USA > Georgia > Georgia as a proprietary province; the execution of a trust > Part 7
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If the Trustees had been compelled thus to appoint a governor, they might have put themselves into more cordial relations with the Board of Trade and the ministry in Eng- land, and so might have been aided rather than injured by the suggestions from these sources, as they feared they would be.9+
"C. R. V: 415-416.
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97
The Relation of Oglethorpe to Georgia
It is unlikely that any person could have been found who had the natural qualifications and the enthusiasm possessed by Oglethorpe, and therefore so fit to be a governor, but whatever he lacked in personal fitness and zeal might be atoned for by the other advantages mentioned above. If Oglethorpe could have remained in England he would have made a most useful member of the Trust, punctual in at- tendance, ready to work, successful in getting outsiders in- terested. He might thus have served the colony as faith- fully, if not so prominently, and during the closing years he might have been still cordial with his associates instead of absenting himself from their meetings, dissenting from their actions when present, and disputing with them as to the balance of money due on his accounts with them.
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CHAPTER IV
THE EXECUTIVE IN ENGLAND 1
I T has been made evident in the preceding chapter that James Oglethorpe did not possess plenary powers in Georgia. All through his career in the province he was directed and restrained by the Trustees in England, and we have seen that they gradually removed from him the powers which he at first exercised. This governing body in England jealously preserved its complete control of the colony, and so it is important that it be studied with some care. What were the powers and duties assigned to the Trustees by the charter? What was the nature of their organization? What was the connection between the gen- eral corporation and the Common Council? What were the relations of the Trust to the organs of imperial control in England? How was the Trust regarded by the various min- istries that ruled during its existence? By what means did it secure the support of Parliament? This chapter will attempt to answer such queries, tracing somewhat briefly the principal activities of the Trustees in England. There was no idea of the separation of powers in the grant of au- thority given to the Trustees by the charter. The corpora- tion was to combine in itself the executive, the judicial and the legislative functions of government. However, in the actual management of the province, the executive part of the work greatly overshadowed in importance the other func- tions, though it is sometimes difficult to classify strictly all the activities of the Trustees.
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The Executive in England
The Georgia charter provided for a self-perpetuating body, vacancies being filled and new members being chosen by the general membership of the Trust, but elections could be held only on the third Thursday of March between the hours of ten and four o'clock, and a two-thirds vote of those present was necessary for the election of new members. No member of the corporation could receive directly or indi- rectly any salary, fee or profit whatever from his connec- tion with it. In this respect the Georgia charter created a company entirely different from the first corporations that tried colonization in America. The first companies were founded and managed chiefly for profit, being trading com- panies in the strict sense; whereas in the case of the Georgia corporation all idea of gain was forbidden at the outset. A willingness to do disinterested public service must character- ize those who should become its members. Not only was profit forbidden on account of being a Trustee, but no mem- ber of the Trust was allowed to accept or hold any office or employment of profit that might be created by the cor- poration.1 Furthermore, while land might be granted freely to all other comers, no Trustee was allowed directly or in- directly to secure by grant or even by purchase any land or interest in land in the new colony.2 .No special qualifications or restrictions were prescribed for members of the Trust, except those just mentioned-that no one holding an office of profit under the Trust and no holder of Georgia lands was eligible to membership in it. The charter made only one provision for the resignation or withdrawal of members from the corporation ; in general a person once duly elected a member remained so whether he wished it or not, but the acceptance of office under the Trust or acquiring of interest
1C. R. I: 16.
' Ibid., 21-22.
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Georgia as a Proprietary Province
in the lands of Georgia ipso facto caused membership in the Trust to cease.
As there was a large number of Trustees at the begin- ning, and as it was intended that the number should be con- siderably increased from time to time, it was deemed too great a hardship that all of them should be convened as often as might be necessary for the proper conduct of the colony. Hence the charter provided for a Common Council which would have power to transact a large portion of the business devolving on the corporation.3 This committee of the corporation was at first established as a body of fifteen members, nine of whom were designated by name in the Char- ter, but it was provided that when the membership of the Trust should be increased, the Common Council should also be enlarged so as to have twenty-four members.+ Since it was only a committee, its members must be selected from the general membership of the corporation. They were to hold office during good behavior. It was provided that a mem- ber of the Common Council could resign under his hand and seal and that the vacancy so created should be filled at the annual meeting of the Trustees in March; but a man so resigning his place in the Common Council was still a Trus- tee, for we have already noted that there was no means by which one might resign that, responsibility. It would have been better perhaps if resignations from the corporation had been allowed, for it was of no advantage to retain the name of a man on the roll of Trustees when he had lost interest in the enterprise and was perhaps even hostile to it; but it was very necessary that resignations be allowed in the Common Council, since it was limited in membership and so those connected with it should be interested and active
'C. R. I: 19-20.
*Ibid., 14.
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The Executive in England
men. Those chosen for the Common Council were required to take an oath for the faithful performance of the duties required. Such an oath was not required of those who were members of the corporation only.5 Possibly one reason for this distinction was that, as we shall find, the Common Coun- cil was given the sole right to dispose of the money of the Trust and this provided a responsibility not shared by the ordinary members. In order to transact business, there must be at least eight members of the Common Council present; 6 but no quorum was designated for the general meetings of the Trustees. It was no doubt assumed that a much larger number than eight would be present; but we shall find that in practice three members frequently consti- tuted a quorum at the Trustee meetings.
The Trustees when assembled in regular meetings were presided over by a president. The first president was desig- nated by name in the charter, but his term of office was for a single meeting and until another was convened. After that, the office of president rotated among the members of the Common Council, each holding for a single meet- ing and for the intervening time till the next.7 No special reason appears why the office was limited to those who were members of the Council; it was likely so provided because they were under a general oath of faithfulness that was not required of the other members of the Trust. In like manner, the Common Council was to be presided over by a chairman, who was in the first instance named in the charter but was to hold office only for the same length of time as the president of the corporation. There was to be rotation in the office
5 It was not at first certain that oaths were not to be given to members as Trustees as well as Common Councilmen; and they were at first so administered. C. R. I: 118-119.
·C. R. I: 22.
' Ibid., 15.
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Georgia as a Proprietary Province
of chairman just as in that of president, except that any member of the Council could be chairman, while we have seen that not all the Trustees could act as President. A number of the regulations were applicable to both the presi- dent and the chairman. No one could hold either office twice in succession unless at the second meeting of the Trustees he should happen to be the only member of the Common Council present. In case of dispute as to the order of rota- tion, the matter was to be settled by a vote of the members of either body present at the meeting when the question was raised. The president or chairman could discuss and vote on questions under consideration just as other members, and in case of a tie either could cast a deciding vote. Neither officer could receive directly or indirectly any fee or reward whatever for acting as president or chairman.8
Having noticed somewhat the organization of the cor- poration and the Common Council, we shall now consider the various powers granted to each of them. As a rule, matters that were general in their nature were assigned to the general board of Trustees, while affairs that were more specific and minute were assigned to the Common Council, though this distinction in functions did not always hold good. In order that the charitable objects of the Trustees might be carried out, it was necessary to take collections from those who were interested in the project. The corporation was authorized to issue commissions for this purpose with the power to revoke the same if it seemed best to do so, but a report of all moneys received and expended must be laid before two of the officers of the Crown each year.9
The general corporation was authorized to establish and to put into execution with sufficient penalties all such by-
*C. R. I: 15-16.
· ¡ bid., 17,
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The Executive in England
laws and ordinances as might be necessary for the governing of the corporation, and these might also be repealed or altered by a majority vote at any meeting; but such by- . laws and their penalties must be reasonable and not repug- nant to the laws of the realm. Moreover, such by-laws or alterations must be reported and approved at the annual meeting of the Trustees in March.
The power to hold lands or other property in Great Britain and the grant of lands in Georgia were both made to the general board of Trustees.10 So also the making and enforcing of laws, ordinances and statutes for the gov- erning of the colony was committed to the same body, and it was provided that such laws must not be repugnant to the laws of the realm and that they must be submitted to the king in council for approval before they could be ef- fective.11
To the Trustees as a body was entrusted the power for twenty-one years of establishing courts of records and other courts in Georgia for hearing and determining all manner of crimes, offenses, pleas, matters, causes and things whatsoever arising in Georgia, whether the crimes be capital or not, and whether the pleas be real, personal or mixed. These courts were to have the usual power to administer oaths for the discovery of truth in matters before them.12 The general corporation also was given the power to train the militia of the province, to take all offensive measures that might be necessary for the safety of Georgia, and to declare martial law.13
The Common Council was endowed with large powers.
10 C. R. I: 12, 18.
11 Ibid., 19.
1 Ibid., 22.
" Įbid., 24-25,
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Georgia as a Proprietary Province
It was given full power to expend and apply all money and effects of the Trust in such manner as might seem to it most advantageous. It could in the name of the corpora- tion enter into contracts or other covenants connected with the purposes of the corporation. It was the duty also of the Common Council to choose and appoint treasurers, secre- taries and all such other officers or servants as might be need- ful for the efficient management of affairs in England. It should fix the salaries to be paid such officials, should ad- minister oaths of office to them through the chairman, and should remove them at pleasure. Such appointees would of course be debarred from membership in the Trust.14
It was the power of the Common Council to make all grants of land in Georgia and to specify the terms and condi- tions of such grants, except it could not, as we have seen, alienate any land to a Trustee, and it could not make grants of more than five hundred acres to any one person.15 For a period of twenty-one years, it was the function of the Common Council to nominate, appoint and commission by such names and styles as might seem to it best all such governors, ministers and officers, both civil and military, both by sea and by land, as might seem necessary for the welfare of the colony, save only such officers as might be appointed for collecting the King's revenue.16 We have al- ready noted that the only limitation put on this power of appointment was in the case of the governor, who must have the approval of the King and qualify himself according to the ordinary rules prescribed for the governors of the plantations in America.
Keeping in mind this general division of powers between
"C. R. I: 20. 15 Ibid., 21. 1º Ibid., 24.
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The Executive in England
the corporation as a whole and the Common Council, as prescribed by the charter, we must next examine the rela- tions of the two bodies in actual practice. It will be recalled that the reason assigned by the charter for the creation of the Common Council was that it would be too great a hardship for the whole body of Trustees to assemble as fre- quently as the demands of the business for Georgia might require. It would seem, therefore, that the Council was merely authorized to do certain business that the whole cor- poration would perform if it were in session, and the terms of the charter do not indicate that it was to have exclusive jurisdiction in the matters over which it was given control. The word used to describe the scope of the jurisdiction was "full," and by the ordinary rules of interpretation it would not mean "exclusive." It was not so construed by the Trus- tees themselves at first. For example, the corporation as a whole made agreements 17 and directed expenditures during the first year of its existence,18 but the interpretation that all such powers belonged only to the Common Council pre- vailed, and so the actions of the general board in those par- ticulars were expunged from their minutes and inserted in those of the Common Council so as to have the matter straight from the beginning.19
It is interesting to observe that the Common Council which was supposed to meet more frequently than the general board fell very far short of its purpose in this respect. Dur- ing the proprietary period of twenty years it met two hun- dred and fifteen times, while during the same period the board met five hundred and twelve times, or more than twice as often as the committee. The explanation of this depar-
17 C. R. I: 77-79.
18 Ibid., 82.
1º Ibid., 118-119 and C. R. II: 49-50.
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Georgia as a Proprietary Province
ture from the intentions of the charter is found in the fact that there could be no legal meeting of the Common Council without the presence of eight members, one-third of its en- tire membership, while as few as three could do business as Trustees if one of the three was a member of the Common Council. It was assumed in the regulations made in the beginning that the board meetings would be attended by a large proportion of the members, but this was not the case even at first when there was much enthusiasm over the col- ony, and toward the last years of the proprietary period, though there were some fifty or sixty nominal members of the Trust, the attendance at the meetings was ridiculously small. Of the eighty meetings held during the last seven years of the period, twenty had only five members present, ten meetings had only four in attendance, and nineteen meet- ings had only three members to do business. The fact is that the management of the Trust affairs had devolved on one or two persons, and they collected just enough Trustees who could be conveniently reached to make their proceedings regular and legal. The average attendance on the five hun- dred and twelve meetings was eight members, but there were many more times when there were less than that num- ber than times when a larger number were at hand. The annual meetings in March were usually well attended, and they, with such special occasions as the return of Oglethorpe from his first trip to Georgia and others of like nature which attracted a large attendance, brought the average of the many small meetings up to the number mentioned above.
The average number present at the two hundred and fif- teen Common Councils was nine members, only one more than the minimum required. During the earlier days, the at- tendance was larger than toward the latter part of the period. It is surprising to note how uniformly business was
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The Executive in England
done between 1745 and 1752 with just the required number present. The truth is that there was a great deal of dif- ficulty encountered in getting a quorum for the Common Council during almost all the proprietary period. In a journal which he kept for several years,20 the Earl of Eg- mont sets forth these difficulties very frequently. For ex- ample, between June 9, 1738, and June 9, 1739, there were nine instances when a Common Council was called, but not enough members were present to form a quorum.21 On other occasions, members would have to come out of the country from seven to fifteen miles in order to make the quorum com- plete.22 When it was impossible to secure a regular meet- ing, and when business was pressing, the accomptant of the Trust was sometimes asked to get the signatures of absent members who could not or did not attend.23
In 1732 the general board of Trustees began its work by having a regular meeting once a week. At first Thurs- day was the day set for the meeting, but at the beginning of 1733 it was changed to Wednesday,24 and that seems to have continued the stated day during the whole of the proprietary period. Of course there was not always one meeting per week, for the general average for the whole period was one for every fortnight, and there were many more proportionally toward the first part of the twenty years than toward the last. The greatest number in any one year were sixty-four, which were held between the annual meet- ing of 1733 and that of 1734.
The Common Council did not begin its work by having any regular time of meeting. Even during the first months,
"C. R. V is entirely devoted to this journal.
21 C. R. V : 37 et seq.
22 Ibid., 50, 53.
" Ibid., 63. 4
*C. R. I: 94.
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Georgia as a Proprietary Province
contrary to the plan of the charter, it met less frequently than the general corporation. Like the general board of Trustees, it sometimes adjourned to meet at a specified time and place, and the place and hour were usually the same as those specified for the general board.25 It was frequently the case that the same men would at one sitting transact busi- ness part of which belonged to the jurisdiction of the Com- mon Council and part of which to the corporation. On such occasions, however, the chairman of the Council and the president of the general board were kept distinct, and usu- ally at least the same man did not exercise both functions.26
It was assumed that convenient notice of meetings to be held would be given.27 Sometimes the summons was for a board meeting, and it might be turned by consent into a meeting of the Council; more frequently the summons would be for a meeting of the Common Council, and failure to get a sufficient number would limit the business to that of a board. Occasionally also notice would be sent of a com- mittee meeting, and after it was assembled, business would require that it act as a general board or as a Common Council. The notice or summons was issued in various ways. Letters were sent to the members, and this was perhaps the most common method. Notices were also put into the daily papers when matters of importance were on hand.28 It is not entirely clear on whose authority the summons for meeting would be issued. It is known that the various com- mittees of the Trustees and of the Common Council had au- thority to summon either body to receive reports or to give further directions,29 and this was done through the agency
2 C. R. II: 8 and C. R. I: 80 for examples.
*C. R. V: 390, 428, as instances.
"C. R. I: 16.
2 Ibid., 335.
" Ibid., 158; also C. R. V: 37, 39, as examples.
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The Executive in England
of the secretary or the accomptant. It seems that it was not customary to summon the whole of either body for ordinary meetings ; this was done only on special occasions.30 There is no way of determining how a distinction was made as to who would be summoned, but it was very likely on the basis of accessibility and convenience.
The place of meeting was at first in Palace Court, West- minster, and later it was in Queen's Square, but this was not definitely fixed, as meetings were held at many other places as convenience might dictate. They were held, for example, in a committee room of the House of Commons, at the private homes or lodgings of various members, and in the vestry rooms of churches. The annual meetings on the third Thursday of March were always held in the vestry of some church, usually either at St. Bride's or at St. Mar- garet's.
The annual meetings were occasions of great interest in the history of the Trust. A sermon was always preached to the Trustees assembled for the purpose, and this fre- quently dealt with some aspect of the work the Trustees were trying to accomplish. Either before or after the ser- mon, or at both times, the Trustees were assembled as a general board, and at the same time a Common Council usually met. A general report was made of the year's work. A statement of the financial condition was presented. New members of the Trust and of the Common Council were chosen, and, after adjournment, most of the members dined together at some convenient inn.31
The official year of the Trust was from annual meeting to annual meeting, and it will give some idea of the activity of the corporation and of the Common Council from year
3 C. R. V: 279, 295, 297, as instances.
$1 Ibid., 134 for example.
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Georgia as a Proprietary Province
to year to give a table showing the number of meetings held by each body during the period of their existence. In con- nection with this table, it is to be remembered that the first year lasted only from June 9, 1732, to March 15, 1733, and also that the last year was incomplete, running from March 20, 1752, to the surrender of the Trust on June 23, 1752.
NUMBER OF MEETINGS HELD BY THE GENERAL BOARD OF TRUSTEES AND BY THE COMMON COUNCIL IN EACH OFFICIAL YEAR FROM 1732 TO 1752 INCLUSIVE.
Year
Trustees
Common Council
1732-3
36
15
1733-4
64
33
1734-5
51
22
1735-6
47
28
1736-7
31
13
1737-8
45
16
1738-9
35
15
1739-40
28
14
1740-1
19
14
1741-2
16
13
1742-3
16
8
1743-4
22
5
1744-5
13
2
1745-6
10
2
1746-7
10
2
1747-8
7
2
1748-9
13
2
1749-50
10
2
1750-1
11
2
1751-2
14
3
1752
4
2
1732-1752
512
215
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These figures, decreasing steadily from year to year with a few unimportant exceptions, indicate most clearly the decay in the activities of the bodies concerned. The high- est point of interest was in the second year of the enterprise. In 1735-1736 the number of Common Council meetings in- creased on account of the large expenditures of money made possible by a generous appropriation from Parliament, and again in 1737-1738, when the British government was tak- ing over the defence of the colony and when a regiment was being raised and sent to Georgia, there was an increase of activity on the part of both the corporation and the Coun- cil. The very noticeable decrease in meetings in 1744-1745 and the years just following was no doubt caused by the continuance of the war with France and Spain, which made communication with the colony very difficult and which also precluded any hope of Parliamentary aid. Since many. of the ordinary meetings were for the purpose of discussing the news from the colony and of petitioning for money, and since these two motives were much less feeble during this period, it is readily understood why the meetings should de- crease. With the coming of peace in 1748, there was more business that required attention, though comparatively lit- tle when measured by the standards of the first year or two. Most of the meetings in 1751-1752 were concerned with the preparations to surrender the charter to the Crown.
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