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 36

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 36

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trious. Dependent, therefore, as they were-through indolence or bad luck- upon the public stores for charity or for purchases, and passing through the unavoidable mishaps of a new enterprise, it was Bailiff Causton's good fortune in the active pursuit of his prosperity that he governed the colony not only by adjudicating their lives and property, but by cutting off the rations of his enemies, if they showed too stout a resistance-a lethal weapon which no other chief officer of the state, good or bad, has ever since been able to call to his assistance. It is small wonder that under these terrors, all other officials and most of the people yielded; so that in a very short time the chief bailiff was quite the dictator of the colony, and indulged his fancy for arbitrary proceedings and judicial splendor to his heart's content-certainly to the utmost of the poor resources of the colony.

CAUSTON TRIUMPHANT.

This was not gained without opposition. There are always people who believe that the right will win, and because it is the right. Sanguine persons of the colony of this sort there were, who had not the fear of the court or bodily hunger before their eyes, and they attempted a tilt with Causton. They petitioned the trustees at length, setting forth the iniquities of the chief bailiff, and asked that he should be deposed. Probably the trustees had also received private information from some personal friend of a trustee; or perhaps from their secretary in Georgia, Col. Stephens-afterward president of the colony-for they believed the com- plaint, removed Causton, and sent out Mr. Gordon as chief bailiff. But the astute Causton was a man of far too much resource for the trustees, in one encounter, with so many miles of water between him and them. He had not been removed as keeper of the public stores; and in that capacity he refused to sell to his successor, Gordon, and starved him out. Gordon's stomach seems to have checked his ambition, for in six weeks he left for England; whereon Causton-we may sup- pose with a sardonic smile-re-took his seat upon the bench, and commenced administering strict justice, with an eye especially turned toward the sins of the late petitioners against him. Among the latter was one Capt. Joseph Watson of the Georgia militia, against whom Causton procured an indictment for pervert- ing the minds of the Indians against the colony. On this trial the judge added to his judicial duties by acting as witness and prosecuting official; but was sur- prised to find his carefully selected jury inclined to defeat his view of justice by returning a verdict substantially of "not guilty." The chief bailiff ordered them back to find a different verdict. They filed in again without change of mind; again he sent them out with a menacing charge requiring them to find Watson "guilty and a lunatic," and to "recommend him to the mercy of the court." The jury found him "guilty of lunacy," in which verdict, considering the previous petition against Causton and the helplessness of the colonists, there may have been some logic. Causton's justice asserted itself by three years' confinement of Watson in jail, without formal sentence.

JOHN WESLEY'S LOVE AFFAIR.

The most notorious work of Causton's judicial life was his persecution of John Wesley. The latter arrived in Georgia full of missionary purposes in 1736, and while there lost his heart to a young lady named Sophia Hopkins, a niece of Causton's. Of this young lady we have varying accounts. Bishop Stevens, desirous of the exoneration of his clerical brother, says that Wesley had "allowed his affections to become ensnared by the artifices of a lady who possessed many attractions of mind and body, but whose moral character seemed to lack that

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modesty and integrity, the absence of which makes even beauty deceitful and favor vain," and describes her as having "studied graces and apparent piety." On the other hand, Jones speaks in glowing phrases-drawn from what source of information or inspiration not appearing-of the "charming and coquettish young lady," with none of the defects of character so plainly spoken by the other writers.

WESLEY IN FLIGHT.

But whether she was frivolous or only coquettish, the devout Wesley was hopelessly in love, and remained so until warned by other spiritual guides of the danger to his soul. Upon the appearance of his trouble of mind the young lady broke off her engagement, and eight days afterward consoled herself and punished her victim by marrying a gentleman of Savannah. Whatever was Wesley's share in the affair, it aroused Causton's ire, and thereupon followed "trumped-up" procecd- ings against the apostle, to which was bent all the energy of the bench; and the civil power so far prevailed against the spiritual that Wesley, wearied and wholly unable to obtain a trial, left for Charleston by boat, "upon the serving of the tide" with the intent to avoid the giving of bail, and, for all future time, the well-known justice of Causton. About five niiles from Savannah the waters find a small outlet to sea by a sinuous channel, which winds its way southwardly through marshes and by high bluffs until it becomes the splendid river of Wassaw. Upon one of those bluffs Causton had built himself a fine mansion, embowered in cedars and noble live oaks, whose long branches and mosses still sweep down to the ground. Riding or driving home from the business of the day, the chief bailiff would seat himself on his cool verandah, and surrounded by his happy family, and looking over the prospect of green marsh and shining river toward the shores of Wil- mington and White Marsh islands, his heart would expand with joy as he thought of the way in which he had fortified his position, and of the enemies whom he had punished. He had almost reached the summit of his hopes, and doubtless looked forward to a peaceful and wealthy old age-possibly as the absolute master of an independent province.

CAUSTON'S FALL.

But while he could fairly count upon the indolence of trustees in regard to the mental distress of his fellowmen, he had failed to take into consideration the effect upon them of the financial side of his business. While thus triumphant and prosperous, in all the peace of a good man, the vouchers and accounts forwarded to England by him, as keeper of the stores, alarmed the trustees much more than his judicial methods, and they again sent orders for his removal and the appoint- ment of Mr. Henry Parker in his place. Fortunately for them, in this their second essay of strength with the resourceful chief bailiff, Oglethorpe was then in Amer- ica, and in Frederica, observing the Spaniards. He received his orders before his return to Savannah-Causton not to be sent to England, but to be held in custody or under bond. Upon Oglethorpe's arrival at Savannah he was met in state by the magistrates-Causton at the head-with duc welcome. The latter was soon informed by Oglethorpe of the charges against him, which he resented with vigor, but on Oct. 8, 1738, was removed from office, held under his own bond, with property security, and notified to account. Failing to do this in any proper manner, he was ordered to London, where he went before the common council of the trustees. This proceeding producing no satisfactory results, he was per- mitted to embark for Georgia, where he promised to produce the vouchers needed

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to balance his accounts, but died at sea, doubtless to the great relief of the Savannah colonists, who had good reason to fear the final outcome of a struggle between his astuteness and the distant trustees.

HENRY PARKER.

When the trustees sent out orders for the removal of Causton we saw them appointing Mr. Henry Parker in his place-an appointment not carried then into effect. No reason appears for his failure to take his seat, which was instead filled by Col. William Stephens. Most likely Oglethorpe did it out of his own wise judgment. But as to the man Parker, what was the truth? We have his charac- ter sketched by Tyerman, the biographer and devoted admirer of John Wesley. Parker was so unlucky as to have been of the court before which Wesley had been summoned after his love worries. Enough and more than enough for Tyerman. Parker, says he, was a carpenter, and could not read or write. Parker was a drunken rascal, "an absolute slave to liquor." But bad for Tyerman, the biog- rapher, that self same Parker, in a colony wherein were Noble Jones and James Habersham and Jonathan Bryan, was shortly afterward made vice-president of the colony under the aristocrat, Stephens, and president at his death. As we have said, Causton's vacant seat was filled by Col. William Stephens, of memory as happy as Causton's is bad.

BAILIFFS QUARRELSOME.

He had been the secretary of the trustees in Georgia, and of him all good things can be said. His associates must have troubled him greatly, in the language of our writer,, for they were "inefficient, quarrelsome and disposed to make the interests of the public subserve their private aims." The inefficiency of the Savannah bench seems to have impressed the trustees, for, with a desire to procure for them a respect, which neither their conduct nor ability had inspired, the trustees sent them over splendid judicial robes; those of the bailiffs being purple, edged with fur, and the recorder's being black, tufted. The bailiffs, however, had become so much at variance with each other that even in such a simple matter as gowns they could not agree; and it was three months before they could so far settle between themselves their contentions over their robes as to wear them on the bench. But when they finally composed their difficulties on that subject, and sat in their gowns, the genius of this stroke of the trustees became manifest in the order and decorum of the court, "such as had not been seen in a great while." Whether this pleasant effect was produced upon the members of the bench or the people, the chroniclers do not state.

FREDERICA'S COURT.

But fortunately the town court of the three bailiffs, with its inefficiency and malpractice, was destined to be of but short life. In February, 1736, Frederica had been settled by Oglethorpe and established with municipal and judicial service, precisely as had been Savannah. The life of its court was so short and its course so bad that labor upon its history is worth nothing to anyone. Enough to say that they quarreled and mis-governed with all their vigor for five years. Some bailiffs could not even write. That might have been borne with comfort if they had understood what justice meant. So they went on their way of brief authority, misusing all things under them and abusing all people around them until the whole system of town courts in both jurisdictions, filled by such appoint-

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ments as has been named under it, wearied the trustees and brought them to break it up. To us it seems that the system was not so wrong as were the persons appointed under it. Practically there was no great difference in the new plan adopted for both jurisdictions in 1741. Instead of town courts and a present governor the trustees on April 15 divided the whole colony into two counties, one to be Savannah, including all the country north of Darien, and the other Frederica. Over each there was to be a president and four assistants, who managed the civil and judicial jurisdiction of the two counties. William Stephens was made president of the county of Savannah, with Henry Parker, Thomas Jones, John Fallowfield and Samuel Mercer (or Marcer), assistants. No appointments were made for Frederica at this time, the council waiting for Oglethorpe and his information.

NEW COURTS.

As to the new judicature it will be noticed that the chief change was made by putting the civil power into judicial hands, rather than reserving that to a civil person or body. (Happy and richer, indeed, would Causton have been if this good fortune had happened to him.) The increase of two judges, called assistants, made no difference in principle. After all, if better things came from the new order-and much better things did come-they came partly from the weight of the trustees' hands, felt from across the ocean, in wiping out the old jurisdictions, and making new; a result easily seen by the colonists, and very instructive of the measure of power that did somewhere exist, if slow to act; and partly from the increased authority given to the upright Stephens, who from chief bailiff of a court, thus became president of the whole colony of Savannah, with power of vice-governor, Oglethorpe retaining civil and military control as of old.

WILLIAM STEPHENS.

It is pleasant to report that Col. Stephens was entitled to and received the respect and obedience of all persons, to which he was entitled by rank, birth and character. He was the son of Sir Wm. Stephens, lieutenant-governor of the Isle of Wight, and was for twenty-six years an honored member of parliament; and in 1743, when the two counties of Savannah and Frederica became united, he became president of the whole colony. He was then seventy years of age. Notwithstanding the drawback of age, however, he continued to administer the duties of his office until 1751, when, being made aware by his reluctant assistants of their embarrassments growing out of his age and infirmities, he resigned and was succeeded by Henry Parker, the vice-president, and died at Bewby, near Savannah. Of the other assistants appointed at the same time with Stephens, it is noticeable-as is also true of Stephens-that Parker and Mercer are the only persons who came over first with Oglethorpe. The others seem to have been more recent arrivals, or were selected and sent over from England with a special eye to their fitness.

CONSOLIDATION OF COURTS.

The information received by the trustees, upon Oglethorpe's return to Europe, as to the rivalries and jealousies between the two governments and judicatories of Savannah and Frederica, and the difficulties to be expected out of two inde- pendent boards, determined the trustees to unite them under one central author- ity; and in May, 1743, they revoked their former orders, and consolidated the two

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counties under the jurisdiction of the president and assistants of Savannah, as such of the whole colony, the bailiffs of Frederica remaining a local and sub- ordinate court.

JUDICIAL ARRANGEMENTS.

Fixed terms of court four times a year were to be held by the general court at Savannah. Besides the local court at Frederica, bailiffs were created at various remote points, with power to try what was termed "petit causes," and to commit offenders to await trial by the general court at Savannah in such cases as exceeded the very limited jurisdiction of the local bailiffs. We thus find affairs differing very slightly from what they were during the time of the bailiffs. Savannah, the chief point and place for holding the general court and president and assistants, instead of bailiffs-but bailiffs exercising the real functions of bailiffs, properly so called, at any place or point where a justice of the peace might be needed. No writs of error or appeal, and no higher appellate court, the president of the court also vice-governor of the colony.

NO LAWYERS ALLOWED.

As yet we have no bar, attorneys specially warned off, and not allowed to practice or plead before the general court, or any other court in the colony. Why they were excluded it is difficult to say. Not by the act of the colonists, from whom objections to attorneys might naturally be expected, as many of them had sad recollections of that sort; but the exclusion came from the trustees. To have originated with them out of sympathy with the unfortunate debtors would have indicated a degree of delicacy hardly to be expected from those times. But excluded lawyers were, and not permitted at all until the new juris- dictions were established by the crown, after the surrender of the charter.

SUNDRY CHANGES.

Under these provisions the colony lived prosperously enough, so far as the administration of justice was concerned, and without event worthy of record here, until the surrender of its charter. In the meantime, we note several changes in the bench, besides the accession of Stephens as president. Parker died a year after his appointment and was succeeded as president by Patrick Graham, of whom there is nothing notable, except that he was not only of sufficient import- ance then to be president, but afterward a member of the colonial council, until he disappears out of colonial records. Samuel Mercer (or Marcer) misbehaved in some way-facts not stated, except that "he had proved faithless to his trust."

JAMES HABERSHAM.

His place was taken by James Habersham, the merchant-partner in the house of Harris & Habersham, the oldest firm in Georgia, and he himself the ancestor of a line of gentlemen, easily among the best, if not the best, in the history of the colony and state. Of him as assistant justice of the colony there is little to be noted. His fine qualities do not appear in records or in books until after the new government was in, and the troubled time of Gov. Wright had come upon the colony. Then he shows himself a man of note-full of strength, firmness and dignity. Not carried away from his post of duty as vice-governor by affiliations of friendship or blood, but loyal to the crown, and stanch to his position until he

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died. But we are now thinking of him as a member of the general court, in which respect there is nothing to be said.

MORE CHANGES.

Col. Noble Jones, an intimate friend of Oglethorpe's, and the holder of various offices of trust in the colony, was made assistant justice in the place of Parker, promoted, and Pickering Robinson and Francis Harris in the place of Thomas Jones and John Fallowfield. Of these men but one name need be remembered, and that name affords a curious illustration of the very doubtful nature of the colonists' resistance to royal authority .. The two members of the bench whose names have come down to us without loss of character to the present time are Jones and Habersham. Both men of the highest character-honorable, patriotic, thoughtful and considerate-yet when the war comes on we find them and their sons on different sides; the fathers standing by the crown with tenacious loyalty -the sons as vigorous in aggression against it. Such things we may notice hastily as we record the bench of the trustees, but of things judicial there is nothing to be remembered. The most and best that can be said is that from the time that Stephens became president until the surrender of the charter justice was so efficiently and quietly administered that it made no noise, and we have no echoes.

SECOND PERIOD. GEORGIA UNDER THE CROWN, 1752-1777.

THE CROWN JUDICIARY.

We now come to the surrender of the charter by the trustees, which occurred June 23, 1752, a few days prior to its legal expiration. From that time, until the arrival in Georgia of Gov. Reynolds to put into effect the formal establishment of the new courts by the privy council, the judges then holding office were by proclamation retained, and continued to discharge their judicial duties even after Gov. Reynolds arrived, and until the attorney-general came over and set judicial matters in order. In the summer of 1754 the crown granted the order of the lords commissioners of trades and plantations creating a permanent plan of gov- ernment for the province. By this plan it was provided that there should be a court of record, to be known as the general court, to be held four times a year on the second Tuesday in June, April, July and October, and to have the same jurisdiction in the province that the courts of the king's bench common, pleas, and exchequer exercised in England. This court was to transact civil business only, all criminal business being tried by a court of session of oyer and terminer and general gaol delivery, to be held twice a year by the same judges who presided in the general court. Two grand juries were provided, but this was found insufficient, considering the heat of the country, and the misery of jail confinement; and afterward there were four. The general court was located at Savannah, the presiding judge was to be called the "chief justice of Georgia," and to be appointed by the crown; and had this advantage over the ancient bailiff, that he must be a barrister-at-law, who had attended at Westminster. To him was appointed a salary of five hundred pounds sterling, comparatively a very much larger salary than that now enjoyed by his present successors in the granite capitol building. With him were three assistant justices, who were

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appointed by the governor, and had only honor for their reward, getting no pay except on the death or absence of the chief justice.

It will be seen, however, that the salary of the chief justice was considerably more than five hundred pounds, as he also received perquisites and fees. Gov. Wright estimated the entire income of the chief justice in 1773 at £1,020-com- paratively more than is now paid the whole bench of the Georgia supreme court. The powers of a chancellor were vested in the governor, to whom also was committed the jurisdiction of the ordinary in the probate of wills and in the administration of estates. A court of errors, consisting of the governor and colonial council, heard all appeals from the lower courts. No appeal lay unless the judgment exceeded £300; but if it was more than £500, a further appeal could be prosecuted to his Britannic majesty in council. A court of vice-admiralty, with a justice appointed by the crown, had jurisdiction of maritime causes.

COURT OF VICE-ADMIRALTY.

This court was of much greater importance in those days than in more modern times even, as wars with France and acts of piracy were constantly on hand and furnished material for its work. An appeal lay to the high court of admiralty in England. Gov. Reynolds presided temporarily as vice-admiral and judge of the admiralty court. Jas. Edw. Powell was its judge advocate; Wm. Clifton, advocate general; Alexander Kellet, marshal, and Wm. Spencer, register. Justices' courts were provided for minor causes, appeals being permitted where the debt or dam- age claimed was forty shilling sterling.

ROYAL JUDGES.

No appointment of chief justice was immediately made, but commissions were issued on Dec. 12, 1754 to Noble Jones and Jonathan Bryan as justices of the general court, which held its first term on the first Tuesday of January, 1755.

NOBLE JONES.

We have already referred to Col. Noble Jones, the first acting chief justice of Georgia, and of him it remains only to be said that he retained his seat upon the bench in that capacity, and afterward as assistant until his death, which occurred in October, 1775, a faithful and upright judge, loyal to justice, to his manhood and to the crown. At the time of his death, Gov. Wright was a prisoner in the hands of the revolutionists.

JONATHAN BRYAN.

Jonathan Bryan shared at an early date the animosity of the Georgia whigs against England. At a public meeting of citizens in the autumn of 1769, when resolutions of non-importation of English goods were adopted, we find him presid- ing. This course so incensed the crown that, in December, he was removed from his seat in the council. Whether he had previously resigned his seat on the bench the records do not disclose. He afterward threw himself zealously into the revolutionary struggle, and upon the capture of Savannah by the British on Dec. 29, 1779, he was, notwithstanding his years, confined in one of the British

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prison ships, there to suffer the privations and misery considered in those days the proper and natural treatment of defeated rebels.

LAWYERS ALLOWED.

With the establishment of this general court we note the first appearance of lawyers before the colonial courts-probably a necessary corrollary to the ad- mitted necessity that a lawyer should preside. The chief justice, a man of West- minster, no longer content to rely upon his own views of natural justice, but desirous of hearing both sides through accustomed agencies and upon decided precedents. Who the lawyers were and how they lived and what profit they made, we know not. If we consider their fees and the value of official places, no fortunes were piled up by them:

"A retaining fee in any cause, 7s. and Id.

"Every attendance necessary in the courts, Is. and 5d.

"Drawing a declaration, plea, replication, rejoinder, demurrer, joinder in de- murrer, or other pleadings, 2s. and Iod.

"A brief in every cause, 3s. and 7d."

We have here some of the charges laid down by statute in 1773:

Pryce, the attorney-general in 1773, found his fees produced him £215. Powell, the judge of the admiralty, got out of his fees only fio per annum. The two clerks of the crown and courts got from both offices, £613. Altogether we can fairly say that the bar may have got along respectably, but that wealth did not lie in their way. The new order of judicial things under Govs. Reynolds, Ellis, and Wright worked smoothly enough, and between the years 1754 and 1775 but three matters of any importance impeded the regular course of justice and are to be noted as disturbing elements.

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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 36

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