Memoirs of Georgia; containing historical accounts of the state's civil, military, industrial and professional interests, and personal sketches of many of its people. Vol. II, Part 35

Author:
Publication date: 1859
Publisher: Atlanta, Ga., The Southern historicl association
Number of Pages: 1166

USA > Georgia > Memoirs of Georgia; containing historical accounts of the state's civil, military, industrial and professional interests, and personal sketches of many of its people. Vol. II > Part 35

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form of pneumonia. His wife was sent for; his sympathetic medical brethren aided her in her affectionate and devoted ministrations. At one time the disease seemed to be checked, but the arrest was only simulated; he grew weaker and on the morning of Saturday, Dec. 6, 1884, departed this life, following, as we have creditable evidence, those who had endeavored to imitate the Good Physician. Even this brief narrative of the life of an exalted member of the medical profes- sion would be very incomplete if we did not record one or two more allusions to the quality of the work that he did day by day for the patients who leaned upon him for sympathy and treatment. He was always on the alert to learn anything which might be for the advancement of his science and art. He was ready to seize a new idea, to develop and utilize it. He was studious and meditative in the line of his calling, notwithstanding the activity of his life, and succeeded in finding time to keep up with the advance in medical literature. It is to be regretted that he did not write more. His paper on "Dengue" in the sixth volume of the Transac- tions of the American Public Health Association is an admirable contribution to the discussion of that obscure and distressing malady. His opinions, oral or written, on medical questions of the day, were always marked by freedom from passion, and by a plain intention to avoid on the one hand the bondage of prejudice, and on the other hasty deduction and restless change. While he was alive to every good impression and suggestion of progress, he was deliberate and judicial in committing himself to that which was new. His honesty and prudence was manifested in these and many other ways, and his patients and professional brethren trusted him implicitly, and were not disappointed. His personal appear- ance was most attractive and commanding. Tall in stature, he was erect and vigorous in his carriage, impressing even casual observers with the fact that he was a man of more than ordinary force. He carried a good head above broad shoulders; his face was "benignant and serious" and on his manly features a light was radiant which came from a good heart. There was an indescribable quality in his presence and manners which won the confidence of all, but especially impressed and charmed his friends and companions. It is a source of joy and inexpressible satisfaction that there are so many good and true men in the medical profession of the United States. The whole fraternity may well join in thankfulness that the career of Dr. Thomas among his colleagues, neighbors and friends, was blessed as it was to his family, his patients, and the state; that he attempted with so much modesty and unflinching purpose to realize in his daily work and in his public service so high an ideal, and that his last professional act, in the performance of which he gave his life, included the grand idea of the broth- erhood of nations and the community of science and benevolence. From those who knew him well the source of the power in his life was not hidden; it sprung perpetually from an humble belief, not only in the supernatural, but in a personal, triune God, upon whose mercy he had cast himself, and whose law he strove to know, to love and to obey.

W F. WESTMORELAND, M. D., was born in Fayette county, Ga., Jan. I, 1828; died in Atlanta, Ga., 1890. His father, Robert Westmoreland, was a planter of Fayette county. The Westmorelands of the United States have de- scended from three brothers, who, prior to the war for American independence. came to this country from England and settled respectively in the states of Penn- sylvania, Virginia and North Carolina. The character of this family may be inferred from the fact that a county in each of these states bears their name. The subject of this sketch is a descendant of the North Carolina branch of the family. Having received primary instruction in a neighborhood school of his native county, his education was completed at a high school at Griffin, Ga. He began the study

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of medicine in 1848, and took his first course of lectures in the medical college of Georgia in the session of 1848-9. His second course was taken at Jefferson medical college, Philadelphia, Penn., from which college he graduated in 1850. Returning to Georgia he commenced the practice of medicine in Fayette county, but in July, 1851, moved to Atlanta, where he prosecuted a successful and profitable practice until the fall of 1852. At this period he placed himself under the special instruction of Dr. Paul F. Eve, then professor of surgery in the medical department in the university at Nashville, Tenn. There he remained for eight months, enjoying excellent opportunities for acquiring knowledge in this branch of his profession. His tastes led him to surgery, and in order to further perfect himself in this branch he went to Paris in the winter of 1852. He attended upon the lectures of Valpeau, Nelaton, Rioux, Ricord and other eminent men of the profession, and applied him- self assiduously to the details of that branch of medical science. He remained in Paris for about two years, enjoying the instruction of the most distinguished pro- fessors of Europe and opportunities for acquiring practical knowedge of surgery which were unsurpassed on the continent. Appreciating these advantages, they were improved by him to the utmost. In 1854, while he was in Paris, he was chosen professor of surgery in the Atlanta medical college. He accepted the appointment, and returning home entered promptly and earnestly upon the duties of the position. In 1855-6 he delivered a course of lectures upon surgery in the Atlanta medical college, which demonstrated his thorough knowledge of this branch of the pro- fession, establishing at the same time a reputation for a great skill as a surgeon by the successful performance of many delicate and difficult operations. In 1855 he founded the "Atlanta Medical and Surgical Journal," and assumed the position of editor. Until the year 1877 he continued his connection with the "Journal," either in the relation of editor or proprietor. Although he had acquired an enviable distinction as a surgeon, he aspired to higher attainments and still greater skill. To gratify this laudable ambition he again sailed for Europe in September, 1856. As on his previous visit, he located in the French metropolis, and attended the lectures of the most eminent physicians and surgeons of that country. In addition to his attendance upon the lectures of these distinguished professors, he became a private pupil of Dumas, the celebrated oculist; Robin, the microscopist, and Verneille, surgical pathologist, embracing in the scope of his studies and special instruction everything auxiliary to a complete knowledge of surgery. In 1857, he returned to Georgia, bringing with him as trophies of his assiduous studies, certificates of proficiency from the learned professors mentioned. Locat- ing in Atlanta, he entered at once upon the practice of surgery, his renown as a surgeon constantly growing until his fame extended over the entire country. The war of the states came on, and relinquishing a large and lucrative practice, he tendered his services to his native section These were promptly and cordially accepted. As surgeon in the field, his knowledge and skill proved invaluable to the southern army. Faithful, efficient and patriotic, he enjoyed the fullest confi- dence and esteem of those in power and command, while many a hero who bled for the southern cause realized his skillful and kindly ministrations on the field of conflict. Wherever ordered he went with alacrity, considering only the will of his country. Devoted to the cause of the southern Confederacy, he followed her for- tunes with pride and hope until the last day of conflict, when, at Appomattox, her flag was furled forever and the cause for which her heroes had battled was lost. Turning sadly homeward, in sympathy with the people of the south, he in due time arrived in Atlanta, desolated by the merciless invader, and resumed the practice of his profession. Although thorough in every branch of medical science, and eminent as a general practitioner of medicine, he particularly devoted himself to the practice of surgery. His success in this branch of the profession was eminent,

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and made him a reputation that extends to every state of the republic, classing with the comparatively small number of our race who have fully achieved the purposes of their ambition. He was a prominent figure in any gathering of his profession. In the medical society of his city he was president of the Atlanta academy of medicine, was a member of the medical association of Georgia, and elected its president in 1873. He was a prominent member of the American Medical asso- ciation and frequently attended its sessions. Dr. Westmoreland was one of the most renowned medical teachers in America. For thirty-eight years he was pro- fessor of principles and practice of surgery in the Atlanta medical college. His fame as a teacher added greatly to the prestige of the school. He contributed many valuable papers to the literature of his profession. His writings marked him as a physician and surgeon of profound acumen. His writings were of that high order which must cause him to live in the records of scientific medicine. Dr. Westmoreland was one of nature's noblemen. He was the friend of humanity. Though dead he yet lives; lives in the hearts of a grateful people, to whom he so skillfully and unselfishly devoted his life; lives in the hearts of his professional brethren, who loved him for his manly, chivalrous nature, his loyalty to friendship, and his wonderful professional acumen.

SAMUEL G. WHITE, M. D., was born in Milledgeville, Nov. 17, 1824; died in his native city May 13, 1877, aged fifty-three years. His medical education was acquired at Jefferson medical college, Philadelphia, Pa., from whence he was grad- uated M. D. in March, 1845. That he stood high in the esteem of the faculty of this renowned school is attested by the fact that during a part of his last term he filled the position of demonstrator of anatomy in this institution. In 1846 he was appointed assistant surgeon of the United States navy, and remained in this service until the conclusion of the Mexican war. Dr. White resigned from the navy, settled in Milledgeville and practiced his profession until 1859. He then went to Europe, attending lectures and clinics abroad until the commencement of the war between the states. When the tocsin of war was sounded Dr. White promptly returned home, offered his services to the southern cause, and was commissioned surgeon of Cobb's legion of Georgia cavalry. He continued in this position during the entire period of the war. Dr. White was a chivalrous, skillful officer, and was greatly loved by the soldiers. He delighted to accompany his command in the thickest of the fight, and heroically ministered to his wounded comrades in the midst of the shot and shell of the enemy. He was one of the ablest surgeons of the army, and with great skill performed many capital operations during his four years of military service. Upon the cessation of hostilities he returned to Milledge- ville worn down by honorable service to his country. In common with his people he found himself penniless through the confiscations of property visited upon the southern people by the victorious north. Nothing daunted by this misfortune, he consecrated himself anew to the relief of human suffering, and practiced his pro- fession among the friends of his childhood home until stricken with paralysis, which terminated fatally in May, 1877. Among his people he was the beloved physician, and ministered to the sick and afflicted with skill and tenderness rarely excelled. He was an humble follower of the Great Physician, occupying the position of ruling elder in the Presbyterian church in his native city. At one time Dr. White was president of the board of medical examiners of Georgia, and filled the duties of this honorable position with the faithfulness, zeal and ability which characterized him in the discharge of every duty placed upon him.

CHARLES N. WEST.

CHAPTER VI.

BY CHARLES NEPHEW WEST.

THE BENCH AND BAR OF GEORGIA-FIRST PERIOD, 1733-1752-GEORGIA UNDER THE TRUSTEES-THE FIRST COURT-THE CHARTER-BAD APPOINTMENTS- BAILIFFS-CAUSTON TRIUMPHANT-JOHN WESLEY'S LOVE AFFAIR-WES- LEY IN FLIGHT-CAUSTON'S FALL-HENRY PARKER-FREDERICA'S COURT -NEW COURTS-WILLIAM STEPHENS-CONSOLIDATION OF COURTS-JUDI- CIAL ARRANGEMENTS - NO LAWYERS ALLOWED -SUNDRY CHANGES- JAMES HABERSHAM-SECOND PERIOD, 1752-1777-THE CROWN JUDICIARY- COURT OF VICE-ADMIRALTY-ROYAL JUDGES-NOBLE JONES-JONATHAN BRYAN - LAWYERS ALLOWED -WILLIAM GROVER - ANTHONY STOKES- "CRACKER" IMMIGRATION-"CRACKER" CONQUEST-THIRD PERIOD, 1777-1789 -GEORGIA DURING THE REVOLUTION-CONSTITUTIONS OF 1776 AND 1777- DISTINGUISHED MEN OF THE TIME-EARLY BAR-FOURTH PERIOD, 1789-1796 -GEORGIA AFTER THE REVOLUTION-JUDICIARY ACT OF 1789-SUPERIOR COURTS-MIDDLE CIRCUIT CREATED-APPELLATE PROCEEDINGS-SUPE- RIOR COURT JUDGES-SUPERIOR COURT DAYS, 1797-1846-NO SUPREME COURT -CIRCUIT RIDING-SENATOR FROM GEORGIA-ATTORNEY-GENERAL-DISSO- LUTION OF JACKSON'S CABINET-SENATOR AGAIN-CHARACTER-WILLIAM HARRIS CRAWFORD-FIFTH PERIOD, 1846-1895-GEORGIA UNDER A SUPREME COURT-PROMINENT JURISTS AND LAWYERS-GEORGIA UNDER A CODE OF LAWS-THE VARIOUS CIRCUITS.

FIRST PERIOD. GEORGIA UNDER THE TRUSTEES, 1733-1752.

T HE 7th day of July, 1733, was a great day in the little hamlet of Savannah. Doubtless the sun rose as red and hot on that day as it usually does on the 7th of July upon that coast-declared afterward by a departing gov- ernor, Ellis, to be the hottest country of which he knew. Said he pathetically, "I have traversed a great part of this globe, not without giving some attention to the peculiarities of each climate, and I fairly pronounce that I never felt such heat anywhere as in Georgia." But this was before the days of remote travels, and a comparison now might give the coast of Georgia comfort. But July as it was, hot or cold, there was business to be done, and whether Gen. Oglethorpe mopped his fervid brow or critically eyed the rafters and roof of the "court house and chapel" to see if his carpenters had done him good work against a summer storm, the business of the colonial parturition had to go on. All day long there were great public acts being done-acts of a sort which made

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the day most memorable to the colony and its settlers-a day from which they could fairly say that the history of the town and of their property in it had com- menced. The time had arrived when the colonists-some 300 strong-were to emerge from the confusion and abeyance of settlement into organization and some sort of permanency. The impecunious settlers came from their lines of board and log houses, in which they had lodged for some five months, and wended their various ways early in the morning under great pines to the little courthouse, new, stanch and unpainted, which stood where the United States custom house now stands. Oglethorpe and his confidentials came also in great state from the general's quarters on the bluff, with salutes of artillery and ringing of bells, and presided over the birth of the new colony, called together in its first meeting. It opened with prayer for divine blessing and assistance, badly enough needed in the future affairs of the infant colony about to be born. Then were named in order the various wards, tithings and streets of the town, from which time henceforth the Savannese could tell himself where he lived. All this was duly explained by the good general to his delighted followers, with the appropriate reasons for the various names given, few of which reasons have survived to the incurious citizens, although perpetuated in print. After that ensued the allotment of land, in which the settlers were more personally interested-each male inhab- itant, so benefited, presumably being the head of a family, existing or in expectancy. These exercises occupied all morning, and the energies of the colonists were then refreshed by a fine dinner at the general's expense, washed down by plenty of English beer.

THE FIRST COURT.

But the events of the long July day were not yet over. The general, who had hitherto retained to himself as governor all legal authority in the afternoon opened the first court ever held in Georgia. Judges there were, appointed by the trustees in the previous November, but hitherto they had discharged no duty. Under the orders of Oglethorpe, Geo. Symes, Richard Hodges and Francis Scott, known as "bailiffs" of the town, took their seats as judges of the civil and criminal court, with Noble Jones as recorder (or clerk) and Richard Cannon and Joseph Coles as constables, and proceeded to try the first case in the colony, with Samuel Parker, Thos. Young, Joseph Cole, John Wright, John West, Timothy Bowling, John Milledge, Henry Close, Walter Fox, John Grady, Jamies Carwell and Richard Cannon as the jury.

In these names we see but two, Jones and Milledge, which we recognize to-day as represented in Georgia; and another curious feature, indicative of the paucity of good jurors, is in the fact that both the constables were on the jury. All duly commissioned and sworn, and certainly fuller of good beer than of legal knowledge, the bench of Georgia undertook its duties, without a bar, in the presence of the general himself, and doubtless with great dignity, yet with many internal tremors, and the wheels of judicial inquiry commenced to move. One hundred and sixty years have passed since that court sat on the afternoon of that July day. Oglethorpe's high court sat in a little frame house on the bluff of the Savannah river, without bar or library. To-day, 300 miles away, the highest tribunal of the state sits in a splendid room of a magnificent granite building, hearing over 600 appeal cases in the year, argued by hundreds of learned counsel. They come to that room from an immense law library at the other extremity of the capitol, and the court itself is surrounded by luxurious chambers and its own judicial library. The first court administered such law as it knew for a few hundred people. The supreme court corrects the errors of the judges for twenty-

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three circuits, who themselves revisc a host of minor judicatories, and try the legal contentions of nearly 2,000,000 of souls. Oglethorpe would have marveled indecd if he could have seen these results of his colonial venture and the growth of the court that administered law under his eyes in 1733.

THE CHARTER.

The authority of Oglethorpe to establish courts in Georgia was derived from the trustees of the colony, who in their turn received their power by charter from the crown of England. That instrument sanctioned by George II., June 9, 1732, for the purpose of creating a provisional government for the colony which Ogle- thorpe designed to settle, provided:

"That for and during the term of twenty-one years, to commence from the date of these our letters patent, the said corporation assembled for that purpose, shall and may form and prepare laws, statutes and ordinances, fit and necessary for and concerning the government of the said colony, and not repugnant to the laws and statutes of England, and the same shall and may present, under their common seal, to us, our heirs and successors, in our or their privy council, for our or their approbation or disallowance; and the said laws, statutes and ordinances being approved of by us, our heirs and successors, in our or their privy council, shall from thenceforth be in full force and virtue within our said province of Georgia."

It further provided:

"And we do, of our further grace, certain knowledge and mere motion, grant, establish and ordain, for us, our heirs and successors, that the said corporation and their successors, shall have full power and authority for and during the term of twenty-one years, to commence from the date of these our letters patent, to erect and constitute judicatories and courts of record, or other courts, to be held in1 the name of us, our heirs and successors, for the hearing and determining of all manner of crimes, offences, pleas, processes, plaints, actions, matters, causes and things whatsoever, arising or happening within the said province of Georgia or between persons of Georgia; whether the same be criminal or civil, and whether the said crimes be capital or not capital, and whether the said pleas be real, personal or mixed, and for awarding and making out executions thereupon; to which courts and judicatories, we do hereby, for us, our heirs and successors, give and grant full power and authority, from time to time, to administer oaths for the discovery of truth, in any matter in controversy or depending before them, or the solemn affirmation to any of the persons commonly called Quakers, in such manner as by the laws of our realm of Great Britain the same may be admin- istered."

BAD APPOINTMENTS.

It is obvious to us that the great body of local laws enacted by the trustees for the government of the colony before any fair test of its difficulties had been made, and perhaps all appointments of persons named in advance for the admin- istration of those laws, must, in the very nature of things, have been largely theoretical. Some experience indeed had been drawn from the history of other colonies, but in each of the colonies of the United States the organization was so much independent of others and made by different classes of people for diverse purposes, and under various circumstances, that it was practically impossible to do more than theorize concerning the new colony about to be established in the exercise of purely benevolent designs. We need not, therefore, be surprised to find grave mistakes made by the trustees both in the enactment of laws and in the selection of officials. Nowhere was this more visible than in the appointment

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of judicial officers. The trustees, in pursuance of the power invested in them, arranged for the establishment of a court in Georgia, for the trial of causes both civil and criminal, to be called the "town court"; for the appointment of magis- trates, three bailiffs, a recorder, two constables, and two tithing men. Doubtless as usual, most of these appointments were made by favor; such is the habit now, and even more was it the habit then. The court was empowered to take jurisdic- tion of "all manner of crimes, pleas, offenses, processes, plaints, actions, matters, causes and things whatsoever arising or happening within the province of Georgia, or between persons inhabiting or residing there, whether the same be criminal or civil, and whether the said crimes be capital or not capital, and whether the said pleas be real or personal or mixed; to be tried according to the laws and customs of the realm of England, and of the laws enacted for the said province." The three bailiffs were to be the judges, the recorder acting as clerk, and freeholders only were admitted as jurors. The names of the first bench of bailiffs have already been given, they having received their commissions a few days before the depart- ure of the first vessel. We do not know of any who conferred great honor upon the bench. They must have been men of some sort of significance to have received their appointments before the colonists left England, but in no other way can their fitness be inferred.

BAILIFFS.

Some criticism has been expended upon their official titles, by which they became judges of the new court, and it has been thought that there was a mistake in conferring the large powers invested in them upon that court, because the judges were called "bailiffs." The objection, however, seems to be hypercritical. The name itself, it is true, had been applied in Europe to a very different sort of judicial officer, but it would seem to be a matter of no importance whatsoever whether the new judges were called bailiffs, justices, or barons, if they had been proper men. Their power was enormous, including that of life and death, as well as of all property rights; but no one could foresee the future growth of the colony, and there appears a certain modesty, not unlike the character of Ogle- thorpe himself, in dubbing the judges of this court of his little town "bailiffs," rather than a more high sounding name, even though no other court ever held greater power.

THOMAS CAUSTON.

Of the two of the first incumbents, Symes and Scott, we have no record then or thereafter of any personal significance. They were probably men of no great mark, character or ambitions-a probability enhanced to certainty by their subse- quent subjugation to a new man. Hodges died shortly after his appointment, and his place was filled, through the nomination of the trustees, by Thomas Causton as second bailiff-rapidly afterward chief bailiff, and therefore chief justice of the colony. This gentleman lacked neither vigor nor ambition; to which positive qualities he added an absence of all scruples that might possibly deter his control, with the sea between him and the governor. One would have supposed his judicial authority, untrammeled by governor or any appellate annoy- ances, large enough for the accomplishment of most selfish designs; but those advantages were also enlarged for Causton by the position of keeper of the public stores, which he also held. For several years the new colony was much dependent upon the charity that established it for the support of her poor, as well as for the supplies for which her prosperous had ready money. Pauperism springs as often from laziness as from misfortune; and it would be a violent presumption to suppose that the main body of Oglethorpe's people were indus-

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Memoirs of Georgia; containing historical accounts of the state's civil, military, industrial and professional interests, and personal sketches of many of its people. Vol. II, Part 35

Author: Publication date: 1859 Publisher: Atlanta, Ga., The Southern historicl association Number of Pages: 1166

Author:
Publication date: 1859
Publisher: Atlanta, Ga., The Southern historicl association
Number of Pages: 1166