USA > Georgia > Georgia as a proprietary province; the execution of a trust > Part 16
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These officers had very limited powers. They could issue warrants without limit, but all criminal cases of importance and all civil cases involving values above forty shillings would have to be determined in one of the town courts of the prov- ince. Suits or causes involving forty shillings or under might be tried by the conservator himself with the assist- ance and consent of two or three of the principal men of the community. The meagerness of the conservators' power was at times an inconvenience to the people of the colony. For instance, Augusta was one hundred and fifty miles from Sa- vannah; and a man could not afford to go to the latter place to prosecute suits for a few pounds, such as so many of the Georgia cases involved. Accordingly a petition was filed with the magistrates of Georgia to increase the power of the justice of the peace at Augusta.69 The Georgia authori- ties had no power to act on the petition, but they referred it to the Trustees with their approval. After some con- sideration, the Common Council agreed that at Augusta the justice of the peace might try and determine all causes that
68 C. R. IV: 394-395, for example.
· C. R. VI: 112-113.
.
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Organization and Development of the Judiciary
did not involve a value greater than ten pounds,70 but this was a special case, and it did not increase the power of the peace officers in other parts of the province.
In reviewing the whole of the judicial administration under the Trustees, we are impressed with the fact that so large a portion of the business was transacted at Savannah. It would seem that about two-thirds of all the litigation of the province was determined at that place. About half of the remaining business was carried on at Frederica, leav- ing only a nominal portion of it to be adjusted at other points in the colony. We are impressed also with the fact that most of the cases tried were relatively unimportant. Not many of the civil actions involved large sums, and not a great number of the criminal prosecutions were capital cases. We may explain this fact on the ground that Georgia was a new settlement having no wealth of consequence, and all business was done on a small scale, so that naturally we would not find large sums involved in disputes that might occur. Moreover, Georgia was settled by colonists who had been carefully picked, and great care was taken to prevent criminals from finding a refuge there, so that heinous crimes were not to be expected in large numbers. In the administra- tion of justice in Georgia, no new principles of law or prac- tice were raised. There were problems and difficulties in abundance, as we have noticed, that seemed to be large when considered one by one in detail; but when we consider them in the light of after years, our impression is that the courts worked smoothly on the whole and that they were probably as efficient as most of those in other provinces. The failures that occurred in administering justice, as we have seen, were largely due to the lack of experience and intelligence on the part of the colonial bailiffs.
TO B. T., Ga., Martyn to Stephens, July 17, 1745.
CHAPTER VIII
THE LAND SYSTEM
A. Charter Provisions and Early Regulations
T HE charter granted to the Trustees for Establishing the Colony of Georgia in America a seven-eighths interest in all that part of South Carolina lying between the most northern part of the Savannah river along the coast to the most southern stream of the Altamaha. The bound- aries followed the rivers just named to their heads and thence extended westward in direct lines to the South Seas. In- cluded in the grant were a seven-eighths interest in all the islands along the eastern coast to a distance of twenty leagues from the shore and a like interest in all the royal rights of fisheries, mines, and the like. The terms of the grant resembled closely those that were commonly inserted in the charters of the early English colonies, except that a full interest in the land could not be granted by the Crown since it did not possess such an interest itself.1
The Georgia corporation and its successors forever were
1 The fact that the Crown possessed only a seven-eighths interest in the lands granted to Georgia calls for an explanation. The land thus granted was a part of that ceded by Charles II in 1660 to the eight proprietors of Carolina. In 1729 the Crown had ex- tinguished the claims of seven of the proprietors by purchase, but Lord Carteret declined to part with his interest in Carolina; and the king was therefore unable to grant his eighth interest to the Trust. We shall notice later how the Trustees secured control of Carteret's interest in Georgia land.
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The Land System
constituted absolute proprietors of the land, which was to be held "as of our honor of Hampton Court, in our county of Middlesex, in free and common socage, and not in capite," paying therefor yearly the sum of four shillings per hun- dred acres for all the land that the corporation should grant, but the payments were not to commence until the lands had been occupied for ten years.2 The expression "in free and common socage" meant that the tenure by which the Trus- tees held of the king was to be one of fealty and a definite service, a money payment in this case. The penalty was escheat. The possessors of land in the colony, however, would hold it directly of the Trustees and not of the king. All the lands so granted were organized into an independent and separate province by the name of Georgia, so called in honor of King George II:3
The details of granting lands to the settlers were left in the hands of the Common Council of the Trustees, though they were restricted in two important particulars. Under no pretence whatever, might land be granted either to a Trustee or for his benefit either directly or indirectly. Again, the Common Council was forbidden to make any grants at all of more than five hundred acres in the aggre- gate. The first of these restrictions is easily understood, for it was the constant policy of those who managed Georgia affairs that it would be entirely a philanthropic matter and that their services should be freely given to the enterprise.+ The other restriction dealing with the size of grants must be viewed in the light of experience in the various English colonies already settled; and it will be later discussed in that connection.
*C. R. I: 18.
' Ibid., 19.
'Ibid., 22.
-
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Georgia as a Proprietary Province
After the Trustees had secured their charter and secured in trust Carteret's one-eighth interest in Georgia land,* they undertook to outline a few fundamental features of a per- manent land policy. It was at once agreed that all lands in Georgia should be free, that no profit should be attempted either from the sale or lease of any land in the colony. It · was also readily determined that grants should be entailed, and that they should be small in extent. As was common in the proprietary and royal provinces at that time, a quit rent was levied on such lands as might be granted by the Trust.
There were no definite rules printed to set forth the de- tails of the principles thus adopted ; but frequent grants were made to individuals, and these deeds indicate with sufficient clearness the conditions on which the settlers secured their grants. A typical deed would lay down the following regu- lations under which land might be granted to an applicant: (a) That the grantee be a male twenty-one years or more of age; (b) That he come to Georgia within twelve months and establish a settled abode; (c) That he do not leave Georgia within a period of three years without a proper written license; (d) That fifty acres be granted him in tail to his male heirs; (e) That the land be speedily cleared and cultivated; (f) That the grantee plant and preserve one hundred white mulberry trees ; (g) That the land could not be aliened, transferred, or assigned without a special license from the Common Council; (h) That the Trust could re- enter on any grants concerning which the conditions had not been met within a period of ten years after the grant; (i) That a quit rent of four shillings per hundred acres be paid annually after a lapse of ten years from the time of the grant.5
* See page 250 of this work.
' B. T., Ga., XII: 4 et seq.
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The Land System
As these regulations were generally followed in all the earlier deeds to the settlers of Georgia, it is necessary that we examine them briefly. The provision that the land be held in tail male aroused the greatest objection on the part of those who were going to Georgia. This method of inherit- ance had become antiquated in England, and it had not found favor in any of the older British provinces. The Trustees, however, felt that conditions in Georgia required the regu- lation. The colony was established as a frontier settlement, and they constantly kept in mind that its purpose was semi- military. As a result, the Trustees regarded each lot of land as a military fief. The consideration of its grant was not alone the quit rent that would be paid and the personal settlement of the grantee in the colony, but it included also service in actual warfare and constant assistance in per- forming guard and jury duties. It was felt that tenure in tail general would greatly diminish the military strength of each township; for the female heir who was unmarried would be entitled to a lot and would consequently take from the garrison the portion of a soldier. Women could not serve as soldiers nor sit on juries ; and the duties of keeping guard and of serving on the jury would come oftener upon each man, if tenure in tail general were permitted; and, in case of sudden attack by the Spanish or French or Indians, the township might be crippled in making a proper defence.6
Objection was also made to the small size of the lots given to each family. The Trustees replied that the amount was fixed at just the quantity that was deemed sufficient for the immediate needs of the settler and his family. Fifty acres were thought sufficient for this purpose, and yet not too much for careful cultivation. It was regarded as very undesirable that any waste or uncultivated land be permitted
" Account Showing Progress, C. R. III: 374.
£ 1
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Georgia as a Proprietary Province
in a settlement, and the plan of the Trustees was that an industrious man who put fifty acres into good shape might secure more land, while an idler who neglected his grant would not deserve a larger estate. To prevent- a destruc- tion of this democratic system of equality in landholding through the accumulation of lots in the hands of one man, various rules had to be adopted; and further regulations were necessary to prevent the division of lots into parcels too small to support a soldier-planter and his family.7
The tenure in tail male already mentioned would operate to prevent the accumulation or division of lots. Without that tenure, intermarriages might unite several lots into one; or the division of the inheritance among several daughters might reduce each portion to a very few acres. In addition, the Trustees determined not to make their grants in fee simple. If the planters had the right to alienate their lands, as the fee simple tenure would permit, a rapid accu- mulation of lots in the hands of a few men would be prob- able; and mortgaging and leasing of lands would result also in further accumulations.
Besides the keeping up of the democratic system of equal- ity in landholding, there were other reasons why the Trus- tees thought it unwise to grant lands in fee simple to the settlers. The latter were for the most part people who had managed poorly the property they had possessed in Eng- land, and it did not seem wise to trust them with an absolute gift of lands in Georgia until by discreet and industrious behavior they had given evidence that they would prove bet- ter managers than they had been in the old country.8
Again, the inhabitants of Georgia were sent over to se- cure by their personal residence the lands to be granted
C. R. III: 373.
8 Ibid., 374.
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The Land System
them, and they voluntarily agreed to reside on their lots and to cultivate the same, before they could get grants from the Trust; so that the Trustees bore the expense of carrying them to the colony, of providing support for them for a year, and of giving them tools, arms and other necessary things. Thus the settlers sold for a valuable consideration their personal residence, their labor, and their industry; and it was not proper, the Trustees thought, to jeopardize the advantages of all this expense by granting such a tenure to the people who would enable a man to sell his lot and leave the province after having been the object of so much charity.
Besides, the right of the free sale in the hands of the colonists would likely lead to the introduction of all sorts of people into Georgia. The colonists who went at the ex- pense of the Trustees were carefully selected, and only those were accepted who seemed of good character; but, if these people could freely dispose of their grants, the Trustees would have no means of knowing whether the purchasers were proper citizens for the new colony or not. They feared that Catholics might secure a foothold in the colony, and they were also apprehensive lest agents of the Spanish on the south or of the French on the west might be able to settle in Georgia and serve as spies.9.
Another inconvenience of 'permitting the tenure of fee simple in the colony, the Trustees argued, would be the over- throw of the letter and intent of the charter which required that not more than five hundred acres of land be granted to any person. They averred that the object of the clause was to prevent there being in the province larger than five hundred acre plantations, and that they might as well grant themselves in the first instance larger amounts of land as ºC. R. III: 374-375.
1
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Georgia as a Proprietary Province
to permit such regulations as would speedily result in large holdings through free purchase and sale.10
The rules of the Trustees limiting the size of grants pre- scribing tenure in tail male, and forbidding the alienation or mortgaging of lots, were the ones that called forth the greatest dissatisfaction from the settlers when the colony was first planted. Other rules were found later to be bur- densome, but we do not need just here to consider them. The Trustees realized that some of their provisions might work a hardship in special cases, and they arranged to give relief when it was needed. Upon application to the Trustees, a man might secure the privilege of renting, leasing or even of selling his land, if there were cause for it. In like manner, it was agreed that a wife or daughter might be made the heir to a lot upon the presentation of facts showing the need for such an arrangement; and actual relief was granted in sev- eral cases.
As we have noticed, the various land regulations were not formally published, and it is not certain that they had been definitely established by any act of the Trustees, though the ones outlined above were generally followed during the first two or three years of the settlement of Georgia. In 1735 the Trustees deemed it advisable that their requirements be given definite form, and they were issued under the caption "Rules for 1735." There were not many changes made in the regulations under which the colony was already being settled, but a few of these may be noted. It was definitely agreed that all the persons sent at the expense of the Trust would be settled in groups either in towns or in smaller vil- lages, being assigned fifty acres each for their support.11
While the same rules as to tenure in tail male were speci-
"C. R. III: 375,
" Voyage to Georgia, Ga. Hist. Collec. I: 80-84.
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The Land System
fied and while it was stated that the lands should revert to the Trust in case of the failure of male heirs, the Trustees asserted that they would have "a special Regard to the Daughters of Freeholders who have made improvements on their Lots," if these daughters were not provided for by marriage to some one already possessing land. The provis- ions meant that the Trustees would grant the improved lot to the husband of such a daughter if he did not have one, or that they would recompense the daughter or daugh- ters for the improvements made and would then grant the land to some one else.
The rule against the leasing, renting, or alienating land was also maintained; but it was permitted that the wives of freeholders who survived their husbands should be entitled during their lives to the house and to one-half of the im- proved lands held by their husbands. At the death of a wife thus holding a life estate, the whole property would revert to the Trust.
It was thought necessary to be somewhat explicit about the cultivation of lands within a definite period; and it was required that if any part of a grant were not cultivated, planted, cleared, improved, or enclosed by a worm fence six feet high within ten years after the grant was made, such a part would belong to the Trust and the grant as to that part would be forfeited.12
So far as we can ascertain, it was also in 1735 that the first full statement was made public as to the conditions upon which land would be granted in Georgia to adventurers going at their own expense. The rules were prepared on the assumption that each adventurer would take to the colony ten able-bodied white men as servants, but it was not requisite that so many be taken. To a person taking over 12 Account Showing Progress, C. R. III: 410.
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Georgia as a Proprietary Province
the full ten servants, a grant of five hundred acres would be made, and smaller concessions were made to those taking over fewer servants.
It was required of such adventurers that they go to the province and enter upon the task of improving their grants within twelve months after the deeds were made. They must register their grants within one month after they were is- sued ; and they must abide in Georgia three years after their grants were registered unless they were duly licensed to leave. Within ten years after his grant was issued, each ad- venturer was required to cultivate or improve one-fifth of the land given to him, and he was also required to plant and duly cultivate a thousand mulberry plants on each hundred acres of land to be cleared, the Trustees undertaking to fur- nish the plants.
The same regulations as to tenure in tail male, fencing the property, leasing or alienating the estates, the privi- leges of daughters and widows, and reversion to the Trus- tees, were made for the grants to gentleman adventurers as applied to those who were beneficiaries of the Trust.13 In addition, it was specifically provided that no adventurer could form a partnership to make potash though it was al- lowable for any one to manufacture it individually.1+
We have already noticed that the Trustees were disposed to prevent if possible any undue hardship which their rules might work in individual cases. They always relented when they found that suffering would be the result of carrying
" Voyage to Georgia, Ga. Hist. Collec. I: 80-84.
" This rather curious provision was due to the fact that the Trustees had granted for a period of years all the privileges of making potash in Georgia through companies or partnerships to a company of twelve men. This group did not fulfill the conditions of their grant and never began operations, but they were expecting to do so when the "Rules of 1735" were issued.
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The Land System
out the letter of a law. For instance, the rule was that lands granted to a man were to revert to the Trust in case of a failure of male issue, but the Trustees regularly gave to the female heirs or to the nearest relatives the value of whatever improvements had been made by the deceased. The general result of the whole policy pursued was that the regu- lations were not particularly burdensome in fact ; but people read the letter of the rules without knowing the spirit in which they were executed, and many were deterred from going to Georgia on account of the severity of the require- ments. The growth of the colony was unquestionably de- layed in this way.
B. The Struggle for Better Land Regulations
The people of Georgia from the beginning had felt the land laws under which they lived to be a burden, and they appeared restive from time to time on the subject. By 1738 the dissatisfaction was becoming so manifest that the Secretary of the Trustees William Stephens began to refer frequently to the situation in his letters and journals which were sent to the Trustees. . Some of the leading men in the colony were threatening to leave if some relief were not granted, for they claimed that they could not get credit with business men outside of the colony so long as they were not able to show fee simple estates.15 The Scotch who lived at Darien protested in a body against the tenures, and a universal defection among them seemed imminent.16
The dissatisfaction which had been more or less smoth- ered for some years developed toward the close of 1738 into a formal complaint and petition to the Trustees. This
15 C. R. IV: 11, 15, 29. 16 Ibid., 239.
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Georgia as a Proprietary Province
document was signed by one hundred and nineteen freehold- ers of the Savannah region. The petition set forth the need of fee simple tenure for their land, asserting that this would result in the coming to Georgia of many settlers from the other colonies and would encourage those already in the province to try to repair their shattered fortunes and make provision for posterity. The petition also sought the use of negro slaves in Georgia. The latter part of the represen- tation was opposed by the people of Darien and Ebenezer ; and it attracted so much attention that the question of land tenures, though put first in the petition, was overshadowed in importance. The Trustees indignantly rejected both items of the petition and severely rebuked those magistrates who had taken the lead in formulating and circulating the petition.17 There can be little doubt that the attitude of the industrious Salzburghers and Scotch made the Trus- tees feel that they were entirely right in rejecting the por- tion of the petition that related to slavery ; and, as has been mentioned, they did not differentiate with care between the parts of the representation. Seventy-five of the landholders of Savannah did not sign the paper; eighteen of the Scotch, and fifty-one of the Salzburghers, protested against the slav- ery portion of the petition. From the province as a whole, there were apparently others who were either indifferent to the project or actually opposed the matter; and it is not surprising to find that the Trustees opposed the general policy of changing the existing laws,18 though they had al- ready modified them to some extent and continued to do so almost every year. In their reply to the Georgia petition the Trustees appealed to the verdict of posterity as to whether they or the petitioners were the best friends of the
17 C. R. III: 422 et seq.
" Ibid., 427 et seq.
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The Land System
colony. There can be no doubt that the Trustees had less of selfishness in their service of Georgia than had the mal- contents of the province, and they were endeavoring to be disinterested friends of the colony ; but candor compels one to admit that the representation of the residents of Savan- nah set forth a wiser policy than that pursued by the Trus- tees.
One of the earliest modifications of the land laws was passed by the Trust in the beginning of 1739 before the petition just mentioned had reached England. The Trus- tees were moved to the action by the reports of dissatisfac- tion that Secretary Stephens had sent so frequently, and they felt that conditions had changed considerably since the first establishment of the colony. The province was mak- ing fair progress; the population had increased; and the presence of a regiment made the matter of defence less press- ing than when the colony was first established. There seemed no good reason why some concessions should not be made. Accordingly at the anniversary meeting of 1739, it was en- acted that in default of male issue the legal possessor of land might by deed, will, or testament appoint his daughter or any other male or female relative to inherit his lot; but the inheritance would be entailed to the male heirs of such a successor, and the heir so appointed must claim his in- heritance in a court of Georgia within eighteen months after the death of the testator. The regulation was shortly broad- ened so that the owner of land might appoint any person whatever, whether a relation or not, to succeed him in his inheritance.19
Shortly after these concessions were adopted, the Trus- tees received the representation from Georgia; and, as we have seen, they rejected it emphatically. We should expect " C. R. III: 394.
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