USA > Georgia > Meriwether County > Warm Springs > The bench and bar of Georgia during the eighteenth century > Part 2
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And as to the second QUAERE, which is, whether the act above mentioned excludes all persons whatsoever. whether inhabitants of Georgia, or not, from trading with the Indians settled within the bounds of the province of Georgia, as described by the Charter, except such as shall take out licenses according to the direction of the said act : that act and the reason of it, extending TO ALL PER-
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against Ryder and must have stampeded the Georgia law- yers, including Murray. At any rate, Mr. Wesley, who was present as a witness in the case, entered it in his journal. "Till twelve o'clock, the Carolina side was heard. Then our counsel (confused enough) was heard for Georgia. . Murray made our defence, but so little to Mr. Oglethorpe's satisfaction that he started up and ran out." Wright's Life of Oglethorpe, 172.
This ought to be some comfort to other lawyers to think that even Murray, the greatest lawyer of his day, could not always please his clients, nor always win his causes, for the judgment was in effect against Georgia. But the case is of three-fold interest-furnishing as it does an instance of a suit by one Colony against another before the Privy Council, where Colonial statutes, approved by the King, were nul- lified, because interfering with Inter-colonial-or what we would call-Interstate Commerce. When we remember that the Indian Trader was the Drummer of that day, the case, on its face and in its results, was almost identical with that in Robbins v. Shelby Co., 120 U. S. 489, where it was held that a license could not be imposed on traveling salesmen doing a purely interstate business.
But we must return to our mutton. For, with all our winnowings and search through the records, we have not
SONS WHATSOEVER, and such taking out of licenses being no more than a proper regulation of the trade within the said province.
July, 28, 1737. D. Ryder ; J. Strange. ( Chalmers' Opinions 591-592. )
Evidently the Trustees of Georgia insisted that this opinion was substan- tially in their favor, and Carolina retorted by passing an Act to indemnify any of her citizens who traded with the Indians in violation of the Georgia Statute. At the same time, Carolina instituted proceedings before the Board of Trade and Plantations for an Order declaring this Georgia Statute to be void.
Thereupon the Trustees of Georgia employed Fernando Paris as Solicitor to file a Cross Petition to have the Carolina Indemnifying Statute declared void. They retained Mr. Solicitor General Ryder (afterwards Attorney General and Chief Justice) ; Mr. Murray (afterwards Lord Mansfield) ; Mr. Charles Clark, of Lincoln's Inn, and Mr. Taylor White, 3 C. R. 168, 190; 5 C. R. 39, 68; 1 C. R. 285, 300, 301, 331. 3 C. R. 384, 393.
The Board of Trade and Plantations evidently considered that the Statutes of both Provinces were void. But, because the boundary of Georgia extended to the head waters of the Savannah, which had not then been located, a sort of com- promise decree was entered directing that until the Provinces settled the line Traders from each might buy and sell in the other. It was further ordered that the Georgia 'Commissioner and all others concerned do forbear as they have hitherto done. as it is alleged, to levy the sum of 5 £ or any part thereof upon any of the Carolina Indian Traders by virtue of an Act passed by you, entitled An Act for maintaining Peace with the Indians.' 5 C. R. 55."
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found the answer to the question as to who was the first lawyer in Georgia. We have learned that the Trustees in their litigation in England had the ablest and most cele- brated lawyers in the world for themselves, but though claiming the right to admit persons to the Bar never author- ized anyone to practice in the courts of Georgia. This con- tinued to be the case during the twenty years for which the charter had been granted. When it expired they made a quit-claim to all the vast territory between the Savannah and Mississippi, "defaced the seal," and Georgia was a Col- ony under the general jurisdiction of the King.
England's experience with granting charters to American Colonies had not been satisfactory, and it had been decided that no others would be issued. When, therefore, the new order was to be established in Georgia the King appointed Reynolds governor and gave him a Commission which in some sense served as a charter, for it imposed on him the duty of calling a Legislative Assembly and conferred upon him authority to constitute courts and define their powers. Stokes' "Constitution of British Colonies in America," 115, 119, 121. The minutes show that on November 8, 1754 (7 C. R. 28), "the Governor read to the council the King's instructions for erecting courts of judicature. But as the board had been informed that William Clifton, Esquire, ap- pointed Attorney General for this Province, was daily ex- pected here, they thought it proper to postpone further con- sideration of so weighty a matter until the arrival of the At- torney General." When he reached Savannah he was asked to prepare a plan for constituting courts. On Dec. 12, 1754 (7 C. R. 33, 38, 43), he presented a report which was adopted and is the very germ of our Judicial system. It provided for the erection of a "General Court with like power and author- ity as is used and exercised by the respective courts of Kings' Bench, Common Pleas and Exchequer in England" and for a separate court of Chancery to be held before the Governor and Council for determining all matters of equity. Instead of a belittling title like that of Bailiff which had handicapped
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the Town Court of Savannah, this Commission went to the other extreme and called them Barons, it being provided that "for any crime (except Treason or Felony) every citizen should have free liberty to petition the Chief Baron, or any one of the Judges of the Common Pleas, for a writ of habeas corpus. And in case the Baron shall refuse to grant the Writ, the said Baron or Judge shall incur the forfeiture of his place." (7 C. R. 29.) All of the unfinished busi- ness in the town court was transferred to this court (13 C. R. 126), which seems to have had no very definite title, for it was referred to as General Court; Court of Oyer and Terminer ; Court of General Sessions; Supreme Court; and Circuit Court. 14 C. R. 528; 15 C. R. 235; 15 C. R. 365. To preserve form and dignity, the Board ordered that "the Rules and Practices of the Courts of Westminister Hall shall be as strictly followed as heretofore as circum- stances will admit." 7 C. R. 53. Stokes' British Constitu- tion in America, 131.
All this was the result of the work of William Clifton, Attorney General of the Province, the first lawyer authorized to practice in Georgia. You may be interested to know some- thing of one whose name stands at the head of our Roll. He was a student of Gray's Inn, and on the list of those admitted to the Society appears this entry :
"February 8, 1721. William Clifton, son of Gervasse Clifton, of Notts, Baronett."
He must have been about 55 years of age when he came to Georgia and was a faithful officer, remaining in the Prov- ince and attending to his duties in person, instead of fol- lowing the then usual course of appointing a deputy and dividing the fees. He had a short leave of absence in 1758, during which time Thomas Burrington, Esquire, acted as Attorney General pro tem. (7 C. R. 826). On returning to Georgia, Clifton resumed his duties, and evidently gave great satisfaction. For when in 1764 he was appointed Chief Justice of Florida, then in control of the British, the Commons House of Assembly of the Province of Georgia
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(14 C. R. 147)-"Resolved, That the thanks of this House be given to the Honorable William Clifton, Esquire, late Attorney General of this Province and now Chief Justice of West Florida, for his upright conduct in his office as well as in all other public employments and that the Speaker do signify the same to him by a letter."
This is a fountain in the desert-the solitary word of praise to be discovered in these dry-as-dust volumes. It multiplies the force of the compliment and makes us feel that we have reason to be proud of the first lawyer on our long and lengthening Court Roll.
For several years after his arrival in Georgia, Attorney General Clifton had refrained from qualifying as a member of the Council, but in 1757 he decided to assume the duties of that office and thereupon (7 C. R. 591, 592) submitted a memorial to the Governor and Council in which he expressed a desire to be admitted to the Board, explaining that "on his arrival in the Province, finding a multiplicity of busi- ness arising from the appointing and establishing courts of judicature, and settling the practice thereof and otherwise (there being at that time but one other of the Profession in the Province), he did therefore decline taking his seat at the Board."
Who that "other of the profession" was we do not know. Nor can we tell whether he had settled in the Province prior to 1754 or came over with Governor Reynolds. At any rate he could not have been admitted to the Bar in Georgia, for it was not until 1754 that the Georgia Courts admitted at- torneys to practice. In that year this power was ex- ercised, as we learn from the fact that in the list of fees payable to the Chief Justice appears this entry: "For ad- mitting every lawyer to practice, 2£,"-the fee bill also fixes the cost payable to Proctors, Solicitors in Chancery, and At- torneys of the Common Pleas. The colony was prosperous, and attorneys were sufficiently numerous in Savannah in 1759 to be referred to as "the Bar."* 8 C. R. 736, 751.
*The names of Thomas Burrington, Charles' Watson, William Handley, William Woodruff, William Ewing, John Lucena, Alexander Wyley, Grey Elliott, James
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We do not know what were the terms of their admission in Georgia, but the English courts were authorized by act of 1729 (2 Geo. II, Chap. 23) to admit attorneys who had read 5 years.
Barristers, however, were called to the Bar by the Inns of Court much as the graduates of the University Law School without examination in court. Three of the four Colonial Governors attended these institutions. William Stephens was a student of the Middle Temple and had occasion to use his legal training when he was made President of the Col- ony and presided in land cases and on appeals from the Town Court of Savannah. Governor Ellis read at Temple Court, and Sir James Wright, a son of the Chief Justice of South Carolina, had also read at one of the Inns of Court. Both, therefore, had a training which was valuable when they sat in the Court of Chancery or presided on appeals from the General Court. Besides these three Governors of Georgia and Clinton, who had read at Gray's Inn, there were also, no doubt, a number of lawyers in the Colony who had been students at these seats of legal learning. William Simpson was a student (1777) at the Middle Temple, and James Robertson, Attorney General under the British in 1778, was a student of the Inner Temple. William Hous- ton, a son of Sir Patrick Houston, of Georgia, was admitted as a student of the Inner Temple just before the Revolu-
Box, appear as attorneys in proceedings before the Governor and Council. The Colonial Records show that money was occasionally paid out by the colony for legal service ; and the names of the colonial attorney generals : Charles Pryce, William Graeme, and James Hume are thus preserved in the Appropriation Bills like flies in amber.
Charles Pryce, Att'y. Gen .- his account (1768) 7:7:6:
To the Estate of William Graeme, late Att'y. Gen. for prosecuting felons, etc., per account to Dec. Ses. 1769, inclusive, as allowed, 4:4:9:
To James Hume. Att'y Gen .. for prosecuting felons, &c., 138€.
William Simpson, C. J .: Charles Pryce, Atty. Gen. ; Anthony Stokes, C. J. ; James Hume, Atty. ; Thomas . Ross, Sol. in Chancery; L. Claiborne, Atty. at Law ; William Graeme, Atty. Gen. Advo. Gen. ; John Houston, Sol. in the Ct. of Chanc. ; James Robertson, Sol. in Chanc. ; Robert Hamilton, Sol. in Chanc. (Augusta) are named in White's Historical Collections, to which can be added as admitted before 1790, William Stephens. James Stuart, John Wereat, Richard Howley, George Walker, John Young Noel, Elihu Lyman. John Tatnal. Abra- ham Jones, Abraham Baldwin. James Jackson. Thomas Gibbons.
The Attorney Generals, were John Milledge, Samuel Stith, George Walton.
To this list of regular attorneys we might add the name of Benjamin Franklin, who during the controversy over the Stamp Act and afterwards, was repeatedly elected by the Commons House of Assembly "to sollicit the affairs of this province in Great Britain." He was paid a salary of £100 and as an expression of the appreciation of his services the State afterwards made him a grant to the land to which he refers in his will.
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tion, as appears from a copy of his admission obtained through the courtesy of the officers of that ancient and honorable Society. It may be here appropriately copied as an example of the formality with which such matters were attended to, and as showing that Americans were reading law in England as late as July, 1776:
"Gulielmus Houston filius Junior Patricium Houston de Provencia Georgia Baronetta defuncti generaliter admissus est in Societatum istius communitatis in consideratione trium librarum sex solidorum & octo denariorum permani- bus solut proma die Juli Anno Domi 1776.º" '
We have thus answered the question as to who was the first lawyer, and furnished a fairly complete list of the Bar from William Clifton in 1754-to the breaking out of the Revolution in 1776. This, however, has put the cart before the horse, and we must now return to say something about the Bench.
On the adoption of Clifton's Report in 1754 Noble Jones and Jonathan Bryan were appointed judges "during pleas- ure." (See Stokes' British Constitution in America (259), where their commission is set out in full.) They were evi- dently expected to hold office until the King named a Chief Justice for the Province.
His salary of 500£ was paid by Parliament, and, accord- ing to the custom of the time, there were also costs and fees which sometimes amounted to as much again. This 1,000£ was, considering the difference in purchasing power, equivalent to at least $10,000 in the present money; and as the custom was to fill the place with an English Barris- ter, the King-Miller (2 Bench & Bar 97), says Gov. Ellis -appointed William Grover, a graduate of Pembroke Col- lege, Oxford, and a Barrister of the Inner Temple, London. Following the example of Campbell in his Lives of the Chief Justices of England, we may begin what little we have to say about the first Chief Justice of Georgia by copying the entry of his admission to the Bar :
1
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"Gillielmus Grover Generosus filius et heres Georgii Grover nuper de Reading in Comitatu Berks Generosi de- functi generaliter admissus est in Societatum istius Comi- tatu in Consideratione trium librarum sex solidorum et octo denariorum premanibus solutorum tricissimo primo die Octobris Anna Domini 1738. Called to the Bar 12 June, 1741." He remained in office until 1762, when charges were made against him because of his arbitrary and partial conduct. The Bar recommended that he should be sus- pended by the Governor and Council until the King's pleas- ure could be known. There was a hearing and an order of suspension. Grover replied in verse-which was voted a scandalous attack on Governor Wright,-and left the colony. 2 Jones' Hist. of Ga., 54.
He was succeeded by William Simpson, appointed Chief Justice December 15, 1766. 9 C. R. 428. But the only other allusion to him is that when his son, William Simpson,_ was admitted a student at Inner Temple (1777) he was referred to as the son of Wm. Simpson, late Chief Justice of Georgia.
And this brings us to the next Chief Justice, who is merely mentioned in the histories as having held the office, but about whom nothing has been written. I doubt if you ever heard his name, which we may give, as he does on the title page of one of his works:
"Anthony Stokes; of the Inner Temple, London; Barris- ter at Law; and His Majesty's Chief Justice, and one of his Council in Georgia."
His character as a judge, his position as an author, and his influence in the early development of our colonial law, justify more than a passing allusion. He was admitted a student of Gray's Inn, Jan. 27, 1758, being described as "Anthony Stokes, of the Parish of St. Andrews, Holborn, Gentleman." He was subsequently transferred to the In- ner Temple, and from his Narrative we learn that "he was called to the Bar on May 9, 1760, and for some time went the Oxford Circuit, and afterwards attended the
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Welsh Sessions. He subsequently practiced in West Indies. On March 23rd, 1769, his Majesty was graciously pleased to appoint Mr. Stokes Chief Justice of Georgia, but as it was some time before the sign manual reached him he did not leave St. Christopher's until the 28th day of July, 1769, and on the 26th of August following he arrived at Sun- bury, a southern port in Georgia, some distance from the Metropolis. He therefore did not reach Savannah until some days after his arrival and was not sworn into office until the first of September, 1769."
As you will see, he was a barrister, a practicing lawyer and, the records show, a man of integrity, courage and ability. He was our first legal author and published a pamphlet :--
"Directions for the officers of His Majesty's General Court and session of Oyer and Terminer and general Gaol Delivery of the Province of Georgia. Compiled by the Chief Justice, Savannah, 1771, 4 to 24 p." It was formerly included in one of our law catalogues, but has been lost. Stokes also published (1792) a book on "The Government of Other Countries Compared to that of Great Britain."
After his return to England he wrote
A. NARRATIVE of the OFFICIAL CONDUCT. of
ANTHONY STOKES of the Inner Temple, LONDON BARRISTER at LAW ; His Majesty's CHIEF JUSTICE, and one of his COUNCIL OF GEORGIA ; and of the DANGERS and DISTRESSES He underwent in the Cause of Government Some Copies of which are printed for the Information of his Friends. London, 1784.
It is a very rare book, only two copies being in this country, one in Mr. DeRenne's wonderful library at Wormsloe, and one in the Congressional Library at Wash- ington. It gives the British view of the situation in Geor- gia, and also many side lights on legal affairs during the exciting years between the Stamp Act and the Revolution.
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While he was presiding at Savannah, the Georgia Pro- vincial Congress prohibited attorneys from proceeding in any civil action and Stokes announced that "if any lawyer should delay his client's cause under pretense of the said Resolution the Court would strike such attorney off the roll." This brought on a conflict of authority, in which the Congress threatened to take action against Stokes if he enforced the rule, to which, however, he adhered and ordered his decision to be published in the paper. (But see -(79).
The Narrative contains copies of several of Stoke's charges to the Grand Jury. One of them defining Treason, under the Statute of 25 Edw. III, Chap. II, reads like a page from Howell's State Trials. But we go from the great to the small, and alongside of the subject of Treason is an account of a controversy with the Bar over a Rule that "if an Attorney be absent when his case was called, he should not be reddy until he paid 20s. to the use of the poor of the Parish, and as some of the gentlemen of the Bar doubted the Court's authority to make such a rule, he pro- duced a similar Rule of the King's Bench in England, whereupon the Counsel were of the opinion that the pre- cedent produced justified the rule." 12 C. R. 331, 345.
Just before the Revolutionary War, the Attorney Gen- eral of the Province applied for Writs of Assistants. Stokes was in favor of granting the writ but was over- ruled by the Assistant Justices, and as the decisions in that matter are the only judicial records of that period extant they are set out at length .*
* GEORGIA.
In the GENERAL COURT.
January, Friday 17th, 1772.
Mr. Attorney General, on the behalf of the Commissioners of the Customs in the British Colonies in America, applied to the Court for writs of Assistants ; and on reading the acts of Parliament on the 12th and 14th of Charles the Second, and also the statute of 7th George III, respecting such writs of Assistants; their honors the three Assistant Judges were of opinion, that notwithstanding they would at times give their utmost assistance in discouraging frands in his Majesty's Customs, yet apprehending there was not an immediate occasion for such writs; which when there was, they would be ready to grant them : and his honor the Chief Justice was of opinion, that as such writs were usually granted by the Court of Exchequer in England without affidavit being first made, and as the act of the 7th of George
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Stokes was several times arrested by the Americans and at last obtained permission to leave the State with his family, bearing with him a letter signed by Wereat, who himself subsequently held the office of Chief Justice of the State .* It was indorsed by Gov. Bulloch and acted as a "safe conduct."
Upon the recapture of Savannah by the British, Stokes returned with Governor Wright and again opened court and there are numerous entries in the Narrative relating to legal matters during that period. In the siege of Sa- vannah, in 1779, by the French under Count D'Estaigne a shell destroyed Stokes' house, killed three and seriously wounded three other of his slaves. When the city was captured he escaped and returned to England (see letter to him from Joseph Clay, 8 Ga. Hist. Soc. 254), where his salary of 500£ was paid for a year or two and then he wrote his most celebrated book, "Constitution of the British Colonies in America." The work has been cited in New Jersey v. Merchants' Bank, 6 How. 405; Warring v. Clarke,
III, directs the Supreme Courts in America to grant such writs on application to them for that purpose; he therefore apprehended that the Court had no dis- cretionary power to refuse. 10 C. R. 946; 11 C. R. 31, 147.
GEORGIA, ff.
In the GENERAL COURT.
At an adjournment day of April Court, holden at Savannah in the said Province, on Monday the 3d day of May, in the year of our Lord one thousand seven hun- dred and seventy three, in the thirteenth year of his Majesty's reign.
PRESENT,
The Chief Justice, Mr. Justice Jones, and Mr. Justice Butler.
Mr. Attorney General on behalf of the Commissioners of the Customs in the British Colonies in America, applied to the Court for writs of Assistants to be granted to the Officers of the Customs for the ports of Savannah and Sunburry : there honors the Judges were of opinion as follows ; viz. his honor Mr. Justice Butler, that as he apprehended there was not an occasion for them at present, he was of opinion that the same should not be granted, nor until there was a neces- sity for them; Mr. Justice Jones alleged, that as he had not come prepared in the matter, not being apprized of such intended application, could not give any opinion thereupon ; and his honor the Chief Justice was of opinion, that the said writs of Assistants should be granted.
*I am sorry that this Province is deprived of so upright a magistrate as our late Chief Justice and sincerely wish you health, peace and freedom; for the last of which America is contending and will contend at every hazard. I am, sir, your most Humble servant,
JOHN WEREAT.
To the Honorable Anthony Stokes, Esquire, on board the ship Unity at Cockspur : Permit this packet to pass.
ARCHIBALD BULLOCH.
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5 How. 454, and by books dealing with the organization and jurisdiction of Admirality Courts in America. See Carson's History of Supreme Court of the United States, 31.
Stokes's Work contains a valuable Chapter on the organ- ization and practice of the courts of Georgia both before and after the Revolution, and with that curious mixture of the unimportant with the important he gives (p. 190) the "Rules of Precedency for the settlement of the precedency of men and women in America." And strange as it may now appear, a branch of that subject found its way into the first Constitution of Georgia, which provided that the Governor should be "stiled Honorable" and when a Com- mittee from the Council carried to the House an Amend- ment proposed to any Bill they should submit it "sitting and covered, the whole House at the time, except the Speaker, uncovered." (Const. of 1777, §§ 2 and 28; Wat- kins' Digest, 8, 12.)
When Stokes left Georgia, John Glen was elected first Chief Justice of the State, with a salary of 300£. But as all of the Court records have been lost there is nothing in Georgia relating to his administration of the office. I have secured, however, a copy of the record in John White vs. Peter Knight, tried by "The Honorable John Glen, Esquire, Judge of the Court of Admiralty of the State of Georgia," which is probably the oldest complete record of a judicial proceeding in the State. The case grew out of the capture and seizure of the sloop Polly, and involved the title to the boat and cargo. The finding was in favor of the libellant. The case was appealed to the Continental Congress and was referred to a Committee consisting of James Wilson, John Adams, Thomas Burke. They affirmed the judgment. Few of us realize that at one time the Superior Court of this State exercised Admiralty jurisdiction and that appeals were allowed to the Continental Congress. But that case is mentioned in books discussing the facts leading up to the organization of the Supreme Court of the United States.
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