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The Bench and Bar of Georgia During the Eighteenth Century
Annual Address by Joseph R. Lamar
Before the Thirtieth Annual Session of the Georgia Bar Association, Warm Springs, Georgia, May Twenty-Ninth 1913
[Reprinted from Annual Report]
Gc 975.8 L16b 1369851
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The Bench and Bar of Georgia During the Eighteenth Century
Annual Address by Joseph R. Lamar
Before the Thirtieth Annual Session of the Georgia Bar Association, Warm Springs, Georgia, May Twenty-ninth 1913
[Reprinted from Annual Report]
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1369851
海心
J. R. Lano -
THE BENCH AND BAR OF GEORGIA DURING THE EIGHTEENTH CENTURY.
ANNUAL ADDRESS BY MR. JUSTICE JOSEPH R. LAMAR, OF THE SUPREME COURT OF THE UNITED STATES.
Mr. President and Gentlemen of the Georgia Bar:
Judge Bleckley, writing in the Oliver case, said that a lawyer should not be cut off from making his argument when his "address was warm in his bosom, alive and unde- livered, for it is not impossible that a sup- pressed speech may occasion more mental torture than a lost cause."
This strong language does not exactly apply to a case like mine, where, for several years, I have had on hand an article which I have myself suppressed because of a doubt as to whether its old-time subject would be of interest.
Your Committee, in inviting me to deliver an address on this occasion, were good enough to let me unburden my mind and get rid of this unpublished paper, foot-notes and all. It was intended to be printed and not for oral delivery ; but, taking advantage of the Committee's permission, I ask that you let me make a few verbal changes and read to you, as Georgia lawyers, a paper about a Georgia subject. You will find it wofully out of date, and yet it may be worth a place in your records, since it contains the results of investigation of documents obtained from London; search through the early records of Richmond County, and similar searches in Wilkes and Chatham, during recess hours, while in attend- ance on courts in those counties. But mainly, it represents the result of page by page investigation of the Colonial Rec- ords-that dullest but most valuable work recently published by the State. Governor Candler, the compiler ; his clerk, the printer and myself are, I suppose, the only persons who ever
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have or ever will go through those 21 volumes. The result of my search is less than a handful of grain. It may not be beaten into any logical narrative. But a fact here, a fact there, and another yonder may be artificially strung to- gether, and I hope that you will not find that the patchwork is altogether void, as containing matter different from that expressed in its title :
"THE BENCH AND BAR OF GEORGIA DURING THE EIGHTEENTH CENTURY."
Who was the first man who ever practiced law in Georgia ? We know the names of the first judges (2 C. R. 11) ; even the names of the first jury (1 Stevens' Hist. of Ga. 101), but who can give us the name of the first Georgia lawyer, , or indeed of any lawyer that practiced in the Colony prior to the Revolution ?
The natural place to find the answer to this question would be in the court records. They have been lost, and, consequently, it has been impossible to fully write of the Bench and Bar of Georgia in the 18th Century. But in 1904 the State began the publication of the Colonial Records and made available to the student of Georgia History the Journal kept by William Stephens, in Savannah; the Jour- nal kept by the Earl of Egmond in London and the hitherto unpublished Minutes of the Trustees in London ; the Minutes of the Commons House of Assembly, and of the Governor and Council, kept in Savannah from 1754 to 1774, and the Minutes of the House and Council at Savannah and Augusta during the Revolutionary period. The entries in those volumes are for the most part merely formal and must be pieced together and then fused into one in order to furnish the basis of a narrative. But from them all we get an im- pressionistic picture, if not a photographic reproduction, of life in the little Colony on the Savannah, which would be petty and local but for the fact that they tell of the Begin- nings of the Judicial System of a great State.
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In most of the colonies the courts developed according to the needs of the inhabitants. But the Trustees for the Es- tablishment of the Colony of Georgia did not wait to find out what was wanted, but before the colonists left London, organized a court with a full complement of officers and imposed a ready-made and most elaborate judicial machin- ery. So that when the "good ship Ann" sailed in 1732 with the "first sixty" as passengers, there was on board an undue proportion of the judiciary-3 judges, 2 tything men, 2 con- stables and a clerk.
Shortly after their arrival Oglethorpe determined to com- memorate the founding of Georgia by opening court. Ac- cordingly, on July 7, 1733, the Settlers met on the Bluff, the Commission was read, the Magistrates were inducted into office, court was opened, the first Georgia jury was impaneled and a case was tried. 1 Jones Hist. of Georgia, 151; 1 Stevens Hist. of Georgia, 101. Thus the first pub- lic event in Georgia was a judicial function. And "July 7th," was long celebrated in the Colony as "Anniversary of Court Day," being its July 4th, February 22d and Thanks- giving Day all in one .* The Court thus so strikingly inaug- urated was furnished with accompaniments most surpris- ing for a tribunal in the woods of a new settlement. The judges were supplied with "purple gowns trimmed with furr," and the Trustees purchased a "copper-gilt mace," costing the equivalent of $500, and a seal costing $150, or, together, five times the value of the log house in which court was held. They intended to give the judges a high-sound- ing title, and so they called them Bailiffs, after those bear- ing that name in an ancient English tribunal. In this they made a sad mistake, for from this now belittling title arose the impression that the court only had a petty juris-
*Stephens, under date of July 7, 1738, entered in his Journal (4 C. R. 167). "This being the Anniversary day whereon the first court was holden for the Town and County of Savannah, it was observed with the usual solemnity, when Mr. Whitfield preached a good sermon suitable to the occasion, after which the Court that stood adjourned was reopened, and a Grand Jury being sworn, a charge was giveu relating to criminal matters."
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diction .* As a fact it had all the power over life, liberty and property possessed by the Superior Court of the pres- ent day. This fact appears from the Commission which has never been published, but as a copy has at last been found in London, it may be worth preserving in your records, as being the very first document in the Judicial History of Georgia. (Appendix A.)
Upon examination it will be found that the court had the broadest general jurisdiction. It was constantly ex- ercised during the 20 years the Trustees retained their charter. Stephens, who represented them in Savannah, had graduated at Cambridge University, had studied law at the Inns of Court and had been a member of Par- liament. He was therefore much interested in matters of law, and consequently his diary contains frequent refer- ences to legal affairs. It shows that there was much litiga- tion on the court's civil side and an unusual proportion of criminal prosecutions. It was, however, as we learn from Judge Charlton's charming paper, "A Lawyerless Court."¡ The inhabitants therefore had, as Bishop Stevens says, "to follow the old Gallic custom and plead each man his own cause in person," even though there were one or two in the colony who knew something about law. One is referred to as a "pretended lawyer," and another as having been "bred a smatterer in law." 4 C. R. 61, 188, 423; 5 C. R. 62, 183, 188; 7 C. R. 98. Williamson is mentioned as having been "bred an attorney." He moved to Charleston, where Ogle- thorpe thought he had better remain because he could make
*"In the Mirror it is holden that the statute doth extend to everie justice, minister of the King, steward and all comprehended under this word baylifs. The cheife magistrates in divers ancient corporations are called baylifs, as in Ipswich, Yarmouth, Colchester, &c. And baylifs in French is diacetes, nomarcha ; in English, baylife or governor. But of this thus much shall suffice." Coke's Littleton, L. 3, C. 1, s. 248.
#For a part of the time this affirmatively appears from a statement made 1745 by William Stephens that "all of the Magistrates of Fredereka had been summoned to England as witnesses in the case of Col. Cook against Gen. Oglethorpe. And as divers felonies had been committed in the County of Fredereka, and there can be no trial because of the absence of the Judges, the officers in Savannah were in doubt as to whether they had jurisdiction and thought it expedient to take the opinion of some able lawyer as to how far they might safely proceed. We hav- ing no such gentlemen to advise us, and knowing that Captain Horton, by direc- tion from Gen. Oglethorpe frequently advises with Mr. Rutledge in intricacies of this nature, wherein the law is not clear, thought that his advice should be the rule to proceed by, rather than that such notorious crimes should go unpunished." 6 C. R. 144-146.
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more by practicing there than in Savannah. Nothing more is said of him until 1740 when Stephens recites that "Wil- liamson returned from Charleston and turned solicitor in a cause or two heard betwixt some of our Indian traders. But, being timely admonished, thought it safest not to appear as a pleader, though he confidently affirmed that he had the Trust's leave to practice as an attorney." 4 C. R. 618, 431, 443 ; 5 C. R. 177; 1 C. R. 41; 5 C. R. 257.
It seems, therefore, certain that during the government of the Colony by the Trustees there was no practicioner in Georgia and that the courts were not authorized to admit persons to the Bar. Indeed the absence of lawyers was given as one of the inducements for emigrating to the new colony. Those, however, who were already there and suf- fering from the Trustees' mistakes took a very different view of this fact, as appears from the "Narrative under Oath" signed by a majority of the male inhabitants of the colony. For it is there said "That the British Nation was deceived with the fame of a happy, flourishing colony and of its being free from that pest and scourge of mankind called lawyers-for want of whose legal assistance the mis- erable inhabitants were exposed to a more arbitrary gov- ernment than was ever exercised in Turkey or Muscovy." 1 McCall, 54, 2 Ga. Hist. Col. 204; 21 C. R. 326.
But while there were no lawyers, it does not follow that there were no lawsuits. Indeed, the scanty records and Stevens' Journal contain an undue proportion of references to court proceedings.
There were suits on notes, bonds, accounts, actions of trespass, ejectment and-no end of imprisonments for debt. The court even took cognizance of Ecclesiastical of- fences, and proceedings were instituted therein against Mr. Wesley for refusing communion to a member of the church and for other similar charges, as though there was a com- plete union of church and state and as if the Town Court of Savannah had the jurisdiction of the Court of Arches in England. 4 C. R. 19.
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But it was on the criminal side that business was most active, and as there was no practicing attorney the defend- ants represented themselves, the King being represented by the constable. Anyone who has ever seen a trial conducted by and before laymen will not be surprised to find that with the constable on one side and the defendant on the other, technical points were insisted on with vigor. For these early settlers did not seem to need the advice of an attorney to make points in order to escape being whipped on the bare back or hung by the neck until they were dead. For example, in one case, Hetherington, charged with a felony, demanded 20 challenges, according to the English law. The court refused it on the ground that in a new colony it would be impossible to find sufficient jurors to admit of so many challenges. The court "allowed him six, and a like number, if it was thought proper by the constable, on behalf of the King." There was a verdict of guilty and the prisoner next day wrote a letter to the magistrate, demanding an arrest of judgment and the judges delayed the sentence until they could get the opinion of the trustees, for, as appears from many entries in these records, the judges were recalled whenever the trustees thought proper. 4 C. R. 169-170.
These criminal proceedings had all of the common law accompaniments. There was the usual "pious fraud" of finding that the value of the property was less than a penny, so as to reduce the offence below a felony. In one case a woman was convicted of bigamy and in order to save her life she was given the benefit of clergy. Such leniencies, however, were rare, for usually the convictions were sure and the punishment heavy. Standing in the pillory, sitting in the stocks, whipping on the bare back were common, and at one session three men were convicted of murder, and two hung, and all without lawyers-or perhaps because they had no attorney.
But although the Trusts permitted no lawyer to practice in Georgia, they themselves had occasion for their services in England, both in formal matters and in heavy litigation.
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The Charter required the Board to submit its accounts an- nually to the Lord High Chancellor, the Chief Justice of England, the Chief Justice of the King's Bench and the Master of the Rolls. This brought the affairs of the colony to the attention of Lord Hardwick, by many thought to be the greatest of the English Chancellors. He made a con- tribution to the fund and showed great interest in the colony and when the Trustees decided (3 C. R. 87) to abandon Sa- vannah and make a new capital further South, they named it Hardwick, after him. Sir Joseph Jekyl, Master of the Rolls, and friend of Oglethorpe, also had occasion to ex- amine the accounts and made a contribution of 500£, the largest single gift made to the Trust. 3 C. R. 63, 13; 5 C. R. 252. In recognition of that fact Jekyl Island was named in his honor and he thereby acquired the permanent fame that comes to those after whom rivers, mountains and islands are called.
But the Trustees were not solely interested in making reports to admiring judges. They were several times sued and Colonel Oglethorpe secured the adoption of a resolution that they should "employ the Attorney General and Solici- tor General in all cases where the Trustees had occasion to be represented in legal proceedings." 1 C. R. 282, 285; 2 C. R. 150. In pursuance of this resolution, Ryder, Attorney General, afterwards Chief Justice of England, and William Murray, Solicitor General, afterwards Lord Mansfield, were retained.
There were four of these legal proceedings in England. We do not know who was counsel for the Trustees in the case brought by Bosomworth in right of his wife, claiming that as an Indian princess she was entitled to St. Cath- erine's Island, by virtue of the reservation in Oglethorpe's first treaty with her tribe. Major McCall, in his History of Georgia, says that the opinion of the best counsel in England was taken, and that the litigation was the most protracted and expensive ever known in America. The first hearings were before the Privy Council in London. It was then re-
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mitted to the Governor and Council in Georgia and resulted in a decree that Bosomworth should receive a large sum, in payment of which the St. Catherine's Island was ordered to be sold. 8 C. R. 85, 323.
The next case was brought against the Trustees, in the Court of King's Bench, by Rev. Mr. Norris, who claimed 800£ to be due him for ecclesiastical services rendered in Sa- vannah. The Trustees admitted the indebtedness of 70£ and passed a Resolution that-
Attorney Thomas Clendon be authorized to appear for Trustees on the first day of next term in King's Bench, in the cause commenced against the Trustees by Reverend Mr. William Norris, and later authorized him to employ counsel. 1 C. R. 467 ; 2 C. R. 103, 462. The Account book shows :
"1745 For charges in defending the Trust against the unreasonable demands made by William Norris £29:15:7
"1746 For charges in defending the Trust
against the unreasonable demands made
by Mr. William Norris, £ (29.15.7) and for the verdict, which was but 2.15.10, more than was offered him by the Trustees as his due
£99:15:7."
In other words, he recovered a verdict for $350, but the costs were $300. The case though for a small sum is of no little historical value, because it furnishes an early instance of a suit against a colony exercising high governmental power, being even authorized to make laws, engage in war and ratify treaties .*
*KING'S BENCH EASTER TERM 18 GEORGE II.
"Also of this Present Easter Term witness Sir William Lee, Knight
London William Norris Clerk puts in his place David Henriques his Attorney Agt. The Trustees for Establishing the Colony of Georgia in America in a plea of trespass on the Case.
London the said Trustees for Establishing the Colony of Georgia in America put in their place Edward Benton their Attorney in the plea aforesaid. London to wit Be it remembered that on Wednes- day next after fifteen Days from the Day of Easter this same Term came before our Sovereign Lord the King at Westminster William Norris Clerk by David Henriques his Attorney And then brought there into the Court of Our Sovereign Lord the King at Westminster his Bill against the Trustees for Establishing the Colony of Georgia in America being in the Custody of the Marshall &c And there are Pedges for the Prosecution to wit John Doe and Richard Roe which said Bill Follows in these words London to wit William Norris
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Another proceeding against the Trustees was heard in Parliament. Thomas Stephens, as the representative of a majority of the inhabitants of the colony, charged that the affairs of Georgia were mismanaged and the colony misgov- erned. The matter was regarded as of such importance that a public hearing was had before the House of Commons which permitted Stephens to speak for the Georgians and allowed the Trustees to be heard by counsel. They selected William Murray, who was then in the height of his fame as a lawyer. He needed to put forth his best efforts, for the vote was exceedingly close, 77 being for, and 88 against censuring the Trustees. It was, however, a technical if not a moral victory, and the Earl of Egmont sardonically enters in his journal that "Stephens is to be brought before the
Clerk complains of the Trustees for Establishing the Collony of Georgia in America being in Custody of the Marshall of the Marshalsea of Our Lord the King before the King himsen for that Whereas the said Trustees for Establishing the Colony of Georgia in America on the first day of May in the year of Our Lord One thou- sand seven hundred and Forty four at London aforesaid in the Parish of Saint Marys Arches in the Ward of Cheap were indebted to the said William in the sum Eight hundred pounds of lawfull money of Great Britain for divers religious and Ecclesiastical Offices in the Colony of Georgia by him the said William at the special Instance and request of the said Trustees for Establishing the Colony of Georgia in America before that time done and performed And being so Indebted the said Trustees for Establishing the Colony of Georgia in America in Consider- acon thereof afterwards to wit the same day and year last mentioned at London aforesaid in the Parish and Ward aforesaid took upon themselves and then and there faithfully promised that they would well and truly content and pay the said William the said sum of Eight hundred pounds when ever afterwards they should be thereunto required Yet nevertheless the said Trustees for Establishing the Colony of Georgia in America their several promises and undertakings to the said William in Form aforesaid made have in no wise regarded but contrived and fraudulently Intended him the said William in this respect craftily and cunningly to deceive and defraud of the several sums aforesaid have not paid the same or any part or parcell thereof to the said William Although They the said Trustees for Establish- ing the Colony of Georgia in America have Been by the said William afterwards to wit the same Day and year last mentioned and often afterwards at London aforesaid in the Parish and Ward aforesaid requested so to do But to pay or anywise content the said William for the same They the said Trustees for Estab- lishing the Colony of Georgia in America have hitherto altogether refused and still do refuse so to do whereby the said William is Damnifyed to the value of one Thousand pounds and Therefore he brings his suit &c." (The other common counts follow, but are omitted here. )
"AND the said Trustees for Establishing the Colony of Georgia in America by Edward Benton their Attorney come and Defend the Force Injury and Damages and whatsoever else they ought to Defend when and where the Court will consider thereof and say that they did not undertake in such manner and Form as the said William above complains against them And of this they putt themselves upon their country and the said William Does the Like Therefore lett there Come a Jury thereof before Our Sovereign Lord the King at Westminster on Monday next after the Morrow of the Ascension of Our Lord and who are in no wise related either to the said William or to the said Trustees for Establishing the Colony of Georgia in America to recognize and make a Jury of the Country between the said Parties Because as well the said William as the said Trustees for Estab- lishing the Colony of Georgia in America between whom is the matter in variance have thereof submitted themselves to the Jury the same Day is given to the sald parties here."
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House to-morrow on his marrow-bones and reprimanded from the chair," and on June 30, 1742, he enters (5 C. R. 640), "This day Thomas Stephens was according to order, brought to the Bar, where on his knees, the Speaker severely reprimanded him and it is ordered he be discharged, paying his fee."
But the last, and, historically speaking, the most inter- esting proceeding against the Trustees in London is one of much more modern flavor. It grew out of the fact that Georgia had passed an Act making it unlawful for Carolin- ians to trade with Indians west of Savannah without license. Carolina attacked the act as void. There was a hearing be- fore the Board of Trade and Plantations, the predecessor of the modern Privy Council on an application for an order in the nature of an injunction to prohibit the enforcement of the Georgia statute. Georgia was again represented by Murray and also by Attorney General Ryder. He had pre- viously given an opinion* that a Carolina statute requiring Virginians to get a license to trade with Indians was void as denying Virginians the right of an Englishman to trade wherever he desired. This opinion was probably quoted
*** The difficulties imposed upon the inhabitants of Virginia will amount to a total prohibition of their trade since every Virginia trader will be obliged to travel near five hundred miles out of his way, in order to obtain a Carolina license, for he must be personally present in Charleston to enter into bond ere he can purchase that favor. Chalmer's Opinions, 594.
Either in ignorance, or disregard of this Opinion, the Georgia Trustees passed an act similar to this old Carolina Statute and prohibited all persons from trading with the Indians in Georgia unless licensed at Savannah on payment of 5£ per annum. At that time the Indian trade at and from Augusta was very ex- tensive, and the Carolinians were very largely interested in the business. The matter was referred to the Board of Trade and Plantations, which requested Ryder (afterwards Chief Justice) and Strange (Editor of Strange's Report) to give an Opinion on the validity of the Georgia Statute. It was as follows :
To the Right Hon. the Lords Commissioners for Trade and Plantations.
My Lords : We have considered the QUAERIES sent to us by your Lordships, in Mr. Popple's letter of the 21st, of June last, the first of which is, whether the act of the trustees of Georgia, or of any assembly, passed in the colonies abroad, and confirmed by the Crown, can grant to any of the said provinces an exclusive trade with the Indians dwelling within the respective provinces.'
And, as to that, we are of opinion that as an absolute exclusive trade with the Indians would be destructive of that general right of trading which all his Majesty's subjects are entitled to ; and, therefore, repugnant to the laws of Great Britain, no act of the trustees of Georgia, or of any assembly passed in the colonies abroad, confirmed by the Crown, can grant to any of the said provinces, an exclusive trade with the Indians dwelling within the respective provinces, though the method of trading within each respective province may be regulated by the laws thereof.
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