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 37

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 37

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WILLIAM GROVER.

If Jones and Bryan had been left upon the bench without a chief we would not have to record the disgrace of the first chief justice of the colony, Wm. Grover, who was appointed to that office on April 13, 1759. In 1762 he was suspended from office by Gov. Wright, who in a report to the board of trade and planta- tions, Jan. 3, 1763, gave the following reasons for his act:

"I. Although a member of council, Chief Justice Grover, without cause, absented himself from its called meetings, and failed to discharge the duties de- volving upon him as one of that important body.

"II. Although a crown servant and in the receipt of a salary of £500, so far from rendering any assistance in the conduct of public affairs, he constantly mani- fested a disposition to oppose and thwart measures conducive to the general good.

"III. In a manner wholly unjustifiable, he sought to influence the delibera- tions and opinions of the general assembly.

"IV. His judicial powers were improperly exercised to the disturbance of military discipline and subordination.

"V. He was arbitrary and oppressive in the enforcement of the legal process of his court, and careless of the rights of personal liberty.

"VI. In reporting to the governor the judgments and sentences of the court of sessions he was utterly negligent.

"VII. He refused to attend a special court of oyer and terminer ordered for the trial of vagabond Spaniards who had, near Darien, murdered Mckay, his wife and two negroes.

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"VIII. Toward the governor his behavior was uniformly insubordinate and contumacious.

"IX. In the discharge of his official duties he was partial and not above suspicion."

The charges were fully examined and sustained by the board and Grover was removed from his office by the king in March, 1763. Of him, his life and abilities, and the date of his death we know nothing worthy of record. The most con- spicuous facts are that he was chief justice, was removed, and that while he was under suspension published a libel in verse against the governor. The libel was found written on the wall of a building near the state house in Savannah, and ran thus:

"From Britain's gay island where liberty reigns, Where Flora and Ceres enliven the plains, Where George still with wisdom and glory defends

The blessings which nature profusely extends; Whence comes it dear W-that again thou explores From regions to happy American shores? Carolina, her agent, must surely bemoan, And each vot'ry of Hermes re-echo the groan. 1

Thy fortune expiring he no more can raise.

His sons shall no longer thy eloquence praise.

Is it ambition courts thee with soft soothing air,

Or power, or riches, that make thee repair

To climates so sultry?

It is not ambition alone does invite,

But power and riches both equal delight;

For what makes all doctrines most plainly appear,

It cannot be less-than a thousand a year. When lordly I stalk a phantom of state,

Though mean my appearance, my heart is elate.

Plans of castles I dread, make speeches to F --- G ------- Who like-and-are my ready good tools. A council submissive attend on my nod, Or, if fractious they prove, I'll suspend them, by God.

Hoc voleo my motto, sic voleo my rule.

Now damn you, W-11 G-r, who says I'm a fool?"

This nonsense was thought worthy of an address from the general assembly to Gov. Wright and of a formal answer from him.

ANTHONY STOKES.

A second source of annoyance arose during the incumbency of Grover's suc- cessor, Chief Justice Anthony Stokes. This gentleman was an able lawyer and an accomplished man. He came to Savannah from England in 1760, and was made chief justice in 1763. Here at last, and for the first time, Georgia had a man who was both a jurist and honest, upon its bench. For a while no more Causton's, or natural justice, but law firmly and decently administered. But alas! for Savannah and the people and law and decency, the time quickly came when things were bad for the loyal servants of the crown, and mere fitness went for nothing. We will come presently to the administration or non-administration of law during the revolution. Suffice it to say now that Stokes stood by the govern- ment and remained in Savannah during these troubled years, doing what in him lay, until the provisional congress of the colony took charge of its courts in 1775. If any law was administered after that time and until the British went away we know not of it. But it is not difficult to believe that Stokes still did the best that he could while his commission was honored. He was arrested in March, 1776, as an act of reprisal for the imprisonment of some American officers, and

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was released upon parole. The town being in American hands, it may be imagined that the chief justice led no pleasant life until he went away with the other officers of the crown, returning when Savannah again fell into the hands of the British in December, 1778. His only consolation in those dark days must have been in the companionship of the civil officers of the crown, who, with very few excep- tions, remained stanch to their government-not chopping or changing with every wind. His house, library and papers were destroyed by fire from bursting shells in 1779, during the investment of Savannah by the French and Americans. He left for England finally in 1782, and was of that forlorn band of men, women and children who were forced to leave the city just before its surrender to the "patriots" in July, 1782, who encamped in misery and privation of all sorts on the sands of the Tybee, dying three and four a day, and whose wretched remnants were at last taken away and scattered over the world.

STOKES' TREATISE.

But Stokes got to England, and there published a most excellent treatise on the American colonies in 1783, in which you will find no rancorous word against the successful party. He was an acute observer of people and things, and was of moderate passions; took a very human and philosophical view of the American revolution; believed and printed it, that if the upper house of the general assembly had been distinct from the council, and had been appointed for life with hereditary baronetcies, Georgia would have remained loyal; thought the same thing of the other colonies, and as we have seen men and known them, he may have been right. He wrote much more sense than was usually written in those days, and promised us more-an account of what he had seen in the colonies-"if he is not out of pocket by this work;" but no more appearing, it reasonably will be inferred that the worthy chief justice was out of pocket and so remained, to the great loss of ourselves, and the truth of history-or whatever truth there may be in history-now hidden, as to Georgia, under piles of windy oratory and fine patriotic cant called history.

"CRACKER" IMMIGRATION.

While he was chief justice there was a rapid movement of immigration from Virginia and the Carolinas to the middle and western part of Georgia-a tide of colonists not to be desired. Lawless and ungovernable, they oppressed the Indians and were a standing menace to the peace of the colony. For these lawbreakers a bill was brought into the colonial assembly in 1773 to establish circuit courts in west Georgia-west Georgia being then near Macon and bounded by the Ocmulgee river. But events moved too fast, and in the presence of trouble with England it was dropped, and the general court remained at Savannah. Of these settlers Stokes says:

"CRACKER" CONQUEST.

"Georgia is also subjected to another disagreeable circumstance beyond any other of the thirteen states, which is this: The southern colonies are overrun with a swarm of men from the western parts of Virginia and North Carolina, distin- guished by the name of 'crackers.' Many of these people are descended from convicts that were transported from Great Britain to Virginia at different times, and inherit so much profligacy from their ancestors, that they are the most abandoned set of men on earth-few of them having the least sense of religion. When these people are routed in the other provincs they fly to Georgia, where

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the winters are mild, and the man who has a rifle, ammunition and a blanket can subsist in that vagrant way which the Indians pursue; for the quantity of deer, wild turkeys, and other game there, affords subsistence; and the country being mostly covered with woods, they have it always in their power to construct tem- porary huts and procure fuel. The eastern coast of Georgia, in which they plant rice, is at this time thinly settled on account of the emigration of the loyalists, and the greatest proportion of the inhabitants are negro slaves; whereas in the western part the inhabitants are numerous, and daily increase by the accession of the 'crackers' from the other provinces; and it is highly probable that these people will in time overrun the rice part of the country, as the Tartars in Asia have done by the fruitful cultivated provinces in the southern parts of that country. What induces me the rather to think so is, that during the king's government these 'crackers' were very troublesome in the settlements, by driving off gangs of horses and cattle to Virginia, and committing other enormities; they also occasioned frequent disputes with the Indians, whom they robbed and sometimes murdered, the Indians in their turn, according to their custom, murdered the first white man they met, by way of retaliation. To a familiar situation with those 'crackers,' would the disciples of Hume reduce the people of this country, could they succeed in abolishing Christianity, and persuading the world to believe that moral and natural defects are on the same footing. Georgia being bounded by the most northern stream of the river Savannah, it extends greatly in that quarter, forms part of the western boundary of South Carolina, and joins North Carolina. Since the late provisional treaty no other nation but the Indians can contest with them the right to that large and fertile country which lies between Georgia and the river Mississippi. During the civil war the Americans lost much of that apprehension which they formerly entertained for the Indians, for the 'crackers,' who are destitute of every sense of religion, which might withhold them from acts of perfidy and cruelty, have been discovered to outdo the Indians in bearing hunger and fatigue; and as they lead a savage kind of life, they are equally skilled in the arts of bush fighting, and discovering the enemy by their tracks. These men will naturally settle fast in the western parts of North Carolina and Georgia; and as the Indians dwindle away before them they certainly threaten ruin to the civilized parts of the rice colonies, who have not now a common parent to call to their assistance." Terrible consequences these in the mind of the chief justice-the civilized Christian coast harried by the uncivilized heathen "cracker" until Christianity and civilization should be blotted out from Georgia, and the "cracker" and heathendom left supreme. Another precedent doubtless was when Christian Britain was invaded by the heathen Dane, and the praise of Wodin and Thor were sung instead of the psalms of David-"cracker conquest" would be like "Danish conquest," and "cracker anarchy" take the place of any law. But the prophecies of the worthy chief justice have come to naught. No raids and no blood spilled. Instead of the "cracker" heathenizing the coast, Stokes' "cracker" has himself become civilized, and has bent his unruly pagan neck to the yoke of the law; some envious persons say, makes the law of the state. If that be true the "cracker conquest" of Georgia may have been accomplished indeed, but not after the precise manner that the chief justice feared.

Putting aside the vaticinations of the chief justice there is a truth absolutely to be gotten from his statement as to the building up of Georgia, of which too little is known. We know of the settlement of Georgia by Oglethorpe and his English, and of the Salzburgers up the Savannah river, and of the Puritans fron Dorchester, S. C., and of the Highlanders at Darien. But what of that large portion of the state between the eastern counties and the Ocmulgee river before

II-17

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1770? Stokes says, and there is no reason to doubt that Stokes knew of the fact, that in the forty years succeeding Oglethorpe's arrival that portion of the state was being settled, not by the overflow of the colonists from the eastern counties, but by the pressure of hardy colonists stealing down, as it were, from the north behind the colonists of Georgia, and between them and the Indians. Thus it was that even before the revolutionary war the middle of Georgia was settled by men who, so far from having any connection with the regular colonists, were entirely independent of their movements and governments, and to a certain extent hostile. Yet another fact we get from the chief justice, or at least what he considered to be a fact, something stated by him which requires very much more consideration and record. He says in his view, that these western pioneers, called "crackers," were the descendants of convicts. He probably knew some instance to verify his assertion, and of those then in the colony and spoken of by him it may have been largely true. It is not possible that Stokes would have stated it without some very clear knowledge of his own. But what he does not mention is that the convicts whose descendants thus came to Georgia were not the ordinary convicts, so become because of ordinary crime, but political convicts, because of uprising against the crown. In the latter part of the seventeenth century the ordinary convict in England was in most instances punished in England as he had always been. But the man who rose with Monmouth or the Scotch covenanter or the English Jacobite, was punished by transportation to Virginia. We find Jeffries sending off thousands after the Monmouth rebellion. These were the convicts that were sent to Virginia; and if the Georgia "cracker" is able to establish his descent from such a sort, he has no need to blush, for the bravest men and the finest women in England were transported as convicts to the plantations. After the war the name "cracker" was applied to all the small farmers who migrated thither from other states and made the bone and sinew of Georgia.

THIRD PERIOD. GEORGIA DURING THE REVOLUTION, 1777-1789.

REVOLUTIONARY COURT.

While Anthony Stokes was chief justice a dual administration of the law was set up by the Americans. On Dec. I, 1775, the provincial congress of the colony assumed control of the courts, and a committee of fifteen persons was appointed to hold the quarterly sessions in Savannah, as a court of appeals "to hear and determine between the parties and sanction or prohibit processes according to the circumstances of the case." They did not interfere with the existing organization of the courts, but the chief justice was notified to regard the congressional instructions as law.

AUTHORITY CHALLENGED.

The authority of this appellate court was questioned by the royal attorney- general. What else could he do? The colony was still loyal. The provincial congress and its court represented the opinions of only a part of the people- Gov. Wright still present and the royal government still supreme, at least in

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name. But name served little as against resolutions, and the logical attorney- general was thereon ordered to leave.

END OF COLONIAL COURTS.

The machinery so established, it may be presumed, served its purpose after some fashion-purposes more political than judicial, and with many breaks and halts judicial business went lamely on-the provincial congress and council of safety being paramount, and the royal governor having but the name and no actual power; and on April 15, 1876, a temporary constitution for Georgia was adopted and promulgated by the provincial congress, and a copy thereof sent to George Washington. All laws then in force were continued, and it was provided:

CONSTITUTION OF 1776.

"V. That there shall be a chief justice, and two assistant judges, an attorney- general, a provost-marshal, and clerk of the court of sessions, appointed by ballot, to serve during the pleasure of the congress. The court of sessions, or oyer and terminer, shall be opened and held on the second Tuesday in June and December, and the former rules and methods of proceeding, as nearly as may be, shall be observed in regard to summoning of juries and all other cases whatsoever."

"XL. All causes, of what nature soever, shall be tried in the supreme court, except as hereinafter mentioned; which court shall consist of the chief justice, and three or more justices residing in the county; in case of the absence of the chief justice, the senior justice on the bench shall act as chief justice, with the clerk of the county, attorney for the state, sheriff, coroner, constable, and the jurors. And in case of the absence of any of the aforementioned officers, the justices to appoint others in their room pro tempore. (And if any plaintiff or defendant in civil causes shall be dissatisfied with the determination of the jury, then, and in that case, they shall be at liberty within three days to enter an appeal from that verdict, and demand a new trial by a special jury, to be nominated as follows, viz .: Each party, plaintiff and defendant, shall choose six, six more names shall be taken indifferently out of a box provided for that purpose, the whole eighteen to be summoned, and their names to be put together into the box, and the first twelve that are drawn out, being present, shall be the special jury to try the cause, and from which there shall be no appeal.")

"XLIV. Captures, both by sea and land, to be tried in the county where such shall be carried in; a special court to be called by the chief justice, or in his absence, by the then senior justice in the said county, upon application of the captors, or claimants, which cause shall be determined within the space of ten days. The mode of proceeding and appeal shall be the same as in the superior courts; unless after the second trial an appeal is made to the continental congress ; and the distance of time between the first and second trial shall not exceed four- teen days; and all maritime causes to be tried in like manner."

"XLVI. That the courts of conscience (justices' courts-why called courts of conscience no one can tell) be continued as heretofore practiced, and that the jurisdiction thereof be extended to try cases not amounting to more than ten pounds."

"LII. A register of probates shall be appointed by the legislature in every county, for proving wills and granting letters of administration."

"LIII. All civil officers in each county shall be annually elected on the day of the general election; except justices of the peace, and registers of probates, who shall be appointed by the house of assembly."

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Here will be seen only a continuance under the Georgia congress of the royal courts. No court in the colony anywhere except in Savannah. Elsewhere only justices' courts under bailiffs. Provincial congress was poor and paid its chief justice only £100.

JOHN GLEN.

John Glen was elected chief justice in April, 1776, being the first chief justice of republican election and right. Of his antecedents we know 110thing. He had been one of the most active revolutionists, and a member of the council of safety. Evidently an aggressive, commanding man, but what sort of lawyer and judge he was has not come down to us. His judicial duties did not prevent great activity in him in colonial and revolutionary affairs. No records exist of courts held by him as chief justice, nor have we the names of his assistants; but his course, whatever it was, pleased the American party, for on Jan. 10, 1778, after the new constitution of 1777 had been adopted, he was re-elected chief justice, now of the state.

CONSTITUTION OF 1777.

In the constitution adopted Feb. 5, 1777, we find for the first time the basis and lines of our present judicial system-parishes now wiped out and counties made in their places: Chatham, Effingham, Burke, Richmond, Wilkes, Liberty, Glynn and Camden-judicial circuits to be of subsequent creation.

In each county a superior court was established to be held twice a year -- the days of court considered of sufficient importance for a place in the constitution itself.

"All causes of whatever nature shall be tried in the supreme court" must be misprint. There was no supreme court, except as hereafter mentioned; "which court shall consist of a chief justice and three or more of the justices residing in the county."

This constitution does not provide how many assistant justices there shall be in each county. As a matter of fact, however, it was so construed that there was elected-while it was in force-but one chief justice for the state, and two or three assistant justices for each county. When the superior court was held the chief justice of the state presided with the county assistants. The counties being few, and the business light, this was easy to be done. It is not difficult to see that from 1777 to 1783, with the whole of the settled portion of the state in war and disorder-first, patriots occupying territory, having persecuted or killed tories, and then tories occupying the same territory, having persecuted or killed patriots -every part in restless movement, and no woman even feeling safe from week to week, the sitting of courts was a very doubtful if not an impossible matter outside of Savannah. We know not even the names of the assistant judges in that time. It is very dubious if any were appointed, and if appointed their offices must have been absolutely nominal. With the exception of Savannah and such desultory judicial proceedings as Chief Justice Stokes may have laboriously kept on foot, we may understand that there were no courts open in Georgia from 1776 to 1783. There was no law except the law of war as administered in the fiercest spirit of a civil struggle. During that time, therefore, we need look for no names or records except in respect of chief justices.

As we have seen, John Glen, the strong politician, was elected chief justice in 1777. His name frequently appears subsequently in revolutionary transactions, and it is a curious fact, bewildering to one's mind, as to what the real state of the country was; for in August, 1780, after the capture of Savannah by the British, and after the defeat of d'Estaing, and while it may be supposed that the city was

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subjugated by the large British force in possession, Chief Justice Glen appeared in town and defied the authorities. What can be the "truth of history" in view of such a fact? The chief justice of the provincial assembly, whose troops had been defeated and driven back into the swamps of the river and the woods of the middle counties, and into Richmond and Wilkes counties, going in safety into the chief town in the military occupation of the army and there braving the lion with impunity! Savannah may have been under the heel of the enemy, but the heel was very light. When Glen died does not appear, but we find him and Geo. Walton practicing law in Savannah in 1787 before Chief Justice Howley, and Glen judge of the eastern circuit in 1798.

WILLIAM STEVENS.

On Jan. 4, 1780, William Stevens was elected chief justice and John Milledge attorney-general. This William Stevens was attorney-general under his chief, John Glen, in 1776, but beyond that fact he is a name to us and nothing more.

JOHN WERRIAT.

On Aug. 16, 1781, when Dr. Nathan Brownson was elected governor there was some betterment in judicial affairs. John Werriat as elected chief justice and Samuel Stirks attorney-general. That things looked more promising for the revolutionary party is apparent by the increase of the salary of the chief justice to £300. John Werriat had been for years a conspicuous figure in Georgia politics. He, too, was a man of very positive convictions and force of character. He was made president of the provincial congress of Georgia in 1779. After the war in 1788 he became president of the convention, which, at Augusta, ratified the Federal constitution, and died ten years afterward at his home in Bryan county full of years and honors.

AEDANUS BURKE.

In August, 1782, Aedanus Burke was elected chief justice to succeed John Werriat, but it is doubtful if he ever took his seat, or even accepted the office. The subsequent course of his life furnishes strong proof that if he ever thought of presiding, it was only a temporary impulse, and that he did not finally consent to serve. He was an Irishman of decided ability and, like most able Irishmen, of overflowing wit. Born in Galway in 1743, he was educated at St. Omer's in France for the priesthood. What deflected him from that life has not come down to us, but from the West Indies, whither he had wandered, he came to South Caro- lina about 1775. There, or somewhere in his travels, he had become a lawyer, and it is illustrative of his great capacity of some sort that in 1778 we find him on the supreme bench of that state. Like another distinguished Irishman, afterwards chief justice of this state, he probably won his way in South Carolina more by his bonhommie than by profound legal learning, and set the inestimable fashion of good story-telling in a state which has since given us, hand in hand with tra- ditions of fire-eating propensities, some of the best judges and wittiest reconteurs in the world. The outside Philistine who has judged South Carolina from its serious side has been in forlorn ignorance of the generations of mirthful lawyers, whose companionship while living was delightful to each other and to the elect, and whose memories still provoke to laughter. Petigru, McCord and McGrath had their prototype in Burke. Being an Irish-American with a French educa- tion, of course he hated England. That was to be expected. We therefore find

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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 37

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