USA > Georgia > Meriwether County > Warm Springs > The bench and bar of Georgia during the eighteenth century > Part 4
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4
-
35
1369851
accompanied the Judge from one court to the next; and that the lawyers carried green bags, and were known as the gentlemen of the green bag. The rules promulgated by Judge Osborne in Augusta in 1790 republished in Chatham and in Wilkes, contained another instance of the formality of that time in the proposal to make a distinction between attor- neys and barristers, and the requirement that lawyers should be heard in the "Habit of a Black Robe." This rule pro- vides :
"For the sake of a decent conformity to ancient custom, and of a necessary distinction in the profession, the attor- neys shall be heard in the causes of their clients in the habit of a Black Robe, but this rule shall not apply to those who shall not have provided themselves with such Habits until the second term. A future rule shall provide for the recognizing Barristers and establishing the necessary dis- tinction." Minutes Richmond, S. C. 1790, p. 54 .*
Mr. Dutcher in the history of Augusta, (1890) says that for years after 1799 "the Bar wore black silk robes," and the Chapters by him in that volume contain not only a valuable account of the organization and practice of the courts from 1754 to 1825, but many interesting facts about the lawyers of that day.
The old English custom prevailed of taking fees of "Solic- itors in Chancery," "Proctors," "Attorneys of the Com- mon Pleas," 7 C. R. 29, as part of the costs. The Fee Bill covers many pages, and if "many a mickel makes a muckle," the Eighteenth Century Lawyers were well paid. Indeed, James Jackson had an income at the bar of nearly £3,000. "While Governor of Georgia he told Mr. Spaulding that Mr. Gibbons was the greatest lawyer in Georgia. Being told that his receipts from his profession were 3,000£, said,
*The distinction between Attorneys and Barristers prevailing at the English Bar was not generally observed in America, though there are instances in which it was done in some of the New England States, and as late as 1812 Judge Story, on the circuit in New Hampshire, ordered "that the honorable degree of Sergeant at Law be conferred upon Jeremiah Smith and Jeremiah Mason ; that the degree of Barrister of Law be and is hereby conferred on the following gentlemen who are counsellors of this court, namely, Oliver Peabody
and Daniel Webster, Esquires, in testimony of their learning, integrity and ability," "Great American Lawyers," Vol. 3, p. 25.
36
'My own were about that amount when I unwisely left my profession for politics.'" Charlton's Life of James Jack- son, 107; 2 Miller's Bench and Bar, 102.
This conversation is specially interesting not only be- cause of the record of the generous praise bestowed by Jackson on Gibbons, with whom he had a duel, but it brings into juxtaposition two Georgians whose names were asso- ciated with legal topics of nation-wide interest. On the one side, Jackson, the supporter of State rights and the propo- nent of the Eleventh Amendment; on the other hand, Thomas Gibbons, resisting interference with interstate commerce and attacking the New York Statute which granted Fulton and his assignee, Ogden, a monopoly of the right to use steamboats on the Hudson River. Gibbons was admitted to the Bar in 1786, and, as has been shown by Jackson's conversation with Gov. Spaulding, a great lawyer, and in receipt of 3,000£ from his profession, which, as Chappell says, was a prodigious amount, considering the sparseness of the population and the limited extent of its commerce. Gibbons retired from practice, moved to New Jersey and engaged in steamboat business.
Georgia had passed an Act (Lamar's Digest, 490) grant- ing to Howard for 20 years the monopoly and exclusive right to run steamboats in the waters of the State, as it had previously granted a monopoly to run stages between Augusta and Savannah. (Watkins' Digest, 610.) When Gibbons went to New Jersey and began to operate a steam- boat on the Hudson, with Commodore Vanderbilt as its captain, he found a similar law in New York and was per- petually enjoined by Chancellor Kent at the suit of Ogden. Gibbon's health was not good and apprehending that he might die before the appeal was heard, he made provision in his will that the case should be prosecuted to the end. He employed Daniel Webster as his counsel. Chancellor Kent was reversed, and Chief Justice Marshall's opinion in Gibbons v. Ogden is by many regarded as the most im- portant of all those rendered, holding, as he did, that the
37
New York statute granting a monopoly in navigable rivers was void as an interference with interstate commerce. But it is not generally known that a Georgian made the fight. Chappell's Miscellany, p. 3-12.
At the close of the Revolutionary War, there were barely 15,000 whites in the State. Indeed, the inhabitants were so few that the Constitution of 1777, in providing for the venue of suits, took into consideration the possibility that there might not be men enough in the county to form a jury, in which case the trial was to be in the adjoining county. This sparseness of population is most strikingly shown by the fact that there were only 551 voters in the District and, in the heated election for Congress between Gen. James Jackson and Gen. Anthony Wayne, the total vote was less than 500. But the State was great in potentiality, and be- tween the Declaration of Independence and the ratification of the Constitution, exercised many powers, which now strike us as strange, because we have so long regarded them as National. She levied duties, made paper money legal tender, regulated captures on the high seas, prohibited the importation of slaves and laid a duty on those permitted to come in from other States, tried Admiralty cases, passed a patent law, provided for the naturalization of aliens, made a treaty with South Carolina and many with the Indians. Indeed the fact that Georgia had made treaties with the Indians was used as an argument in the Constitutional Convention of 1787 and referred to as proof of the weak- ness of the Confederation .*
* Watkins' (779) contains Treaties between the State and the Creeks and Chero- kees made at Augusta in 1783 and at Shoulderbone in 1786 and also the Treaty with South Carolina concluded at Beaufort in 1787. As .to this it may be said that the Committee were instructed to insist on a Boundary line "from the mouth of the River Savannah along the north side of it" (283), and the author of the Resolution either quoted it as a phrase then well known, or anticipated the substance of what is now on the Georgia shield-the committee being instructed to "proceed with JUSTICE, MODERATION and CAUTION" (3 Rev. Rec. 284).
Another, and hitherto unknown Chapter in the Diplomatic History of Georgia has recently been found by Edmund C. Burnett, Esq .. who, in an Article in 25th American Historical Review (Oct., 1909, and Jan., 1910), publishes the Documents relating to Bourbon County, showing the appointment of 12 men as Justices of the Peace for the newly established County, embracing a vast extent of land on the Mississippi. Though they were Justices of the Peace, they were given instruc- tions which were most unusual for judicial officers-among other things being authorized to accept and receive from any Spanish officers "full possession in the name and behalf of this State of all such Forts, Towns and Places as may fall within the limits and description of your said county."
38
By Act of February 1, 1788, she granted a patent on a steam engine to Isaac Briggs and William Longstreet, and it was probably with this engine that Longstreet, at Augusta, ran the steamboat he was building, and to which he refers in the letter of September 26, 1790, to Gov. Tel- fair, beginning "Sir: I make no doubt but you have often heard of my steamboat and as often heard it laughed at." Gould's History of River Navigation, 36.
Georgia passed her own copyright law, with the provi- sion, however, that the copyright should be void if the author did not avail himself of it by publishing a certain number of his work.
Like all the other States, she had issued paper money, and in such quantities that it was "not worth a Conti- nental," and at one time it took $14,000 of Georgia money to buy a dollar in gold, and McCall (303) says "the value of paper money was so much reduced that the Governor dealt it out by the quire for a night's lodging of his party; and if the fare was anything extraordinary, the landlord was compensated with two quires, for which the Treas. required a draft made out in due form and signed by the Governor." While most of the salaries were fixed on sterling basis, they were sometimes paid in scrip which could be used in the purchase of confiscated properties sold by the State at pub- lic outcry. Sometimes the debt would be paid by the grant of a particular piece of land. Sometimes in salt, which was so valuable as again to illustrate how the word "Salary" came from the Latin "Sal"-Salt.
Georgia had a tariff law and collected duties on imports, until at the request of the Continental Congress, she waived the right and authorized duties to be imposed and collected by the Continental Congress. She had her own Naturali- zation laws and admitted non-residents to citizenship. But while she admitted them here, she discouraged the attend- ance by her sons on foreign institutions and so passed an act that "If any person under 16 was sent and remained in foreign countries three years for the purpose of receiving
39
education under any foreign power he shall for three years after his return be treated as an alien in so far as to be eligi- ble to hold any office." Watkins, 303.
The State also passed an act of Banishment and Confisca- tion against those who had taken part with the British. This and the other laws above mentioned, and of a kind which now Congress alone can pass, gave rise to litigation before the Georgia Courts of the Eighteenth Century. But the loss of original records and the absence of Reports has left us almost completely in the dark as to the results of the cases brought under these Acts. Indeed the very ex- istence of such laws has been almost completely overlooked, because of the fact that they are to be found only in rare volumes not in the practitioner's library.
Our first Code was not only a wonderful book, but hav- ing been adopted by the Legislature as a statute, it drew a line behind which it was rarely necessary for the Geor- gia lawyer to go. He was, therefore, not required to search these old statutes which are the legal footprints of their day. When he was forced to make an examination as to the state of the law before the adoption of the Code, it was rare indeed that he was called upon to go behind Cobb's Digest, or if so, there was no complete set of the original session laws in existence .*
Clayton's Digest and Lamar's Digest contain an almost complete collection of the laws enacted between 1800 and 1820. Marbury & Crawford's Digest omitted many acts which had been repealed, and Watkins' Digest,-now out of print and very scarce and the most valuable of all of our books for historical purposes, while giving in chronolo-
*In March, 1773, a petition from the inhabitants of Augusta was presented that all the laws the Legislature may think conducive to good Government may be compiled and printed in one Code. 15 C. R. 421. Nathaniel Pendleton, in 1776. was elected Commissioner to codify the laws, but either because he declined to undertake the work or for other reasons, the statutes were not published, and several times the Grand Jury of Richmond County called attention to the serious consequences resulting from the failure to print the laws ;-
"We present as a Grievance that the Justices have not been furnished with such Acts of Assembly as are now in force as well those passed before the Revolution or since, and recommend that a number of copies may be bound to- gether and lodged at the Printing Office 'For Sale' that the citizen may at least by purchase have it in his power to know of the penal laws of this State." Minutes (1783), 96. 46, 134, 202.
40
gical order all known statutes, yet failed to print, except by title, many acts which had been repealed ;- others be- cause they were obsolete, or "repugnant to the form of our Government" (54),-a roundabout way of saying "un- constitutional." Still Watkins' contains the great body of the Colonial and early statute law.
The curious customs of that day which it preserves have now more interest for the reader than the body of useful law which has survived. But we must not forget that it was these early Georgians who were the first law reform- ers and the first to endeavor to get rid of the encumbering technicalities of the English procedure. A number of these early statutes contain provisions permitting the defendant to plead the general issue, thereby getting rid of Replica- tions, Rebutter Sur-rebutter, Rejoinder and Sur-rejoinder, and many of the inconveniences of special pleading. But the great and abiding work of these men was the Judiciary Act of 1799, which is still the framework of our judicial system. They were familiar with the common law methods as administered in the Colony. They had seen the evil results of the radical changes to regulate the courts, made during the Revolution and in the light of their experience with what was too formal and what was too loose they adopted a happy medium-the Judiciary Act of 1799- which, with all of its admirable qualities, is still of force. Let us not forget that for the simplicity of our practice and the advantages of our procedure, we are indebted to the Georgia Bar of the 18th Century.
41
APPENDIX.
The Trustees for Establishing the Colony of Appointmt of the Georgia in America To all to whom these
Town Court of Presents shall Come send Greeting Whereas Savannah our Sovereign Lord George the second by his Letters Patent under the great Seal bearing date the ninth Day of June in the fifth year of his Reign amongst other things Hath of his Grace certain Knowledge & meer Motion Granted Established & Ordained for himself & his Successors that the Corporation of the said Trustees & their Successors should have full Power & Authority to Erect & Constitute Judicatories & Courts of Record or other Courts to be held in the name of his said Majesty his Heirs & suc- cessors for the Hearing & Determining of all manner of Crimes Offences Pleas Processes Plaints Actions Matters Causes & Things whatsoever arising or happening within the Province of Georgia in America or between any Per- sons inhabiting or residing there whether the same be Crim- inal or Civil & whether the said Crimes be Capital or not Capital & whether the said Pleas be Real Personal or Mixt & for awarding or Making out Executions thereupon as in & by the said Letters Patents relation being thereunto had may more fully & at large appear And Whereas sundry Poor People are Imbarked or Imbarking in order to go to & settle in the said Province of Georgia & intend for their security and convenience to build a Town there the same to be called by the Name of Savannah And Whereas it is nec- essary for the punishing Offences & for the determining of Differences or Disputes that may happen to arise or be com- mitted within the said Town or the Precincts therof that there should be a Court of Record Erected & Established for the purposes aforesd. Now Know Ye that we the said Trustees for Establishing the Colony of Georgia in America in pursuance & execution of the Power & Authority to Us in & by the said Letters Patents Granted & that the People of the said Town & the Precincts thereof may have their Laws & Possessions secured to them in Peace & Quietness
42
Have erected & Constituted & by these Presents do Erect & Constitute a Court of Record by the Name & Stile of the Town Court to be holden in the Name of his said Majesty his Heirs & Successors before such Persons as shall from time to time be Commissioned & appointed Bailiffs & Re- corder of the said Town by the Common Council for the time being of Us the said Trustees & We Do hereby give & grant to such Bailiffs & Recorder for the time being ap- pointed in the Manner as aforesaid full Power Jurisdiction & Authority to Inquire by the Oaths of good & lawfull Men of the said Town & of the Precincts thereof & by all other Ways Manners & Means which they shall know of & have in their Power by which the Truth of the Fact may best be made appear of all Treasons Misprisons of Treason Insurrections Rebellions Counterfeitings Clipping Washing Coining & other falsyfyings of the Money of great Britain or of any other Realm or Dominions Whatsoever also of all Murders Felonies Homicides Killings Burglaries Rapes of Women unlawfull Asemblies Conspiracys Confederacys Transgres- sions Trespasses Riots Routs Rescues Escapes Contempts Negligences Concealments Maintenances Oppressions De- ceits & of all other Crimes Offences & Injurys whatsoever & also of the Accessarys thereunto & which at any time after the Date hereof shall by any Person or Persons whatsoever or howsoever by had done perpetrated or Comitted within the s . Town & Precincts thereof & also by whom to whom when how & in what Manner & of all other Articles Facts and Circumstances in whatever Manner soever Touching or con- cerning the said Crimes & Offences them or any of them And also the said Treasons & all other the Crimes & Offences aforesaid to hear & determine according to the Law & Cus- tom of the Realm of England Saving to Us & our Successors all Fines Forfeitures & Amerciaments & all other things to Us on Account thereof belonging And therefore we command that on such Days & in such Place or Places as they the said Bailiffs & Recorder shall for that Purpose from time to time publickly appoint they the said Bailiffs & Recorder shall with
43
their utmost Diligence make inquiry into & of the sd. Crimes & Offences & all & singular the said Crimes & Offences shall hear & determine Therein doing as Justice directs according to the Law and Custom of the Realm of England We also hereby further Command the Constables of the said Town of Savanah for the time being That on such Days & in such Place or Places as shall for that Purpose from time to time be publickly appointed as aforesaid & of which they the sd. Bailiffs & Recorder shall certifie the said Constables they shall cause to come before them the said Bailiffs & Re- corder such & so many good & lawfull men of the said Town & Precincts thereof by whom the truth of the Fact may best be inquired into & made known And we do further give & grant to such Bailiffs & Recorder for the time being of the said Town of Savanah in manner aforesaid from time to time Commissioned & Appointed full Power Jurisdiction & Authority to hold Pleas in all & all Manner of Causes suits & Actions as well Real as Personal & Mixt & of any Debt Account Trespass in Ejectment & other Trespasses Covenants Promises Contracts & Detinues whatsoever within the said Town & the Precincts thereof arising hap- pening or being & between any Persons whatsoever & to proceed in such Pleas suits & Actions by such ways means & process as may with the greatest Safety Dispatch & Justice bring the same to a final Determination & also to hear & determine all such Pleas suits & Actions & Judgment there- upon to give and Execution thereof to make according to the Laws of England And We do hereby further ordain and Direct that all Juries Pannells Inquisitions Attachments Precepts Mandates Warrants Judgments & Process what- soever necessary to be had or done touching or Concern- ing the Pleas suits & Actions aforesaid shall be summoned Done & Executed by the Constables of the said Town & Precincts thereof for the time being And We do hereby fur- ther Ordain & Direct that all Indictments Writs Process Returns & all Proceedings to be had on the said Crimes or Offences or any of them or in or upon any of the said Pleas
44
suits or Actions or any of them & also the Records thereof shall be in the English Tongue & in Words written at length & in plain legible Hand. In Witness whereof the sd. Trus- tees for Establishing the Colony of Georgia in America have to these Presents affixed their Common Seal the sec- ond Day of November in the sixth year of the Reign of Our Sovereign Lord George the second by the Grace of God of Great Britain France & Ireland King Defender of the Faith &c. Annoq Dni 1732. Exd.H.V.
(Board of Trade: Georgia: Vol. 12:fo.14.)
To all to whom these Presents shall come Appointment of Peter Gordon 1st. The Common Council of the Trustees for Establishing the Colony of Georgia in Bayliff W. America sendeth Greeting Whereas sun- Waterland 2d. dry poor Persons are imbarked or im- Bayliff Thos. barking in order to go to & settle in the Causton 3d. Province of Georgia in America and in- Bayliff & Tho . tend for their security & Convenience to Christie Record . build a Town there the same to be called of Savanah & by the Name of Savanah And Whereas Joseph Fitzwater & Samuel Parker Constables & John West & John the said Trustees have by their Deed bearing date the second Day of November 1732 under their Common Seal Erected & Established a Court of Record by the Penrose Tything- Name of the Town Court for hearing & men of the sd. Town. determining all manner of Crimes Of- fences Pleas Processes Plaints Actions Matters Causes and Things Whatsoever arising or happen- ing within the said Town of Savanah and the Precincts thereof as in & by the said Deed relation being there- unto had may fully & more at large appear which said Court is therein & thereby appointed to be Holden in the Name of his Majesty his Heirs & Successors before such Persons as shall from time to time be Commissioned & Appointed Bailiffs & Recorder of the said Town by the Com- mon Council for the time being of the said Trustees Now
45
Know Ye That We the said Common Council in pursuance & Execution of the Power & Authority to us the said Common Council by his said Majesty King George the Second in & by his Letters Patent under the Great Seal bearing Date the ninth Day of June in the fifth Year of his Reign most Grac- iously given Have nominated Constituted & appointed and Do by these presents nominate Constitute & appoint Peter Gordon to be the first Bailiff of the said Town of Savanah and of the Precincts thereof To have & to hold the said Office of first Bailiff together with all Powers Authorities & Jurisdictions thereunto belonging for during & untill such Time only as some other Person by the Common Council for the Time being of the said Trustees in the room & stead of the said Peter Gordon shall be nominated & appointed to the said Office; And we the said Common Council Do hereby further nominate Constitute and appoint William Water- land to be the second Bailiff of the said Town of Savanah & of the Precincts thereof To have & to hold the said Office of second Bailiff together with all Powers authorities and Jurisdictions thereunto belonging for during & untill such time only as some other Person by the Common Council for the time being of the said Trustees in the Room & stead of the said William Waterland shall be nominated & appointed to the said Office And We the said Common Council do hereby further nominate Constitute & appoint Thomas Causton to be third Bailiff of the said Town of Savanah & of the Precincts thereof To have & to hold the said Office of third Bailiff together with all Powers Authorities and Jurisdictions thereunto belonging for during & untill such time only as some other Person by the said Common Coun- cil for the time being of the said Trustees in the room & stead of the said Thomas Causton shall be nominated & appointed to the said Office And We the said Common Council Do hereby further nominate Constitute & appoint Thomas Christie to be Recorder of the said Town of Sa- vanah To have & to hold the said Office of Recorder to- gether with all Powers Authorities & Jurisdictions there-
46
unto belonging for during & untill such time only as some other Person by the said Common Council for the time being of the said Trustees in the room & stead of the said Thomas Christie shall be nominated & appointed to the said Office And We the said Common Council Do hereby enjoyn & require you the said Peter Gordon William Waterland Thomas Causton & Thomas Christie and every of you that in your said Offices you severally & respectively preserve the Peace and Administer Justice without fear favour or af- fection to the Terror of Evil Doors & to the Comfort of those who do well And we the said Common Council Do hereby nominate & appoint Joseph Fitzwalter to be one of the Constables of the said Town of Savanah & of the Pre- cincts thereof To hold perform & Execute the said Office of Constable for during & untill some other Person by the said Common Council for the time being of the said Trustees in the room & stead of the said Joseph Fitzwalter shall be nominated & appointed to the said Office And we the said Common Council Do hereby further nominate & appoint Samuel Parker to be one other of the Constables of of the said Town of Savanah & of the Precincts thereof To hold Perform & Execute the said Office of Constable for during and untill some other Person by the said Common Council for the time being of the said Trustees in in the room & stead of the said Samuel Parker shall be nominated & ap- pointed to the said Office And We the said Common Council Do hereby nominate and appoint John West to be one of the Tything Men of the said Town of Savanah & the Precincts thereof To hold Perform & Execute the said Office of Tyth- ingman for during & untill some other Person by the sd. Common Council for the time being of the sd. Trustees in the room & stead of the said John West shall be nominated & appointed to the said Office And We the said Common Council Do hereby further nominate & appoint John Pen- rose to be one other of the Tythingmen of the said Town of Savanah & the Precincts thereof To hold Perform & Ex- ecute the said Office of Tythingman for during & untill some
47
other Person by the said Common Council for the time being of the said Trustees in the room & stead of the said John Penrose shall be nominated & appointed to the said Office And We the said Common Council Do hereby Com- mand them the said Loseph Fitzwalter Samuel Parker John West & John Penrose That they and Every of them do in all things obey the Warrants Orders and Judgments of the Bailiffs & Recorder for the time being of the said Town Judges of the said Town Court as they ought according to Law for the better preserving of the Peace & Administr- ing of Justice in the said Town & the Precincts thereof In Witness whereof the said Common Council have to these Presents affixed the Common Seal of the Corporation of the said Trustees for Establishing the Colony of Georgia in America the seventh Day of November in the sixth year of the Reign of our Sovereign Lord George the Second by the Grace of God of Great Britain France & Ireland King De- fender of the Faith &C Annoq Dni 1732.
Exd. H. V.
By Order of the said
Common Council
Benja : Martyn Sectary.
எண்
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.