USA > Georgia > Georgia as a proprietary province; the execution of a trust > Part 12
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@C. R. V: 638, 651.
" C. R. VI: 261 et seq.
65 Ibid., 353; C. R. II: 510.
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Georgia as a Proprietary Province
ing with Oglethorpe to England, he was in 1737 chosen sec- retary of the Trustees in Georgia; and he reported in Sa- vannah for duty on November 1 of that year.' He was asked to serve from time to time on various. committees and to fill several minor offices, giving great satisfaction to the Trustees both in them and in his regular work. When the colony was organized into counties in 1741, Stephens was elected as the president of the Savannah government ; and in 1743 he became the head of all the province.66 He was seventy-two years of age when he assumed the respon- sible position as president of the colony; and by 1750 he was so enfeebled that the assistants hinted to him that he was retarding the affairs of the province. He consented that they should proceed without him, and he ceased entirely to exercise the duties of the office. Henry Parker, as we have seen, was to perform all the duties of president, holding the title of vice-president; 67 but the next year Stephens on his resignation was relieved of even the name of presi- dent and was retired with a comfortable support from the Trust during his remaining days.68 He died a little more than a year after the charter was surrendered by the Trus- tees.
Stephens was a man of experience and sound judgment ; and he was thoroughly honest in both public and private affairs. He served the Trustees faithfully, having at heart both their honor and the good of the colony; but he was not a suitable man to accomplish the work which was given him to do. As a correspondent, he was full, prompt and accurate; but he was a man of strong prejudices and rather narrow views both as to government and religion, and he was prone to impute sinister motives to those who differed
63 B. T., Ga., XIII: 187.
" B. T., Ga., XIII: 49.
" C. R. VI: 332, 353.
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The Executive in Georgia
with him. Knowing well the views of the Trustees as to land tenures, negroes, rum, and other points of dispute, Stephens fully accepted their attitude as his own, without seemingly making an unprejudiced investigation for him- self. This was a great mistake, for the Trustees depended on him for the information on which to base their actions ; and the fact that he tried to justify their rules rather than to view the effects of them impartially is probably the main reason why the Trustees persisted so long in some of their unwise measures. As an executive Stephens seems to have acted with courage and fairness. In this phase of his work, his weakness lay in his inability to arouse enthusiasm and active support among those whom he ruled. His lack of energy and magnetism may have been due to his age, but it was just as unfortunate for Georgia as if it had always been characteristic of him. In his private life he was a very humble, devout Christian; and he bore with fortitude the many sorrows and disappointments that came upon him through his son Thomas and other members of his family.
The only other member of the executive government of proprietary Georgia whose connection with the province was of sufficient importance to demand individual treatment was James Habersham. He came to Georgia in 1737 with White- field, much against the wishes of his friends in England. He entered with Whitefield into the project of founding an orphanage; and he began the work of opening a school for children who might be eligible for such an institution, while Whitefield was raising the money for it. After the work had gotten well under way, Habersham continued to be the active resident manager of the orphanage, showing ability both as a business manager and as an instructor of the children.69 In the absence of a minister at Savannah, Haber- " Stevens I: 346-352.
1
-
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Georgia as a Proprietary Province
sham read the service of the Church of England on Sun- days. He did not get along well with the ministers of the English Church who followed Whitefield in Savannah, and he was severely rebuked by the Trustees in one of the long- est and bitterest letters written by them for interfering with the work of the ministers. In this letter they criticised also his running of the orphan house, saying that one of his fiery zeal was scarce fit to have in charge the training of chil- dren.7º It is not clear what caused so severe a letter, but it seems probable that Habersham's desire to argue on ques- tions of religion had been misinterpreted by Stephens and the ministers at Savannah as open opposition. It would seem that one so in ill favor with the Trustees would not be likely to hold important offices under them; but Habersham did not continue always in disfavor.
The quality that won most favor for him with the Trus- tees was entire frankness, though his keenness of insight and his ability to express himself clearly and forcibly also com- mended him to them. They discovered these qualities in him almost by accident. For the pastor of the Salzburghers, he drew up in 1747 a careful summary of actual conditions in Georgia and the means necessary to remedy them. A copy of the paper found its way into the hands of the Trus- tees. It criticised their policies in nearly every matter of dispute between them and the colonists; but its facts and arguments were so strong and the tone of the paper was so fair, that the Trustees were much impressed with Haber- sham; 71 and on January 19, 1749, they appointed him to be one of the assistants of the colony. He held the office of fifth assistant, and it would seem that it was created prin- cipally to give him a place in the management of the col-
TO B. T., Ga., X: Martyn to Habersham, May 10, 1743. 7 Stevens I: 310-311.
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The Executive in Georgia
ony.72 On March 19, 1750, when it had become evident that Stephens could no longer serve as secretary, Habersham was asked to take the office; and he held it until the sur- render of the Trust. 73 During the last three or four years preceding the surrender, he was perhaps the most influential man in the colony, making suggestions both to the Trus- tees and to the officials in Georgia and giving freely of his time for the service of the province.
Other men for comparatively short periods of time were of considerable influence either for good or evil in the execu- tive management of Georgia, but their terms of service were too brief for them to leave permanent impressions on the colony. On the whole, the appointees of the Trustees for executive work in Georgia were of mediocre ability and tal- ents. It may be urged that they labored under such re- strictions and limitations that they had no opportunity to show their talents; but it is more likely that if the officers had been able and magnetic leaders like Habersham, for in- stance, they would have been given fuller scope for the exer- cise of their abilities, and a larger portion of executive au- thority might have been vested in Georgia officers instead of its being retained in England. If Stephens in 1737 could have visualized the needs of the province and could have forcibly presented them to the Trustees, there is reason to believe that they would have immediately taken steps to es- tablish a better colonial government and to satisfy the people of the province. The Trustees were led to believe that only a few malcontents were complaining and the lack of progress in the colony was due to them rather than to any fault in their own plans and regulations. It was too much per- haps to ask that Stephens or any other official should be
72 C. R. II: 491.
7 Ibid., 498.
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Georgia as a Proprietary Province
able. by 1737 to comprehend the needs of the province and present them to the home authorities; but if the Trustees could have had early in the administration some frank, able officer, their action in the case of Habersham indicates that they would not have been unwilling to increase considerably his authority.
There was great need for more power to be vested in the local government of Georgia. It was a severe hardship that many matters of the simplest kind could not be de- cided without being referred to England. Lack of regular communication with the Trustees often occasioned delays in bringing questions before them; they did not meet fre- quently enough to insure consideration of a question for some time after it reached England; and the reply of the Trustees might also be delayed. Besides, the solution of questions at such long range could not be satisfactory. Those making the decisions did so on theoretical grounds and frequently with a lack of sufficient information. A con- centration of more power in the province would also have helped to make the people respect the executive authority of their magistrates, a result which was greatly needed. There was a general feeling on the part of both colony and Trustees that the situation was not satisfactory; but both parties were too inexperienced in affairs of government to discover just what was the difficulty.
CHAPTER VI
LEGISLATIVE HISTORY
T HE vesting of legislative power in the people of the various British provinces and colonies in America was not secured without many struggles. Some of these were long and bitter, but before the settlement of Georgia it seemed to be a generally accepted principle that in each colony the people should have some control over the making of their laws. Accordingly each British colony had its legislature possessing more or less power ; and a large part of the governmental history of any province consisted of a struggle between the people as represented in the assembly and the executive authority as represented in the Governor. Before the founding of Georgia, such disputes and con- troversies had become so general in all the colonies and they were so distracting in many cases, that we find the Tras- tees of the new province taking efficient measures to pre- vent a similar struggle in Georgia. In the charter establish- ing the colony and providing for its government, there was not a vestige of self-government provided for the people. Like all other authority, the legislative powers to be exer- cised in Georgia or concerning its affairs were vested ex- clusively in the Trustees.
They were granted unlimited power to make such by- laws, constitutions, rules, or ordinances as might be need- ful for the management and control of the corporation it- self, and they were authorized to enforce all such regula-
173
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Georgia as a Proprietary Province
tions with suitable penalties, provided the rules and penal- ties be reasonable and not contrary to the laws of the realm. Every such law or constitution was required to be ratified at the annual meeting of the corporation in March of each year.1
The power to make the by-laws or rules just mentioned was a permanent one, but it is to be noted that such enact- ments usually concerned the management of affairs in Eng- land only. In addition to this authority, which might be exercised by any body corporate, the Trustees were given much greater legislative power. They were granted for a term of twenty-one years all the law making authority for the whole colony. They might prepare laws, statutes, and ordinances for Georgia without consulting the inhabitants or securing their approval; but the rights of the people were in a measure safe-guarded by the requirements that such laws must not be repugnant to the laws of the realm and that they must be approved by the king in council before they became effective.2 This regulation applied only to laws made by the Trustees. Since the charter mentioned no possible legislature of the people in Georgia, it made no provision for submitting laws made in the colony to the Privy Council, as had been ordered in the case of Pennsylvania and of other colonies.
For some time it seemed that the Trustees would not at- tempt any legislative work. No real laws were passed for several years. At the fourth meeting of the Trustees, a committee of seven was appointed to consider and propose laws and regulations for the colony, and some of the most influential men of the corporation were put on the com- mittee-Oglethorpe, George Heathcote, Thomas Tower,
1C. R. I: 17.
ª Ibid., 19.
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Legislative History
Vernon, More, Hucks, and Laroche; but neither formal laws nor general regulations seem to have been reported to the Trustees as a body.3 It is possible that the committee formulated rules that were accepted without formal ap- proval; but, if so, it is strange that some reference to them should not have been made in the journal of the corpora- tion, which appears to be very full and accurate. The near- est approach to such a set of rules or regulations as we might expect for the settlement of a colony appears in cer- tain articles drawn up as a basis of agreement with the Salzburghers who desired to settle in the province. These articles briefly stated that the Trustees would carry settlers to Georgia free of charge; would allow them money for tools ; would furnish seed and give support until a harvest could be made in Georgia ; would give to each man and his heirs male a house lot, a garden plot, and some farm land; would allow them all the civil and religious rights of the subjects of Great Britain; but would require of them obedience to such laws and orders as might be prescribed by Trustees.4
These rules are typical of all that were adopted during the first three years of the colony's existence. Instead of laying down general rules or establishing fixed principles that might be applied in the colony to all the cases of cer- tain classes, the Trustees preferred to have each case pre- sented to them for special consideration. As a rule, the con- clusions of the Trustees in any case were sent to some repre- sentative of the Trust in Georgia in the form of an order for his enforcement. We may illustrate this form of legis- lation by noticing how the trustees dealt with the use of rum before 1735. Almost as soon as the colonists landed in Georgia, Oglethorpe wrote to the corporation that sev-
$C. R. I: 70.
· Ibid., 78-79.
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Georgia as a Proprietary Province
eral of the people in the colony had died, and it was thought that the cause was rum. The Common Council immediately passed a resolution that the drinking of rum should be abso- lutely forbidden and that all brought into the - province should be staved.5 This was a mere resolution passed quite hurriedly in a meeting of the Common Council, not even at a general meeting of the corporation, and yet it had a bind- ing force in the colony. Since it was so much quicker, and less troublesome for the time being at least, to legislate in this way than to pass formal laws with the approval of the Privy Council, it is no wonder that the Trustees used it in preference to the dilatory methods required in the lat- ter.
The only hints we get of the legislative activity of the Trustees during the first few years are from their cor- respondence of the period. Rules or ordinances are casually mentioned in some of the letters that passed between the Trust and the colonists or correspondents in Germany ; but they were not thought of sufficient importance to be ratified by the Privy Council or even to be inscribed in the minutes or journals of the Trustees.6
By means of specific directions for each special case that arose and of a few general regulations as above mentioned, the affairs of the colony were conducted until after Ogle- thorpe's return to England in 1734. It is evident that he impressed his fellow Trustees with the need of formal laws on some of the more important colonial problems; and on January 9, 1735, the committee on laws and regulations, of which Oglethorpe was chairman, made its first report. It recommended the passage of three acts, as follows: "An
5 B. T., Ga., VIII: Martyn to Oglethorpe; Nov. 22, 1733.
Ibid., Martyn to Dumont, Apr. 6, 1734; also Martyn to DePfeil, July 4, 1734.
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Legislative History
Act for ren'ring the Colony of Georgia more Defensible by prohibiting the Importation and Use of Black Slaves or Negroes into the same"; "An Act to prevent the Importa- tion and Use of Rum and Brandies in the Province of Georgia"; and "An Act for maintaining the Peace with the Indians in the Province of Georgia." The suggestions of the committee were generally acceptable to the Trustees. The proposed laws were all amended slightly ; but they passed the corporation in much the same form proposed by Ogle- thorpe's committee. After being engrossed and formally approved, they were sealed with the official seal of the Trust.7 So far as the Trustees had authority, the acts were then complete; but, according to the terms of the charter, the approval of the Privy Council was necessary. This ap- proval was sought by a petition of the Trustees; and it was granted on April 3, 1735, thus finishing the first and only real legislation for the proprietary province of Georgia.8
It is so remarkable that any colony could be run for twenty years with only three regularly enacted laws that we must stop to give a brief analysis of them. The act to preserve peace with the Indians was intended to regulate trade with the natives of Georgia. It laid a fine of one hundred pounds, with forfeiture of goods, on any person who might attempt to carry on trade with the Indians with- out a license from the agents of the Trustees. In order to secure the necessary license, each trader was required to appear in person at Savannah before a commissioner ap- pointed by the Common Council; and he was further re- quired to pay an annual fee of not less than five pounds, at the same time giving security for not less than one hun-
7C. R. I: 197-198.
8 Ibid., 31-54.
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Georgia as a Proprietary Province
dred pounds to be friendly with the Indians and to obey the rules of the Trustees. The licenses must be taken out each year; and renewals, as original applications, could be secured only on the personal appearance of the trader be- fore the commissioner. Traders were forbidden to give ex- tensive credit to natives, nor were they permitted to carry on their business except in the towns or territory specifically named in their licenses.9
The act set forth in detail the powers and duties of the commissioners and other officials who should enforce the regu- lations. They might try minor cases growing out of com- plaints of the Indians, and they were fully authorized to execute their judgments.10
On the whole, the act seemed wise and reasonable. It was desired by the Indians themselves, and it was 'undoubt- edly well adapted to prevent misunderstandings and. harsh feelings between the English and the natives. So far as this object was concerned, the act was very successful; but it was so framed as to procure for Georgia the hearty jealousy and ill will of South Carolina. Before the settlement of Georgia, the traders of South Carolina had a practical mo- nopoly of the English traffic with the Indians in the South. A considerable portion of this trade was carried on within the limits that had been assigned to Georgia, and the law of the Trustees forbade this trade unless licensed by their authority in Savannah. The South Carolina traders re- sented having to take the long journey to Savannah, and they felt aggrieved also that their long established traffic should be regulated by so new a province.
South Carolina sympathized with her traders, protest- ing against the Georgia law and attempting to nullify it.
·C. R. I: 40-41.
10 Ibid., 34-35.
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Legislative History
The details of the controversy do not belong to this chap- ter. It is sufficient to notice that, whereas at first the peo- ple of the older colony were cordial and friendly to the prosperity of Georgia, they became estranged by the act to regulate commerce with the Indians; and the loss to the new colony of South Carolina's whole hearted assistance was a serious one.
The second of the acts passed in 1735 was intended to prevent the importation and use of rum and brandy in the province of Georgia. It was a formal enactment into law of what was already a general regulation of the Trustees. The prohibition of rum had been agreed upon by the Trus- tees because it had been the apparent cause of numerous maladies and fatal distempers among the settlers at Savan- nah.11 The measure was rendered still more imperative by reports of Indian chiefs to the effect that the use of liquors had caused great disorders among their people.12 The act, therefore, was regarded as a necessary protection of all inhabitants of the province.
According to the terms of the law, no rum, brandies, spirits or strong waters by whatever name distinguished might be brought into any part of the province of Georgia. All such brought in must be publicly staved. Any person preserving rum thus ordered staved would be fined five pounds above the value of the rum.13 If any persons should attempt to sell any rum either to Indians or to white people, he should be fined; for the first offense the fine was five pounds; for the second, the offender should be fined fifty pounds and become incapable of holding office in the colony. Half of each penalty was to go to the informer and half to the col-
11 B. T., Ga., VIII: Martyn to Oglethorpe, Nov. 22, 1733.
1C. R. I: 44.
13 Ibid., 45.
1
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Georgia as a Proprietary Province
ony. In order to prevent profane swearing, debauchery, and the like in public houses, it was provided that any re- tailer of wine, beer, or ale who should violate the rum act should be fined twenty pounds for the first offense and in addition his license to keep a public house might be recalled. In all matters of fines and penalties, the Common Council of the Trustees was given supervisory powers.14
The third important act of 1735 forbade the use of negro slaves within the limits of Georgia. The preamble recited that the law was passed because experience had shown that the settling of colonies with slaves had prevented the increase of whites, and that such colonies proved weak either for quelling tumults within or for carrying on external war- fare.
To prevent this weakness in Georgia, after June 24, 1735, no negro should be brought within the province or sold or bought therein. Offenders should be fined fifty pounds, half to go to the informer and half to the colony. Any negro found within the limits of Georgia must be seized and adjudged the property of the Trustees and must be disposed of for the benefit of the province.15
However, if a negro ran away from South Carolina and was claimed by his owner within three months, the court at Savannah would adjudge the owner's right, provided he paid the costs of apprehending the slave, of keeping him until claimed, and of any damage that the negro might have committed.
In the case of fines and penalties under this act also, the Common Council might have the power of mitigating fines if it desired to do so.16 After the passage of the acts, the
" C. R. I: 47.
15 Ibid., 50-51.
" Ibid., 52.
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Legislative History
Council had printed a thousand copies of each of the laws for distribution both in the colony and in England.
There seems to have been a disposition among the Trus- tees to pass other laws for Georgia at this time. The task was committed to two of the Common Council to prepare an act for requiring a powder duty in the province and an- other for general sumptuary purposes to prevent the use of gold and silver in apparel, furniture and equipage in Georgia.17 Nothing seems to have been done in this mat- ter at the time, but in 1737, while Oglethorpe was again at home, the following acts were ordered prepared: (1) A law for taking Indian evidence; (2) A law to regulate the manner of private persons giving to each other credit and of suing for debts ; (3) A law to regulate the watch and to settle the militia ; (4) A law to prevent the use of gold and silver in apparel and furniture and to prevent extrava- gance and luxury ; (5) A law to oblige ships clearing out of the Savannah and Altamaha rivers to pay a port duty of pistol powder, one pound of powder for every ton ac- cording to the tonnage of the ship.18 If any of these acts were ever passed or even referred to the Trustees by the committee appointed to consider them, the evidence is not available ; but the fact that they were moved indicates a feel- ing on the part of some of the Trustees at least that the colony ought to be better protected by sufficient legislation. It is not unlikely that the matters thus considered were settled and the rulings enforced by the Committee of Cor- respondence, to whom it was customary to refer many such matters.19
The question of land tenures had been one of the most
17 C. R. II: 97.
18 C. R. I: 280-981.
1º Ibid., 317, for example.
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Georgia as a Proprietary Province
vexing problems that confronted the Trustees during the early years, and many investigations of the subject were made. By March 15, 1739, they were ready to legislate on the subject. A committee was appointed, as usual in such matters, to draft a law that would cover the views of the Trustees. The proposed law provided that all tenants in tail male in default of issue male might either by deed or by will appoint any daughter and her heirs male to suc- ceed to his estate; or if he had no daughters, such a prop- erty holder might leave his estate to some one else. This general rule was adopted by the Trustees as a guide for their future action, but it was not passed as a formal law and so was not submitted to the king in council for his ap- proval.20
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