it
difficult to follow him. His mind still acted with power, and he seemed
to presume that his hearers were as well up on his subject as he was.
His manner was sometimes overbearing to the members of the bar, but no
man was more open to reason or more sobered by reflection, and he was
absolutely without malice. He was always recognized as an upright man,
and he maintained, in spite of his infirmities, the respect and
confidence of the bench and bar and of the people.

Chief Justice Jackson said: "In the practice of law this lightning-like
rapidity of thought distinguished Toombs. He saw through the case at a
glance, and grasped the controlling point. Yielding minor hillocks, he
seized and held the height that covered the field, and from that
eminence shot