USA > Georgia > Georgia as a proprietary province; the execution of a trust > Part 14
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Thus the proprietary era closed without leaving to the people of Georgia any semblance of legislative power. If the Trustees had remained in authority for twenty years longer, it is probable that the colonists' assembly would have been able to gain real power. In many of the other English colonies, the people secured their legislative pow- ers only after bitter controversies with the authorities at home and after repeated and urgent petitions had been made. Proprietary rule was too brief in Georgia for this process to be worked out.
On the whole, the Trustees were not successful in their legislative activities. Most of the acts they proposed failed to gain the approval of the British government. The laws that they did pass were detrimental to the peace and pros- perity of the colony. If they had taken the inhabitants of Georgia into their confidence at the beginning, and if they had established then an assembly like that of 1750, it is probable that the colonists might have aided in the solu- "C. R. II: 499-500.
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tion of their own problems; but the Trustees waited until it was too late to be of service to them to establish the colonial assembly.
CHAPTER VII
ORGANIZATION AND DEVELOPMENT OF THE JUDICIARY
I N the previous chapters of this work, some attention has been given to the executive and legislative features of the proprietary government of Georgia. The present chap- ter undertakes to outline the judicial system of the province and to explain its practical workings. While we shall find that many of its regulations differed widely from those of the other British colonies in America, these peculiarities were not particularly noticeable in the charter itself. It gave to the general corporation of the Trustees the power to create such courts as might be necessary for the province. These might be courts of record or not as the Trustees pre- ferred. They were authorized to administer oaths, or to require solemn affirmation, for the discovery of truth; and they might hear and determine all causes whether civil or criminal. The charter made no provision for appealing cases to the Privy Council from colonial courts. The appoint- ment of all officials who should operate the judicial machin- ery of the province was vested in the Common Council of the Trustees. While the Trustees thus had complete con- trol of the judiciary in Georgia, justice was not to be admin- istered in the colony in their name, but in that of the king. The most remarkable feature of the charter provisions was that which limited the authority of the Trustees in all judi- cial matters to a period of twenty-one years from the giving of the charter, after which time the king would assume entire
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charge of the system.1
Acting under the powers thus granted by the charter, on November 2, 1732, the general corporation of the Trus- tees established a court of record for the first settlement that should be made in the province. This was to be known as the town court. Its territorial jurisdiction was limited to the town and precincts of Savannah, which was the first settlement established in the colony. The judicial officers in charge of the court were three bailiffs and a recorder, whose duties will be considered later. The powers of the court were very extensive indeed. It could try offenses against the national government, such as concern the federal courts of the United States at the present time; these crimes would include treasons, insurrections, rebellions, counter- feiting, clipping, or falsifying British money, and the like. The court was also authorized to try and punish ordinary criminal offenses ; such as murders, burglaries, rapes, thefts, cheats, swindles, and all other felonies and misdemeanors, whether the offenses were against statute or common law. Nor was the town court limited to criminal matters. It was empowered to hear and determine all suits and actions, real, personal. or mixed, concerning debts, accounts, trespasses, contracts, and all similar causes whatever. After such civil cases were determined, the court was further authorized to issue and enforce execution of its decrees. All juries, panels, attachments, warrants, judgments, and other processes were to be served and executed by the two constables of the town, or by their assistants who were known as tithingmen. All the proceedings of the court must be in the English tongue, and records of them must be plainly written.2
The functions exercised by several English courts were
1C. R. I: 22.
' B. T., Ga., XII: 14 et seq.
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thus merged into one; but for a single town or settlement there was little disadvantage in that arrangement. It would have been absurd for a too highly organized judicial system to be established for a town of a few hundred settlers. No provision was made by the Trustees in their regulations for a court of appeals, though it was generally understood that" any dissatisfaction with the judgments of the Savannah court would be referred directly to the Trustees themselves.
For the administering of justice in the new court, the Common Council appointed promptly the four officials, three bailiffs and a recorder, contemplated in the regulations of the Trustees. They likewise appointed two constables and two tithingmen for the town. The bailiffs were distin- guished by the designations of "first," "second," and "third"; but the first bailiff was not more powerful than the others. He usually presided at trials, and he was more often expected to administer oaths; but the distinctions be- tween the bailiff's were largely for convenience only.
The instructions issued to these officials were astonish- ingly meager. They were directed to hold office until their successors were appointed. The bailiff's and recorder were admonished to preserve the peace and to administer justice impartially ; while the constables and tithingmen were di- rected to obey the magistrates. It seems to have been assumed that the duties to be exercised by these officials in Georgia were the same as those of similar officers in Eng- land and that these were well enough understood to require no further instructions.3 As a matter of fact, each officer in the new province was to have vastly more power and much more complex duties than an officer of the same title in Eng- land; and the Trustees would have acted more wisely if they had been more specific in giving their instructions to the new ' B. T., Ga., XII: 17.
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appointees.
Before the first settlers sailed for Georgia, the Common Council also named eight officers who were styled conser- vators of the peace. These were not provided for in the general constitution of the town court. Their commissions gave them power only to require bond from persons threat- ening injury or damage to others, or to imprison such per- sons if bonds could not be provided by them. It is not clear whether or not these officials had the powers of English jus- tices of the peace to try minor civil cases and to bind over accused persons for trial by the town court. Conservators of the peace were recognized as having such authority at a later time, and it is probable that from the first it was tacitly understood that they should exercise it. It is worthy of note that in the first appointment of conservators the three bailiff's and the recorder of the town court were four of the eight appointees.+
As the outlying precincts of Savannah were settled and as people began to live without the limits of the town itself, the territorial jurisdiction of the town court was enlarged to include all the settlements in the neighborhood. For instance, in 1733 the village of Thorpe was laid out; and it was included within the precincts of Savannah for the express purpose of putting its people under the protection of the court already established. Constables and tithing- men were appointed for the new village; but no new bailiff's were chosen.5
This enlargement of the territory covered by the town court was not indefinitely increased. The Trustees did not intend for it to become a provincial tribunal. In 1735 when the town of Frederica was established at the mouth of the
* B. T., Ga., XII: 21.
" Ibid., 104-105.
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Altamaha River, a separate and distinct town court was adopted for it. The constitution of the court, with its juris- diction, powers, and officials, was identical with that of Savannah; but there was no connection whatever between the two.G
After 1735 there seem to have been no enlargements of jurisdiction or creation of new courts until the government of the whole province was reorganized in 1741. With this new order of things, came several changes in judicial mat- ters that were quite important. Before this time, there had been no executive officials in the province. All the duties of an executive character had been performed either by special commission from the Trustees or by the bailiffs who were primarily judicial officers. In 1741, however, the prov- ince was divided into the two counties of Savannah and Frederica; and in each county there were to be a president and four assistants, who were intended to exercise executive functions. The new arrangement would apparently bring about a separation of judicial and executive powers; but there were two things that prevented this. In the first place, three of the four assistants in each county were to be bailiffs of the town court of that county. The same persons would engage in both executive and judicial business as before ; but after 1741 they would be called assistants while en- gaged in the former work and bailiff's when doing the latter. Again, the president and his assistants as a council or board were granted appellate jurisdiction over cases from the town court when the amount involved was as much as twenty pounds. In the same general regulations, it was provided specifically that appeals could be taken to the Trustees where the amount involved was as much as one hundred pounds, though in all cases of appeal either to the president and . B. T., Ga., XII: 243-247.
Organization and Development of the Judiciary 203
assistants or to the Trustees, the appellant must give bond to answer for the costs and damages.7 While it was not definitely so stated, it seems to have been understood that appeals to the Trustees could be taken directly from the town court as well as from decisions of the president and his assistants; and it is probable that in most cases of one hundred pounds or more appeals would not be taken to the appellate courts in Georgia at all unless there were pressing need for an immediate decision.
It is not to be understood that there was in Georgia as yet a provincial system of courts. The president and assist- ants of each county had appellate jurisdiction only over cases arising in the Savannah or in the Frederica town courts respectively ; and only the Trustees themselves as a sort of supreme court afforded any link between the organizations of the two counties.
While in 1741 Georgia was thus divided by law into two counties, and while the regulations above outlined applied to both of them equally, yet the laws were not put into active operation in southern Georgia by the appointment of the proper officials to carry out the law. The matter was post- poned until 1743 when the president and assistants of Sa- vannah county were appointed to act for the whole prov- ince.8 This action gave to Georgia a single appellate court and in a measure consolidated and centralized the judicial system of the colony. The province was divided into coun- ties each having a town court, from which appeals could be taken either to the president and assistants as a council for the whole colony or to the Trustees as a court of last resort.
This apparently satisfactory arrangement was not long continued. For reasons to be given later, the town court of
' B. T., Ga., XIII: 15 et seq.
& B. T., Ga., XII: 49.
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Frederica was suspended; and at the same time the appellate jurisdiction of the presidents and assistants over cases not only from Frederica, but also over those from Savannah, was likewise suspended. In point of law, the whole system re- verted to the conditions which existed when Savannah was first settled. At that place there was a town court, with a few conservators of the peace and nothing more.º The suspension of the colonial system was intended by the Trus- tees to be only temporary; but it continued to the end of their control. Almost no changes in the judicial administra- tion were made between 1745 and 1752 except the appoint- ment of minor officers in various parts of the province. After 1750 the second and third bailiffs of Savannah did not regu- larly act as provincial assistants, though occasionally one of them did so as a temporary expedient.10
In 1751 when the assembly met to consult about the gen- eral welfare of the colony, it petitioned the Trustees to establish a court of equity at Savannah for hearing cases in which the common law did not afford adequate remedies. The president and the assistants of the colony advised the Trustees that the court was not needed, and it was not estab- lished. The Trustees objected to it on the ground that ap- peals to such a court would be expensive while they cost nothing when made to themselves. They admitted that an equity court might give to the colony a certain degree of credit among people at a distance, but they thought that the increased litigation and expense would more than offset the advantages.11 The same assembly petitioned for conser- vators of the peace to be established at various points in the province, and this request was readily granted by the
·B. T., Ga., X: Verelst to Stephens, Feb. 6, 1746.
1º B. T., Ga., XIII: 209.
" B. T., Ga., XXIV: 48.
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Trustees.
No admiralty court existed in proprietary Georgia, though in 1748 an effort was made to have one established. The movement to secure it started from an assertion on the part of the Trustees of their right to make all official ap- pointments in Georgia. The commander of Oglethorpe's regiment at Frederica had recommended to the Admiralty Board the appointment of Mark Carr as judge of the court of admiralty in Georgia, apparently not realizing that no such court had been created. The Trustees heard of the recommendation and they immediately notified the Lords of the Admiralty that, while they approved of the particular nominee, they reserved the right to make all appointments in the province. It soon developed, however, that no vice- admiralty powers had been settled for Georgia, and so no judge could of course be appointed. The Trustees then made a formal petition to the king in council for the estab- lishment of a vice-admiralty court, especially for the pur- pose of condemning prizes captured during the war; but nothing seems to have been done in the matter.12 It is prob- able that the coming of peace at an early date made the court seem less necessary than it would have been, and the Trustees ceased to urge its establishment.
The preceding pages treat of the general constitution and development of judiciary in Georgia from a theoretical viewpoint only. We shall now examine the practical work- ings of the system. Under this topic, we may first consider the part played by the Trustees themselves in the actual administration of justice in the province. Before the set- tlers set out for Georgia on the first embarkation, the Trus- tees had several quarrels and disputes to settle.13 There
1C. R. I: 507-512.
13 Ibid., 109-110, 137, as examples.
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was no legal warrant for their doing this, but they acted as a sort of arbitration board, enforcing their decisions by · refusing to allow settlers to go to Georgia until they had complied with the judgment of the Trustees in the matters heard.
"They required regular reports of all proceedings in the colony, at first demanding these to be sent monthly and later calling for them quarterly; and they read these with more care than colonial matters of the other provinces were wont to receive from the British ministry. The Trustees had much difficulty in getting regular reports of the court pro- ceedings until William Stephens was sent out as their secre- tary. He sent them with great regularity informal accounts of what was done, and he was active in seeing that the official records were also forwarded. None of the official reports are now available for this period, but the minutes and jour- nals of the Trustees indicate their general policy toward the colonial judiciary.
They superintended even the smallest details of judicial business. It is impossible to enumerate fully all the matters of a minor nature that they directed; but examples are, appointing a guardian for a single orphan,14 ordering the release of individual prisoners on habeas corpus proceed- ings,15 directing that specific persons have information of the charges against them.16 These and other similar direc- tions which they sent to the officials in Georgia indicate that the Trustees, or a committee of them, reviewed carefully every case reported to them.
The Trustees heard appeals from the courts in Georgia ; and, while this topic will be more fully treated in another
" B. T., Ga., XII: 161.
" C. R. I: 423.
16 B. T., Ga., IX: Verelst to Williamson, Dec. 4, 1737.
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part of the chapter, we may note here that nearly every appeal received prompt attention. There was a tendency on the part of the Trustees to uphold the decisions of the colonial judges whenever this was possible, though they did not hesitate to interfere when they thought the bailiff's were failing to give justice.17
One of the troublesome tasks that frequently confronted the Trustees was the settling of disputes between the magis- trates themselves. These did not arise in the ordinary course of judicial procedure, being in most instances private jeal- ousies and disagreements ; but the settlement of them was of vital importance to the successful administration of justice in the colony, and of course there was no tribunal in Georgia with jurisdiction over such disputes. Sometimes the matters were settled without a personal hearing before the Trus- tees; each side would present a written statement of the situation, and the Trustees could determine the matter from that evidence. 18 It was more frequently the case that a written statement would be made by the plaintiff or accuser only, while the defendant would deem it best to appear in person to plead his cause.19 In at least one case, both the accused and the accuser were summoned to appear before the Trustees, and a formal trial was conducted.2º It is a little remarkable that in every case where a magistrate ap- peared in person to defend himself, he was either entirely or practically exonerated by the Trust. This is not to be explained so much by the weakness of the Trustees or their leniency as by the fact that the Georgia bailiffs were quarrel- some and prone to make charges against each other that
17 C. R. I: 420.
18 B. T., Ga., Verelst to Oglethorpe, Apr. 27, 1741.
1º C. R. II: 437-142, for example.
"C. R. I: 476 et seq.
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could not be established by sufficient proof.
These hearings or trials between Georgia magistrates were held before the corporation of the Trustees as a whole rather than before the Common Council, and there seems to be no good reason why this should be true; for the Common Coun- cil had exclusive control over the appointing or removing of officials in the province, and it would seem that it should have investigated the charges against its appointees. When a magistrate was accused of some serious matter, it was cus- tomary for the Common Council to suspend him as a colonial officer until the charge against him could be cleared. After he was freed from the accusations preferred against him, sometimes he would be restored to his former position, but this was not always the case. An exonerated magistrate was nearly always given some consideration for the trouble to which he was put; sometimes he was restored to office and given money compensations ; sometimes the latter only was given.21
The subject of appeals deserves consideration more from the fact that so many changes were made in the laws affect- ing them than from the number of cases that were actually carried to higher courts. Before 1741 and after 1745, there was no appellate court in Georgia; and during the brief period of about four years when appeals were allowable within the province, there do not seem to have been many instances when the opportunity was used. For much the greater part of the proprietary period, appeals could be taken only to the Trustees, unless the Privy Council might be considered an appellate court for the province. The president and assistants would seem to be ill suited to com- pose a court of appeal, for three of the five members would be bailiffs of the town court from which the appeal was "C. R. II: 474-475, for example.
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taken; and yet the appellate court reversed the lower one in some cases at least.22 This court acted with expedition, sometimes finishing the matter of an appeal in a few days after it was made.
Most of the affairs that were appealed to the Trustees seem to have received speedy and satisfactory settlements, as few complaints are recorded against them ; but in at least one case, that of Clee against Minis, the appellant com- plained that for two years he had gotten no satisfaction, and he threatened to publish his grievances both in England and in America, asserting that he had been denied the rights common to all Englishmen.23
There seems to have been only one case from Georgia that was formally appealed to the Privy Council before 1752. It grew out of the prosecution of an Indian trader by the name of Joseph Watson who was accused of stirring up the In- dians and of causing either directly or indirectly the murder of one of them. It seems that he was at first indicted for murder, but that charge did not come to trial, so far as we can tell. The accusation on which the trial was actually held was that of exciting the natives to crime. The magis- trates evidently felt that an example was needed to warn white people to be careful in their dealings with the Indians ; for all the accounts of the court proceedings indicate that Watson was scarcely given justice. When a verdict was finally reached by the jury, it found Watson guilty of using unguarded expressions, but recommended him to the mercy of the court on the ground that possibly the defendant was not of sound mind. Causton, who was the presiding magis- trate, is represented as sending back the jury several times with the order that they change the verdict to one of lunacy ;
22 B. T., Ga., XXIII: 17; C. R. VI: 103-104.
2 B. T., Ga., XXIII: 17.
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but the jury did not alter their original verdict. Instead of sentencing him for the crime of which he had been found guilty, Causton ordered Watson into confinement as a luna- tic. The wife and other friends of the imprisoned man pro- tested against this order, but their efforts were in vain.24
The case was reported in such a light to the Trustees that they were very indignant at Watson for disturbing the Indians whom the Trustees were anxious to keep on the terms of closest friendship. They sought legal advice to ascertain the limit of the punishment that might be inflicted upon him for his offense. They approved the action of the magistrates in keeping him in prison, asserting that they thought he had been dealt with in mildness. They also laid down the general rule for the future that any offender against the Indians should be dealt with very severely.25
Mrs. Watson was unwilling that her husband should re- main in jail under what she thought to be a false accusation, and she became active in his behalf. Appeals were made in vain to the Trustees who firmly upheld the magistrates with- out feeling that it was necessary to investigate the matter further. Their failure to investigate was due to the fact that they had received a full report of the case in the first instance from Causton, and they did not hesitate to accept the account that he gave ,without realizing that he might be biased in his statement of the proceedings.
When Mrs. Watson failed to get relief from the Trustees, she appealed to the king in council for the release of her husband. On March 22, 1737, the Privy Council requested from the Trustees an answer in writing to the petition of Mrs. Watson. 26 The Trustees ordered that a reply be pre-
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