USA > Georgia > Georgia as a proprietary province; the execution of a trust > Part 15
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" Brief Account of the Causes, Ga. Hist. Collec. II: 132-136; True and Historical Narrative, Ga. Hist. Collec. II: 201.
25 B. T., Ga., XII : 138. "C. R. I: 277.
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pared, and they sent immediately to Savannah asking that the magistrates prepare the necessary affidavits and a full statement of the whole case.27 Without waiting for the in- formation to arrive, however, the Trustees prepared a rep- resentation on the subject to be laid before the Privy Coun- cil. At this point a very interesting question was raised; namely, whether this answer would commit the Trustees to the policy of becoming parties to suits from Georgia and whether the answer would be a precedent for requiring the Trustees to allow appeals from the colony in criminal cases .. Before they laid their representation before the Privy Coun- cil, the Trustees submitted these questions to the attorney general for his opinion.28 We do not have a statement of his opinion ; but a safe inference from what followed would be that he advised the Trustees that an answer in this case would be a precedent for their filing answers to future suits, if there should be any. At all events, the Trustees instead of filing their statement of the case with the Privy Council hastened to settle the matter out of court. They had or- dered an investigation of Watson's sanity ; 29 but before they had time to hear from this investigation they sent an order for the unconditional release of the prisoner. 30 The action of the Trustees in this case looks like a plain instance of yielding ground in order to avoid a controversy with the Privy Council over the question of jurisdiction in appeals from Georgia.
This release of Watson ended all judicial action in the most noted case of the proprietary period of Georgia. It has been treated in some detail because it offers an oppor-
" B. T., Ga., IX: Verelst to Causton, Mar. 24, 1737.
2 C. R. I: 285.
2 Ibid., 286-287.
"C. R. IV: 22-23.
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tunity for looking closely into the general attitude of the magistrates in Georgia, of the Trustees, and of the Privy Council, toward the administration of justice in the colony.
Attention has been called to the fact that the town courts of Georgia were to be conducted by three bailiffs and a recorder, and that very large powers were entrusted to these officers. From a practical standpoint, justice was not well administered by them during the earlier years of the colony. This was not so much the result of a bad constitution of the courts as of inefficient officials to administer the plans of the Trustees. The position of bailiff did not require a man with legal training, and there seems to have been no one thus trained who held the position during the proprietary period. The prime requisites for the work were faithfulness, hon- esty, good judgment, and the confidence of the people. The Trustees realized that suitable men for bailiffs were scarce, and they frequently made their appointments with the knowledge that the appointees were by no means ideal, though the best available at the time. Some of those who were chosen for the position could not read or write, and most of them were inexperienced in judicial matters. It is remarkable that the Trustees did not give explicit directions or instructions to these officials whom they knew to be at a disadvantage in their new work; the magistrates repeatedly mention in their correspondence that such instructions had not been given. Besides, for years there were in the colony no law books of any description from which the bailiff's could gain information ; but this need was supplied by the Trustees early in 1741.31
One of the difficulties that hampered the administration of justice both at Savannah and at Frederica was the fact " B. T., Ga., XXI: Stephens to Verelst, Aug. 4, 1740; C. R. V: 4.99.
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that the magistrates themselves were quarrelsome. There were petty divisions and jealousies among them in both parts of the province; and this made hearty co-operation in the prosecution of crime or in other judicial matters almost im- possible. Still another handicap that faced the officers of the town courts was the lack of confidence in them which the people freely exhibited. This was partly a natural result of the dissensions among themselves ; they could not hope to impress the colonists with their fairness and dignity when they engaged in petty disputes even on the bench.32 Again, the officials of Georgia were on a level with the other in- habitants in education and experience, and sometimes be- neath many of them in wealth and social position, so that the people were more or less restive at being judged by those whom they felt to be no better qualified than themselves. Accordingly we find criminals deriding constables and tithingmen,33 peace officers defying the bailiff's,34 and Indian traders insulting all the judicial authorities.35 In order to impress the dignity and authority of the court upon the people, the Trustees sent to the magistrates of the town court of Savannah official robes to be worn when upon the bench.36 This device was worth something as a temporary expedient, but it had no permanent value. It was not until the magistrates had had years of experience and had ceased to be so jealous of each other that the courts were respected and their decisions accepted with satisfaction.
There were no lawyers in the colony. It is generally held that these were excluded by order of the Trustees, though
"C. R. IV Supplement: 24 et seq .; C. R. V: 402.
"C. R. IV: 58, 388.
" Ibid., 147-153.
85 Ibid., 641-643.
3º C. R. II: 208; B. T., Ga., IX: Verelst to Causton, Aug. 11, 1737.
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no order to that effect seems to have been issued. However, it is probable that they would desire the exclusion of law- yers, because they took every precaution to prevent undue litigation, and the presence of lawyers was thought at that time to promote suits and legal disputes. In the earlier years, the rule against the practice of law seems to have been vigorously enforced. As late as 1740 a man named Williamson who even claimed to have the permission of the Trustees to practice as an attorney was warned that he must not attempt to do so; and, in spite of the fact that he had been engaged as a solicitor in a case or two, he thought it safer not to persist in the matter.37 In later years a man named Watson established a law office in the colony and did a thriving business, especially among the Indian traders who were notoriously litigious. His practice was carried on somewhat surreptitiously and was not approved by the authorities either in England or in the colony.38
The lack of attorneys was sometimes an inconvenience, for difficult points would puzzle the magistrates, who were with- out law books and without authorities to guide them and who could hardly wait to send to England for advice. In such cases, it was customary for them to secure in Charleston the advice of a lawyer, and this seems to have been a fairly satis- factory arrangement.39
In pleading cases in Georgia, each party was supposed to be his own advocate in civil suits. At first there did not seem to be any public prosecutors in criminal cases ; but, as the colony progressed, the constables, who at first frequently sat on the jury, began to represent the colony or the crown.4º The defendant in criminal cases was supposed to be his own attorney, as in civil suits ; but delinquents fre-
"C. R. IV: 618. "C. R. VI: 145, as an example.
" B. T., Ga., XXII : 90, 176. 4º C. R. IV: 62.
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quently found voluntary advocates who were willing to aid them partly out of friendship and partly to prevent as far as possible the enforcement of certain laws.41
All juries, both grand and petit, were composed of free- holders only. Assistants to the president, pilots, naval offi- cers, and overseers of Trust servants were the only classes of persons excused from jury duty. It was not infrequently the case that a jury was hard to secure, for the recorder was often careless in summoning the jury and the jurors were somewhat negligent at first. After the court adopted the policy of fining those guilty of negligence,42 conditions improved greatly.
There was some trouble in getting juries to be moved by the evidence instead of by their own prejudices. There was a strong sentiment in Savannah against the enforce- ment of the rum act; and it was found impossible to con- vict a violator of the law, however plain the proof against him.43 So much trouble was found on this subject that the Trustees authorized the magistrates to try rum cases with- out a jury, if necessary ; 44 but we have no evidence that this extreme resort was used. In some cases the jury stood as firmly for what they thought to be right as they did in the rum cases for what they knew to be contrary to law; a notable instance of this was in the Watson case already mentioned.
When a grand jury was summoned, it was customary for one of the bailiff's to charge it in a general manner and then to recommend specifically various matters that needed particular attention. Grand juries, like petit ones, were not enthusiastic in punishing some forms of lawlessness. So
" C. R. IV: 41.
42 Ibid., 71, 100, 484-485.
" Ibid., 90-91.
" B. T., Ga., IX: Martyn to Stephens, Dec. 5, 1739,
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notorious became their conduct in this particular that on one occasion after the bailiff's charge Rev. George White- field addressed the jury on the urgent need of stopping the sale of rum and the practice of adultery in Savannah, but even his eloquent appeal was in vain.45
Grand juries were at times disposed to go outside the sphere of their duties and to make trouble for the executive officers of the colony by prying into their affairs. In order to accomplish this purpose, the grand juries in 1738 and again in 1741 claimed the right to administer general oaths to those summoned before them; that is, they wished to put men on oath to answer any questions asked-not about spe- cial crimes or cases under investigation-but about all mat- ters whatever. The magistrates vigorously denied that the grand jury had such a right; and it was finally necessary for the Trustees to make a clear declaration that the grand juries of Georgia could require oaths only to tell what the deponents knew of a particular crime or crimes. 46
The Trustees required that courts be held at fixed times and that such times should be well advertised for the con- venience of the people. It was customary that the town courts be held quarterly ; but adjournments for long or short periods were so frequently made for various causes that as a matter of fact the sittings of the court in Savan- nah at least were very irregular. Sometimes a court would be held about every six weeks, and again no case might be tried for more than half a year. As a rule the people de- sired that the courts be held at as long intervals as possible ; and on several occasions they petitioned against frequent courts. 47 No separate times were appointed for meetings of
4 C. R. IV: 495-496.
"C. R. V: 588; C. R. IV Supplement: 186-187.
" C. R. IV: 137; C. R. IV Supplement: 124,
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the court of general sessions and that of common pleas ; but criminal and civil cases were disposed of at the same term of court, and sometimes they alternated on a single day.48
In general, the rules and procedure of English courts were followed in Georgia. In a few particulars, the conditions of the new settlement made it necessary to modify the general laws of England. For instance, in selecting a jury for criminal cases, instead of allowing the defendant twenty challenges as in England, the Georgia rules allowed only six ; this change was necessary because of the scarcity of jurors in the new settlement. 49 Again, testimony against a prisoner in criminal cases was allowed by affidavit instead of requiring the witness to face the accused, though it is probable that the practice was only in exceptional cases.50 Doubtless there were many other variations from the English customs due to ignorance on the part of the magistrates, but there was slight tendency to introduce changes.
The Trustees expected that reasonable fees would be charged by jailers and by court officials, and frequent in- structions were given that tables of these be prepared; but nothing definite appears to have been done in the matter. It is not known whether or not charges were ever made at Savannah; at Frederica no fees were assessed for regular judicial proceedings, though charges were made in a few salvage or prize claim cases.51
In this study it is not necessary that a detailed history of the town courts of Savannah and Frederica, with the personnel of the judges who presided, be given ; but a brief résumé of the topic may be worth while. After the Trustees
" C. R. II: 102, as an example.
"C. R. IV: 168-169.
" Ibid., 90.
51 B. T., Ga., XXII: 168.
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had constituted courts for the new colony, they immediately selected as first bailiff Peter Gordon, as second bailiff Wil- liam Waterland, as third bailiff Thomas Causton, and as recorder Thomas Christie. These officials were commissioned by the Common Council on November 7, 1732; but they did not enter upon their duties until July 7, 1733. During the interval between these dates, Oglethorpe himself settled all disputes and punished all offenses without formal judicial action.52 While it was easier for him to do this perhaps than to bother with the regular process of law, yet it was a mistake for him to delay so long in putting the regularly appointed officials to work. It tended to minimize the im- portance attached by the people to the office of magistrate, and there were already too many influences in that direction, as we have previously noticed.
Little business was done by the court at Savannah during the first few years. Following the custom established dur- ing the first months of the settlement, many of the people referred their differences to Oglethorpe for adjudication when he was in the province; but there were so few people in Georgia that at most the legal business was small in vol- ume and in importance.
None of the early appointees of the Trustees showed re- markable ability. or skill. Peter Gordon the first bailiff seems to have been a man of no force; and, as we shall no- tice presently, his term of service in the colony was short. The second bailiff William Waterland seems not to have served at all, his place being taken by Richard Hodges, who also lived only a short while after his appointment. Thomas Causton, the third bailiff, was the most active and perhaps the ablest of those assuming office during the first year. When Hodges died, Causton was promoted to the position of
" Wright's Memoir 73.
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second bailiff ; 53 and it was only a short while until Gordon returned to England and Causton was appointed first bailiff of Savannah. His enemies accused him of having used unfair means to get rid of Gordon, and it is probable that he did take advantage of his position to advance his personal inter- ests. As storekeeper for the Trustees, he had great discre- tionary powers as to the amount of supplies to be issued to the people of the colony and as to the prices to be charged for these goods. The supplies were the only salary that any of the magistrates received. It was charged that Causton gave to Gordon such meager supplies and at such high prices that the first bailiff was practically starved into a resigna- tion. 54 Such proceedings were not unknown in Causton's later career, and the accusation may have been true in the case of Gordon.
As storekeeper, first bailiff, the Trustees' correspondent, their agent for issuing drafts, and their general agent in the colony, Thomas Causton for about three years exercised almost dictatorial power in the province. We have else- where given an estimate of him as an executive officer.55 When he became first bailiff, he had associated with him Henry Parker and John Dearne. The former was at that time so strongly given to drink that he was frequently unfit for duty ; and the latter was nearly seventy years old and crazed in body and mind. After Dearne's death, which soon followed his appointment, Robert Gilbert was selected as a bailiff ; he could neither read nor write and so he was of little service as a magistrate.56 Having such associates, Causton not unnaturally assumed a leading part in judicial
53 C. R. II: 73.
" True and Hist. Narrative, Ga. Hist. Collec. II: 201.
55 See Pages 163-164 herein.
" C. R. II: 233.
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affairs ; and for that alone he does not deserve criticism, but he is open to severe censure for some of the qualities he ex- hibited as judge. He was vain and overbearing, threatening with corporal punishment those who opposed his will; and his judgment was biased by his friendships and his hatreds. That is a serious charge to make against any judge, but the conclusion seems amply supported by the evidence.57
Causton seemed to maintain the confidence of the Trustees as a judge, and his removal from the office of first bailiff was not for misbehavior in his judicial capacity, but for mal- feasance in his executive duties. When he was deposed, Henry Parker was appointed first bailiff. He had made some improvement in his habits since his earlier appoint- ment as second bailiff, not drinking so much as before; and he made a fairly acceptable judge. He was a man of slight education and of poor business ability; but he was con- scientious and fair in his decisions, and he had good judg- ment. He held the position of first bailiff from 1738 to the end of the proprietary control over Georgia, though he al- most lost his office soon after he was appointed to it. John Fallowfield, who was the second bailiff at the time, was active in trying to persuade or compel the Trustees to be more liberal in their regulations for Georgia. On the other hand, Thomas Jones, the new storekeeper and the third bailiff, vigorously supported the Trust in all its rules.58 Parker was inclined to sympathize with the malcontents and showed them so much sympathy that the Trustees deter- mined to depose him; but he changed his views and was re- stored to favor before the resolution of deposition was car- ried into execution.59
57 C. R. IV: 27, 33, 194; B. T., Ga., XXI: Bathurst to Bathurst, Nov. 12, 1737.
58 Ibid., 476, 482-483, 590.
5º C. R. V: 192, 242.
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When the government of Georgia was reorganized in 1741, the three bailiffs of Savannah were made members of the appellate court consisting of the president of the county and four assistants ; but no appreciable change was made in the practical administration of justice. There were not enough appeals to the upper court to occupy much time with judicial business, but the bailiff's had a more active part in the executive management of the province. Nor was there any decided change in judicial matters when in 1743 the president and assistants of Savannah county were made the appellate court for the whole province. About 1750 it ceased to be a general rule that a bailiff of Savannah would ex-officio be an assistant in the province; but Parker con- tinued to be both an executive and a judicial officer during the remainder of proprietary rule. The administration of the courts of Savannah encountered few difficulties and cre- ated little stir during the last years of the Trust.
The judicial business of Frederica was of less importance than that of Savannah. Its town court was established in 1735, being patterned in all details after that of the northern part of Georgia. Dr. Thomas Hawkins was the first bailiff and had the most influence in the conduct of judicial pro- ceedings at Frederica, aside from General Oglethorpe.60 The latter resided in the southern part of Georgia from 1735 to 1743, and he exercised an almost determining influ- ence on all important affairs in that section. He was not authorized to exercise any power in judicial matters, but his will prevailed largely on account of his personal prestige and his known interest in the colony's welfare. The general re- sults of his influence were good, and the courts at Frederica moved with less apparent friction than at Savannah, though in secret some of the officials longed for a more active con- ·C. R. II: 125.
.
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trol of affairs.61
When Oglethorpe returned to England in 1743 to answer charges preferred against him by one of his officers, Haw- kins and Marriott, who were first bailiff and second bailiff respectively, also went to England as witnesses in the case. That left at Frederica only the third bailiff John Calwell. It was only a short time before Calwell began to make bitter complaints against Major Horton for interfering with civil affairs. Major Horton commanded the regiment in the ab- sence of Oglethorpe; and it is possible that he was somewhat officious in the management of affairs at Frederica. He was much abler and more experienced than Calwell, and he prob- ably was much more capable of deciding what was best than the bailiff, though of course that would not justify him in unlawful interference. The Trustees resented any domina- tion of military power over the civil authorities; and they adopted spirited resolutions on the subject which they re- quested Oglethorpe to communicate to Major Horton.62 They also resolved that no one in military service would be eligible to hold any civil office in Georgia.63
As soon as the Common Council learned that there was only one bailiff left at Frederica, it determined to suspend the town court of southern Georgia; and on January 19, 1745, the surrender of the commissions of all the bailiff's was asked."+ This action of the Common Council left the county of Frederica without any judicial machinery except that afforded by conservators of the peace. The town court of Savannah doubted its authority to try cases from south- ern Georgia, but finally decided to leave the question to the " True and Hist. Narrative, Ga. Hist. Collec. II: 103-107, 146- 148.
"C. R. I: 460-461.
" Ibid., 462-463.
"C. R. II: 442-443.
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opinion of some able lawyer from South Carolina.65 It was finally agreed that the Savannah court should try important cases, both civil and criminal, in whatever part of the colony they might occur.
No court of large powers was ever re-established at Fred- erica. The population of both town and county diminished, and the importance of that section of the colony decreased accordingly. By 1748 there was not even a constable in the county, and one was appointed for the special purpose of locating runaway slaves from the other colonies.66 In 1749 the authorities at Savannah bitterly complained that Lieut .- Col. Heron, who had succeeded Major Horton as the commander of the regiment, was assuming the civil power in the southern part of Georgia and was opposing the regu- larly authorized agents of the Trustees in carrying out their judicial work. The extent to which Heron did interfere with the administration of justice cannot be ascertained, but it is highly probable that the reports of his usurpations were exaggerated.67
In the foregoing pages attention has been centered prin- cipally upon the practical workings of the judicial system at Savannah and at Frederica. These were the only places where fully constituted town courts were established, and it was from these courts that the county and provincial courts developed. We should not leave the subject, however, with- out giving brief attention to the administration of justice in other parts of the colony. Among the Moravians near Irene, the Salzburghers of Ebenezer, and the Scotch of Darien, nearly all judicial matters were for many years adjusted by a sort of arbitration court composed of various
"C. R. VI: 144-146.
" Ibid., 209-210.
" Ibid., 207-208; 241-242.
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religious officials and perhaps others of their brethren. While these adjustments in most cases lacked legal sanc- tion, they were usually satisfactory and greatly decreased litigation.68 None of the districts mentioned had any courts to which they might resort in Georgia until 1741, when the counties of Savannah and Frederica were organized. After these outlying settlements were included in the jurisdiction of the county courts, they were too far away to receive much benefit from them. Conservators of the peace were established in nearly all sections of the province, and they were the really active judicial authorities in all the remote districts of Georgia.
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