USA > Georgia > A history of Georgia : from its first discovery by Europeans to the adoption of the present constitution in MDCCXCVIII. Vol. I > Part 17
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The forming of statutory codes requires peculiar wis- dom ; but the " animation " of those laws, the giving to them life and activity, demands other qualities-the calm judgment, the strong will, the firm hand, the quick eye, and that weight of dignity and uprightness of character which command respect, and ensure obe-
217
TOWN COURT ESTABLISHED.
dience. " For," as Lord Bacon well observes,1 " the wisdom of a law-maker consisteth not only in a plat- form of justice, but in the application thereof, taking into consideration by what means laws may be made certain, and what are the causes and remedies of the doubtfulness and uncertainty of law; by what means laws may be made apt and easy to be executed, and what are the impediments and remedies in the execu- tion of laws." The Trustees, debarred by the char- ter from having any personal interest in the colony, other than as its public managers, had no other motive to govern them in erecting this " platform of justice," than the sincere desire to benefit those committed to their care. They were competent to make laws, hav- ing the requisite wisdom, intelligence, and expe- rience ; but, separated three thousand miles from the territory they governed, they were not able to apply their laws with that aptness and ease which would have made them sit well upon the people, to whose tempers and necessities they should have been care- fully fitted. Their primary scheme of government was of the simplest kind, and unlike any that had been previously established in America. Before the first embarkation sailed, they appointed from among the emigrants, officers for the new town, consisting of three bailiffs, a recorder, two constables, two tithing- men, and eight conservators of the peace .? At the same time they erected a court of judicature, in which " all manner of crimes, offences, pleas, processes, plaints, actions, matter, causes, and things whatever, arising or happening within the province of Georgia, or between persons inhabiting or residing there,
1 Bacon's Works, vol. i., Introduc-
2 Minutes of Common Council, i. 15. tory Essay, xxvi. : London, 1838.
218
JUDICIAL POWER OF BAILIFFS.
whether the same be criminal or civil, or whether the said crime be capital or not capital, and whether the said pleas be real, personal, or mixed, are to be tried according to the laws and customs of the realm of England and of the laws enacted for the said prov- ince."3 This tribunal, known by the name and style of the " Town Court," was composed of the three bail- iffs, the recorder acting as clerk ; and freeholders only were admitted as jurymen. It was opened with due form by Oglethorpe, on the 7th of July, 1733, when the first case was tried, and the first jury in Georgia empannelled.
The conferring of such civil and judicial powers upon a bailiff's court, was as unsound in law as it was unique in practice. The French bailiff, from whom our officer and name is borrowed, was the prefect of a province, administering justice within one of the seve- ral districts pertaining to each of the eight parliaments of that kingdom. In England the term and office have various significations and various powers, but none an- swering to the character of the officers styled such in Georgia.4 The bailiffs of Savannah and Frederica, like those of Scotland, were empowered by the Trus- tees, as proprietors of Georgia, to give enfeoffment ; and like them were magistrates of burghs. They had more judicial power than the English bailiff of hun- dreds ; they had a different power from that possessed by the bailiff of courts baron ; and though, to this day, in some parts of England, the chief magistrate of par- ticular towns is styled bailiff, yet he exercises no
3 Journal of Trustees, ii. 319.
4 Tomline's Law Dictionary, article Bailiff. Dr. Cowel's " Interpreter of
Words and Terms, used either in the Common or Statute Laws," &c .; Lon- don, folio, 1701, sub. Bayliff.
219
GREAT POWER OF THE TOWN COURT.
such civil or judicial jurisdiction as did the bailiff of Savannah.5
It was giving large powers to men with humble titles ; and though it is the power, and not the title, which confers greatness, yet the majesty of law, and the dignity of the colony, demanded that its executive officers should bear a name more linked with the nobler offices of state and the higher tribunals of jus- tice, than with a sheriff's court or a baronial steward. In England these minor courts communicated with others of larger jurisdiction, and these again with others of still greater power, ascending gradually from the lowest to the supreme courts ; the course of justice, as Blackstone happily describes it,6 "flowing in large streams from the king as the fountain, to his superior courts of record, and then subdivided into smaller channels, till the whole and every part of the kingdom were plentifully watered and refreshed." But the Town Court of record of Savannah had no communica- tion with a higher-it was itself supreme, blending in one tribunal the several powers usually lodged in common pleas, chancery, probate, nisi prius, sheriff's, coroner's, and exchequer, and all committed to men unread in the principles of law, and unversed in the usages of courts. As for some years there was no lawyer in Georgia, every suitor, as in the old Gothic courts, was obliged to appear in person to prosecute or defend his cause.
The common law of England was the groundwork of all judicial proceedings, except so far as certain provincial necessities made other laws necessary ;
5 It is observable that all the corpo- as heads or assistants in municipal rations in the county of Surrey, where affairs.
Oglethorpe resided, had bailiffs, either
6 Commentaries, book iii. chap. iv.
220
UNHAPPY SELECTION OF OFFICERS.
which new enactments of the Trustees had, however, no force or legality until they had received the sanc- tion of the king in council.
But while the colonists were nominally vested with the fundamental rights of Englishmen, the guardian- ship of those rights was entrusted to hands unaccus- tomed to poise the scales of justice. In making their first selection of officers, the Trustees were compelled to do it upon slight knowledge of the individual's character, appointing them rather on probation than for permanency, which gave rise to frequent changes and unhappy wranglings.
During the earlier years of its existence, the civil gov- ernment of Georgia was mostly vested in Oglethorpe as the executive and representative of the Trustees, though without any formal commission or official title. While Oglethorpe therefore was in Savannah, the power of the bailiffs was merged in him; his views were their guide, and his decisions their law. But his residence was an intermittent one, and at his second return to Georgia he was seldom there; and then it was that the evil of the magisterial system of the Trustees became apparent. Forced, as the Trustees were, to support the colonists for several years, they erected for that purpose a dépôt for provisions, and stored in it such supplies as they sent to Savannah. This was placed under the care of Mr. Causton, the second bailiff, whose office it was to deal out the monthly supplies to the proper recipients, and to purchase such articles as were needed for their sustenance. He was the commercial agent of the Trustees, and his position as their storekeeper, joined to his office as second bailiff, placed him at the head of power in Georgia. That power he soon exhibited by grasping
221
CHARACTER OF CAUSTON.
the entire control of affairs; and he made the other magistrates subservient to his will by giving or with- holding supplies at pleasure, and making such repre- sentations to the Trustees as he chose concerning his associates. Arrogant in his behaviour, aping a dignity which he could not sustain, and browbeating all whom he dared to put down, he soon played the part of dic- tator and tyrant in the infant colony ; and as all were more or less dependent on him for their support, he ruled Savannah with a domineering haughtiness, as of- fensive as it was oppressive to the public. Complaints of the most serious kind were soon made against him. "He proves," says the Rev. Mr. Quincy,7 "a most in- solent and tyrannical character." "He became," writes another,8 " a dictator whose will and pleasure were the only laws of Georgia." He ruled the people through their necessities, making their daily wants the means of keeping them in subjection to his will ; and yet so carefully covered up his arbitrary proceedings from the scrutiny of the Trustees, that, though petitions and remonstrances were sent to them relating to his con- duct, and though even the grand jury, breaking at last, by a bold effort, through the trammels which he had thrown around the administration of justice, made a solemn representation to the Trustees of the illegal conduct and dangerous power of Causton; yet all failed of procuring immediate redress, though it excited in- quiry among the Trustees, and led to a closer examina- tion of his large accounts. These they found confused and incorrect ; and the more they were examined, the more apparent became his wasteful expenditures, his partial disbursements, and his absolute deficits in goods
MS. Letter to Hon. Samuel Quincy
of Boston, Oct. 23, 1735. Letter-book
Mass. Hist. Soc., xii. 10.
8 Geo. Hist. Coll., ii. 201.
222
CAUSTON DISMISSED FROM OFFICE.
and money. The investigation resulted in an order from the Trustees to remove him from office. Accord- ingly, on General Oglethorpe's return to Georgia, " he called all the inhabitants together at the town house, and there made a pathetic speech to them, setting forth how deeply the Trust was become indebted by Mr. Causton's having run into so great exceedings beyond what they had ordered." "This," says the honest chronicler of the fact,9 " had such an effect, that many people appeared thunderstruck, knowing not where it would end; neither could the most knowing determine it."
The next day Mr. Causton was dismissed from office, Oglethorpe requiring from him a bond, and an assign- ment of his improvements at his beautiful residence at Oakstead, as security for his appearance to answer the charge of fraud and embezzlement. Ordered to Eng- land by the Trustees, he reached London after many delays, and attended the common council in person ; but failing to produce proper vouchers for his accounts, he was directed to return to Savannah, where, as he said, he could more easily arrange them. He sailed for Georgia at the close of the year, but died on his passage, and was buried in the great tomb of the ocean.
The displacement of Causton removed one great evil to make way for several lesser ones; for the new officers were inefficient, quarrelsome, and disposed to make the interests of the public subserve their private aims. The Trustees did what they could to give dig- nity and authority to the bench of magistrates, and well knowing the respect which is inspired by the badges and trappings of office, sent over magisterial gowns : those for the three bailiffs being purple, edged with
9 Stephens's Journal, i. 306-7.
223
MAGISTRATES SIT IN ROBES.
fur, and that for the recorder being black tufted.10 But even this favour of the Trustees was made a mat- ter of disputation among the mag istrates, so that it was nearly three months before they could agree to put on their robes of office when sitting on the bench ; but when they did wear them the effect designed by the Trustees was immediately secured, for the business of the court was " carried on with great order and deco- rum, such as they had not seen a great while."11 But these robes of justice, while they gave a more imposing aspect to the court, could not cover up the moral defi- ciencies so manifest in the character of the men who composed it, but rather made more glaring the dispar- ity between the dignity of the office, and the unwor- iness of the incumbent.
When Frederica was settled, a similar court was es- tablished there, and its officers excelled in injustice and ignorance the magistrates of Savannah. Some of the bailiffs appointed could not write, and scarcely one was qualified for the bench. The power was too great for the irresponsible hands that wielded it ; for, having never before held the staff of office, they be- came intoxicated with their elevation, and used their little brief authority like so many autocrats in minia- ture.
They were charged with setting aside the laws of England, making false imprisonments, wrongfully dis- charging grand juries, threatening petit juries, blas- phemy, irreverence, drunkenness, obstructing the course of law, and other equally grave and heinous offences. Indeed, the frequent courts, the arbitrary adjournments, the bickering of the magistrates, the
10 Minutes of Common Council, ii. 99.
11 Stephens, i. 83.
224
TRUSTEES CHANGE THE GOVERNMENT.
illegal proceedings, the insufficient securities, the want of proper juries, and the supplanting of justice by pri- vate piques and personal prejudices, made the whole system of the town courts, both at Savannah and Frederica, a burden to the people, giving them the shadow of English law without its substance, and compelling them to bow to decisions which, under the name of justice, were but mocking insults to that priestess of human rights.
The picture of these times, which the secretary for Georgia has so fully delineated in his journal, shows the sad condition of the colony, and the racking feuds and general distrust which reigned throughout the province.
This scheme of government having failed, the Trustees resolved to change it; and in January, 1741, a committee consisting of the Earl of Eg- mont, the Earl of Shaftesbury, Mr. Vernon, and the several Trustees who were members of Parliament, were appointed to digest and prepare a plan and instruction for remodelling the government, and in- stead of a bailiff's magistracy, establishing a consti- tution, to be administered by a president and several assistants. Conformably to the report of this commit- tee, the common council, (15th April, 1741,) divided the province of Georgia into two counties; one, to be called Savannah, including all the territory north of Darien ; the other, to be called Frederica, comprising St. Simons, and the Altamaha settlements. Over each of these there was to be a president and four assistants, who were to constitute the civil and judicial tribunal of their respective departments. For the county of Savannah, the Trustees appointed William Stephens President, and Henry Parker, Thomas Jones, John
225
NEW GOVERNMENT COMMENCED.
Fallowfield, and Samuel Mercer, Assistants. No ap- pointments were made for the county of Frederica, the council waiting until they could communicate with Oglethorpe and receive his nominations.
The instruments containing this new constitution, and these appointments, were read in open court on the 7th of October, 1741, and on the 12th the new officers, having met for the first time, took upon them- selves the administration of government.
This was an advance on the former plan, and gave an elevation and dignity to the colony in the eyes of her neighbours; but Georgia herself received little benefit by the change. The reason was, that society did not possess those element's of refinement and civilization upon which a good government could lay hold, and by them elevate and dignify the whole people. It lacked unity, morality, industry, and social integrity ; and where these are wanting, there will always be degradation and misery, no matter how wise the laws or how just their administration. A virtuous people will flourish under bad government ; an immoral society will display its wretchedness under the wisest administration.
Notwithstanding the division of Georgia into these two counties, Oglethorpe, as general and commander- in-chief, exercised civil and military control over the entire colony. The evils, therefore, which would have arisen from the rivalries, and jealousies, and collis- ions of these two independent boards of presidents and assistants, were obviated by the centralizing of supreme power in himself; and at his expected return to England, the Trustees recommended (April 9th, 1743) to the common council of that body to unite
15
226
DUTIES OF THE PRESIDENT AND ASSISTANTS.
both counties under one executive, and in May they revoked the former constitution, and consolidating the government into one body politic, appointed the offi- cers of the county of Savannah to be President and assistants for the whole province. As no appointment of President and assistants had ever been made for Frederica, the old bailiffs were now to be considered only as local magistrates, subordinate to the superior authority at Savannah. The President and assistants were to hold four courts each year, in Savannah, for regulating public matters and adjusting civil suits. They were also entrusted with the management of Indian relations, and the disbursement of money, of which monthly returns were to be made to the Trus- tees in England. In the prosecution of their duty as managers of Indian affairs, the President and assistants found their chiefest and most embarrassing labours, especially after the departure of Oglethorpe, and the disbanding of his regiment. It had ever been the care of the Trustees to cultivate friendly relations with the aborigines of Georgia, and to secure them to their interests by protective legislation and useful presents. But especially was it necessary now to renew the treaties made with the Trustees, when several adverse circumstances threatened danger, and brought great alarm to the colony. The chief of these difficulties was occasioned by the conduct and extraordinary demands of the Rev. Thomas Bosomworth, and his Indian wife, Mary. There is so much discrepancy in the various statements and voluminous documents which bear on this point, that at first view it seems almost impossible to reconcile them ; but patient re- .search has unravelled the tangled mass, and ena-
1
227
CONSAPONAKEESO.
bled us to draw out from it a clue to the simple and uncontested truth.12 Mary, the wife of the Rev. Thomas Bosomworth, was born about the year 1700, at the Coweta town, on the Ocmulgee river, which was then the chief town of the Creek nation. Her Indian name was Consaponakeeso, and she was by maternal descent, one of the micos or chiefs of the Uchees. Old Brim, the emperor of the nation, as he was usually styled, being her mother's brother, she therefore claimed, and the Indians conceded to her, the title of princess. At the age of ten she was taken by her father to Ponpon, in South Carolina, and was baptized, educated, and instructed in Christianity. While there the Indian war of 1715 broke out ; and a party of Creeks, headed by her uncle Chichilli, ad- vanced as far as Stono river. But the Yamassees, after their attack of the 13th of April, having been repulsed by Governor Craven, the Creeks returned to their lands without participating in the sanguinary contest.
Mary accompanied the party on their retreat to the nation, and laid aside the civilization of the English for the freedom of the Indian.
The neighbouring tribes, though not actually on the offensive, were still unsettled in their feelings towards the whites; and in 1716, Colonel John Musgrove was sent by the government of South Carolina to form a
12 This account has been drawn entirely from manuscript and official sources, viz., the Memorials and Re- presentations made by Bosomworth ; the Proceedings of the President and Assistants ; the Letters of Oglethorpe, Horton, Heron and others, and a large package of valuable original papers,
kindly furnished me by J. K. Tefft, Esq., of Savannah. Scarcely any por- tion of this history has cost more labour in digesting, arranging and reconcil- ing the various contradictory state- ments of the parties concerned. The truth has, I trust, rewarded my toil.
228
MARRIED TO MUSGROVE.
treaty of alliance with the Creeks, and thus secure their neutrality, if he could not obtain their friend- ship. The treaty lodged with the Indians certain reserved rights, the principal feature of which was, that none of His Majesty's subjects should hold any right to lands, or kill any cattle south of the Savan- nah, which was to be the boundary between the Creeks and His Majesty's subjects of Carolina. John Musgrove, junior, the son of the colonel, accompanied his father on this embassy, and having seen and ad- mired the youthful princess, was soon united to her by marriage. He remained in the nation several years after the birth of their only child, and about 1723 returned to Carolina, where she resided with her husband upwards of seven years. Mr. Musgrove, by his alliance with Consaponakeeso, obtained considera- ble influence with the Creeks, and was held in such high repute as a trader, that, at the request of the nation, and with the consent of Governor Johnson, he removed to the south side of the Savannah, (June, 1732,) and there, on a beautiful bluff belonging to a small tribe of Yamacraws, erected an extensive trading house. Success crowned his efforts, and wealth rewarded his industry. Such was the condi- tion of Mary prior to the arrival of the Trustees' colony, enjoying the confidence of her tribes, the friendship of the whites, and versed at once in the English and Indian languages.
God had placed her there for good, and all her prior movements were but the inner wheels within the cir- cumference of His great designs. The last day of January, 1733, had closed, and the evening shades gathered over a wilderness relieved only here and there by the flickering light of an Indian wigwam ;
229
MARRIED TO MATHEWS.
and when the morning sun called forth the glad wel- come of all animated nature, the simple-hearted Mary knew not that it lit up the last day of Indian sov- ereignty over the territory around her. That day Oglethorpe stood before her, and in behalf of his colony, solicited permission to settle it upon the bluff on which she dwelt. The Indians were alarmed at the threat- ened encroachment ; but she quieted their fears, gained their consent, and in concert with Oglethorpe, secured their friendship and alliance. Mary became at once the friend of the colony ; guarding its inter- ests, relieving its necessities, standing as a mediatrix between the pale and the red man, calming the unea- siness of the one, and repressing the excitement of the other. She was the Pocahontas of Georgia; and by her influence the little band of unprotected emigrants were often preserved from impending ruin. Within three years her husband died ; and Oglethorpe, then fortifying the southern section of the province, pro- posed to her the establishment of a trading house on the Altamaha, for the several purposes of drawing the Indians away from Savannah, strengthening the south- ern frontier, and securing her residence in the vicinity of Frederica, whither she was frequently called when her services as interpreter were required by the gen- eral, or her counsel and co-operation needed in time of war. She complied with his request, and estab- lished a trading house on the south side of the forks of the Altamaha, which she called Mount Venture. This soon became a place of much resort, and greatly strengthened this exposed border of the colony. She here formed a new matrimonial alliance with Captain Jacob Mathews, who was appointed by Oglethorpe to command the garrison of twenty men which had been
230
IMPORTANCE OF.' MARY TO THE COLONY.
raised for the defence of that place. The colony was now exposed to Spanish and Indian invasion ; the entire southern frontier was the seat of a merciless and savage warfare; and nothing but the fidelity of the Creeks prevented the abandonment of the prov- ince. These, through the instrumentality of Mary, were held firm in their devotion to the English inter- est. In the repulse of the Spaniards in 1742, the Indians sent down through the exertions of Mary, had, according to Oglethorpe, great share in the. slaughter; and his frequent and urgent communica- tions to her requesting advice and assistance, show in what estimation he held her services. His view of her worth may be inferred from a letter dated Dur- ham, England, November 13th, 1745, in which he says : "I find there is the utmost endeavour, by the Spanish faction, to destroy her because she is of con- sequence and in the king's interest; therefore it is the business of the king's friends to support her, be- sides which I shall be desirous to serve her out of the friendship she has always shown me as well as to the colony." If a " talk " was to be held with the Indians at Frederica, Savannah, or any other point, nothing could be done without the important aid of Mary. If warriors were required for the defence of the colony, it was through Mary's influence that they were ob- tained. Did disaffection, leaning on French intrigue or Spanish guile, hold aloft the " bloody stick " and threaten the massacre of the inhabitants, her power became conspicuous in the soothing of asperated feel- ings, and in the recall of half-alienated affection. In 1742, her husband, being ill, removed to Savannah, where about June he died ; and during her absence
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