USA > Georgia > The history of Georgia, Volume II > Part 27
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The executive council was required to meet the day after elec- tion and to select a president out of and from its own member- ship. It was vested with power to appoint its own officers and to frame rules for its procedure. In all deliberations of council the vote was to be taken by counties, and not individually. It was the privilege of each member of council, within three days after a measure was discussed and determined upon, to have his protest formally entered.
During sessions of the assembly it was made the duty of all the members of council to be present that they might examine the laws and ordinances submitted by the House of Assembly. Laws and ordinances so referred were to be returned within five days with any remarks the council deemed it proper to make in reference to them. Committees from council, sent to the House with proposed amendments to any law or ordinance, were re- quired to deliver their reasons for such amendments, "sitting and covered," the House at the time, with the exception of the speaker, being uncovered.
In the absence or during the illness of the governor, the exer- cise of his powers devolved upon the president of the executive council. Communications from the House to the governor or to the executive council were to be delivered through the medium of a committee. Messages from the governor to the House were to bo borne by the secretary of council, and those from the ex- ecutive council by a committee of that body.
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The governor for the time being was to be the captain-general and commander-in-chief of the militia, and of the military and naval forces of the State.
All commissions granted to militia officers were to remain valid only during the good behavior of the parties commissioned.
The militia, in counties possessing a population of two hun- dred and fifty men and upwards capable of bearing arms, was to be organized into one or more battalions. Where the number of inhabitants liable to do military duty, within the limits of a county, was less than two hundred and fifty, independent com- panies were to be formed.
A superior court of general jurisdiction was to be established in each county, with two sessions in each year.
All causes arising between parties residing in the same county were to be tried within that county.
Matters in dispute between contending parties, resident in different counties, were to be tried in the county in which the defendant resided ; save that in cases involving the title to real estate adjudication was to be sought in the county in which the land was situated. Breaches of the peace, felonies, and treason were to be tried in the county where the crime was committed. Where the population of a county was insufficient to form a court for the trial of causes both civil and criminal originating within its limits, those causes were triable in the county next adjacent in which a competent court could be found. The bench of the superior court was composed of a chief justice and of any three or more justices residing in the county. In the absence of the chief justice the senior local justice on the bench acted in his place.
Provision was made for trial, on appeal, by a special jury. The jury was to judge of the law as well as of the facts.
Captures by sea and land and maritime causes were to be tried by a special court, to be convened by the chief justice in the county where the same were made or arose. Quick deter- mination was to be had, and the mode of procedure was to con- form to that established for the guidance of the superior court.
No grand jury should consist of less than eighteen members, any twelve of whom could find a bill.
Courts of conscience as previously established in the province were to be continued with a jurisdiction of ten pounds.
Executions exceeding five pounds, except in the case of a court merchant, might be stayed until the first Monday in March, provided security was given for the payment of the judgment.
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PROVISIONS OF TIIE CONSTITUTION OF 1777.
All costs attendant upon an action in the superior court were limited to three pounds, and no cause was to be allowed to depend for a longer period than two terms.
Every state officer was liable to be called to account by the House of Assembly.
Each county was required to keep its public records.
Entails were forbidden. The estate of an intestate was to be equally divided among the children, - the widow, if any, taking a child's share or dower, at her option. The estates of other intestates were to be distributed according to the provisions of the act of Charles II., unless otherwise ordered by the legisla- ture.
In each county there was to be a register of probates, ap- pointed by the legislature, " for proving wills and granting let- ters of administration."
All civil officers in every county were to be annually chosen on the day named for the general election, except justices of the peace and registers of probate, who were to receive their ap- pointments from the House of Assembly.
Schools were to be erected in each county, and supported at the general expense of the State.
Similar provision was to be made for the construction of court- houses and jails.
A free toleration of all religions was guaranteed, provided they were not repugnant to the peace and safety of the State. The support of religious teachers was left entirely optional.
With regard to the great seal of state the following device was prescribed : " On one side a scroll whereon shall be en- graved The Constitution of the State of Georgia, and the motto Pro bono publico : on the other side an elegant house and other buildings, fields of corn, and meadows covered with sheep and cattle ; a river running through the same, with a ship under full sail ; and the motto, Deus nobis hoc otia fecit."
Permission to plead and practice in the courts of Georgia was to be obtained from the House of Assembly. With that body rested the right to suspend for malpractice. This provision, however, was not intended to abridge the inherent right of every freeman to appear in and conduct his own cause.
Excessive fines and inordinate bail were forbidden. The prin- ciples of the habeas corpus act were declared a part of the con- stitution.
The freedom of the press and the right of trial by jury were
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to remain forever inviolate. No clergyman was to be allowed a seat in the legislature.
Alterations of and amendments to this constitution could be made only upon petitions from a majority of the counties; those petitions, in each instance, being signed by a majority of the voters of the counties from which they came. Under such cir- cumstances it was the duty of the House of Assembly to call a convention of the people to pass upon the alterations and amend- ments thus suggested.
Such were the provisions of the first regular constitution adopted by the people of Georgia. They were, in the main, well considered, wise, and suited to the emergency. Many of them have withstood the changes of more than a century, and to this day exert their beneficial influences.
Scarcely had this instrument been published, when an alarm was again sounded on the southern frontier. The king's troops and the Florida banditti were in motion, and the present in- cursion assumed formidable proportions. On the northeast side of the St. Illa River, on rising ground about eighty yards from the water's edge, and thirty miles in advance of Fort Howe, the Georgians had constructed " a small stockade work," called Fort McIntosh, one hundred feet square, with a bastion at each corner, and a block-house in the centre which answered the pur- poses of a magazine, a shelter for the garrison, and a tower of defense. The erection of this fort in such an exposed position was suggested by the owners of numerous and extensive herds of cattle ranging between the rivers St. Illa and Alatamaha, who craved protection for their property. Respect being had to this object, the location was well chosen ; although, being beyond the line of the Alatamaha, it was isolated in its situation and diffi- cult of relief upon an emergency. Captain Richard Winn, a young officer who had distinguished himself under Colonel Moul- trie in the defense of the fort on Sullivan's Island in June, 1776, was in command of this post. Its garrison consisted of forty men from the third South Carolina regiment, and twenty continental troops belonging to the Georgia brigade.
Lieutenant-Colonel Elbert received information that a column, some five hundred strong, under the command of Colonel Fuser, assisted by the notorious Tory officers Brown, MeGirth, and Cun- ningham, and composed of regulars, loyalists, and Indians, had taken up the line of march from St. Augustine and was moving upon Georgia. At day dawn on the morning of the 17th of
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FORT McINTOSH ATTACKED.
February, 1777, an attempt was made by Colonels Brown, Cun- ningham, and McGirth, at the head of seventy Florida Rangers and eighty Indians, to surprise the garrison of Fort McIntosh. For five hours were continuous assaults launched against the work. These were gallantly repulsed. A demand for uncondi- tional surrender, accompanied by threats of death to the entire garrison in case of refusal, was then urged. Captain Winn pro- posed and obtained a suspension of hostilities for one hour that he might deliberate. At the expiration of that time he returned the following answer: " I have considered your proposition and am bound in honor not to comply. Should we fall into your hands we shall expect to be treated as prisoners of war." This response was delivered to Colonel Brown by Sergeant Hollis bearing a flag. Upon receiving it Colonel Brown handed him a copy of Lord Howe's proclamation with the request that it be presented to Captain Winn.
Hostilities thereupon recommenced, and were continued until late in the afternoon. Brown then posted a strong guard around the fort to prevent the besieged from escaping under cover of the night, and withdrew his command a short distance. In the fort one man had been killed and three wounded.
Dark coming on, Captain Winn dispatched Sergeant Owens to Colonel Francis Harris, commanding at Fort Howe, informing him of his critical situation and requesting that reinforcements should be immediately sent. Colonel Harris was also to be ad- vised that the fort would hold out as long as possible, and that upon the first intimation of the approach of the desired assist- anco Captain Winn, with the garrison, would make a sally upon the enemy. Sergeant Owens reached Fort Howe at daylight on the morning of the 18th. Unfortunately, Colonel Harris had only forty men fit for duty, and found himself wholly unable to move for the relief of Fort McIntosh. Meanwhile Colonel Brown awaited the arrival of a reinforcement from the south side of the river, under the conduct of Colonel Fuser, consisting of detach- ments from the fourteenth, sixteenth, and sixtieth regiments of light infantry, numbering two hundred men.
At nine o'clock on the morning of the 18th the assault was renewed. Sheltering themselves behind logs and stumps, the In- dians approached quite near the fort and annoyed the besieged by maintaining a close watch and an accurate fire upon the loop- holes. The garrison still hoped for relief from Fort Howe, and held itself in readiness for the contemplated sally. About three
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o'clock in the afternoon Captain Winn was a second time sum- moned to surrender. Deeming it important to gain time, two hours were consumed in consultation. At length, despairing of the expected succor, finding that his ammunition was nearly ex- hausted and that his provisions would not last beyond another day, that officer proposed a personal conference with Colonel Fuser midway between the fort and its besiegers. Articles of capitula- tion were drawn up and assented to except one proposed by Cap- tain Winn. That article read thus : "For the further safety of the prisoners against Indian treachery a full company of British Regulars shall escort them to the Alatamaha river opposite Fort Howe, and the British commander shall be responsible for the conduct of the Indians and the Florida Rangers towards the prisoners." It was rejected by Colonel Fuser, who refused to be responsible except for the behavior of the British regulars. Winn thereupon declined to surrender and added that he did not despair of being able to defend the fort until he was reinforced. He reminded Colonel Fuser of the fact that the garrison of a fort upon the confines of Canada, surrendered under similar circum- stances, had been murdered by Indians. He also called his attention to the known cruelty of Brown, Cunningham, and McGirth, and to the savage disposition of Cussuppa, the chief in command of the Creek Indians.
Returning within the stockade and advising his men of what had transpired, they one and all heartily indorsed the action of their captain and united in a brave determination to perish hon- orably in the defense of the post. As hostilities were about to be renewed, Fuser reopened the negotiation and finally consented to incorporate the article in the terms of capitulation. The gar- rison agreed not to take up arms until regularly exchanged. For the faithful observance of the stipulations contained in the arti- cles of capitulation Lieutenants John Milton and William Cald- well were surrendered as hostages. It was understood that all privileges due to their rank as commissioned officers in the conti- nental army should be fully accorded. Taken to St. Augustine, these gentlemen suffered confinement in the castle for nine months. About sunset the fort was evacuated, the formal sur- render being conducted by Captain Winn and Lieutenant Toles. To them their side arms were returned.
Marching with his command under an escort, as stipulated for in the articles of capitulation, Captain Winn proceeded about two miles in the direction of Fort Howe and then encamped.
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CAPTAIN WINN REACHES FORT IIOWE.
Early in the evening the British officers and soldiers composing the guard began returning, under various pretexts, to their camp near Fort McIntosh. Remonstrances against this strange and un- warrantable behavior were treated with contempt and derision. By ten o'clock the escort had entirely departed and the Ameri- cans were left alone. Suspecting some treachery, Captain Winn roused up his men : and, passing through forests, swamps, and morasses probably never before traversed by Europeans, after a forced march of thirty-five miles reached Fort Howe the next day about ten o'clock.1
The news of the capture of Fort McIntosh spread rapidly through the State, and the arms-bearing population flocked to the standard of Colonel McIntosh, who was already in the field and advancing to the line of the Alatamaha. General Robert Ilowe, who had succeeded General Charles Leo in the command of the Southern Department, was notified at Charlestown of the pending invasion. He at once repaired to Savannah, leaving instructions with Colonel Moultrie to send on a strong detach- ment. Having sailed through the inland passages, Lieutenant- Colonel Marion with six hundred men, four field-pieces, and an ample supply of ammunition and provisions, reached Savannah on the 28th of February. McIntosh, however, with the first bat- talion of his brigade and some other troops hastily collected, had already met the enemy, who, surprised at this unexpected demonstration, abandoned the expedition and retreated into the heart of Florida.
So general was the alarm, and so universal the impression that a renewal of these hostilities would occur at an early day, that a large proportion of the militia of the State was ordered into service, and the rest directed to hold itself in readiness to concentrate at a moment's warning. A camp was formed at Midway Meeting-House.
It being found impossible at all times to convene the council of safety with a promptness requisite for the proper dispatch of busi- ness, President Bulloch was, by resolution of council adopted on the 22d of February, requested " to take upon himself the whole executive powers of government, calling to his assistance not less than five persons of his own choosing to consult and advise with him on every urgent occasion when a sufficient number of coun- cilors cannot be convened to make a board." Unusual as was this delegation of power it excited neither jealousy nor harsh
1 Sce McCall's History of Georgia, vol. ii. pp. 98-103. Savannah. 1816.
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comment. The times were hazardous, delays dangerous, and decision and prompt action imperatively demanded. The pru- dence, wisdom, courage, and patriotism of Mr. Bulloch were con- spicuous. In him did the people trust with a confidence and a devotion rarely exhibited.
But a little while, however, did he survive to exercise these extensive powers. Before the month of February was ended ho died, and the State was filled with mourning. He passed away, the lamp of liberty in his hand trimmed and burning, his noblo character, patriotic impulses, and brave acts a precious heritage to his people. The savor of his good name is indissolubly asso- ciated with the proudest annals of the period, and he will always be remembered as the first republican president of Georgia.
On the 4th of March, 1777, Button Gwinnett was, by the council of safety, elected president and commander-in-chief until such time as a governor should be duly appointed in accordance with the constitutional provisions.
During the session of the assembly in Savannah a resolution was adopted to add three battalions of infantry and a squadron of dragoons to the Georgia troops serving on the continental establishment, and to form them all into a brigade. Colonel Lachlan MeIntosh was to be promoted to the rank of brigadier- general and assigned to the command of these forces. His com- mission was to bear date as of the 16th of September, 1776. Gwinnett had been a candidate for this position. He was em- bittered by MeIntosh's success. When he assumed the reins of government, he permitted not his anger to slumber. In order to mortify the military pride of his adversary, he endeavored to impress upon the public mind the danger of vesting military commanders and courts-martial with the exercise of any powers which could possibly be withheld from them and entrusted to the civil authorities.
Acting upon this theory he intervened in army matters to such an extent that he seriously impaired the discipline of the troops, and incited among the officers a spirit of insubordination toward the commanding general. Thus, when an officer was charged with an offense either civil or military, Gwinnett claimed the right of trying him before the executive council. If an officer was to be detailed for special duty, or assigned to a temporary command of moment, he insisted that he should take his orders from the president and council. Anxious to signalize his ad- ministration by a feat of arms, he planned an expedition against
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GWINNETT PLANS AN INVASION OF FLORIDA.
Florida. The prospect of retaliation was pleasing to the public, and in the breast of the president there lurked an ambitious hope that he would be able to overrun and subdue that sparsely popu- lated province and annex it to Georgia.
Instead of entrusting the command of the expedition to Gen- eral McIntosh who, as the ranking military officer of the State, was entitled in all fairness and in accordance with custom to ex- pect and to claim it, Gwinnett, heaping affront upon affront, set him aside and determined in person to lead the expedition. His purpose was to form an invading army with the militia and con- tinental troops without consulting General McIntosh on the sub- ject or even allowing him to accompany his brigade. Proclama- tions were printed which he proposed to scatter broadcast through the land so soon as he crossed the river St. Mary. His idea was that, to insure success, nothing would be needed but to hoist the standard of liberty in Florida, make a show of an army, and encourage the people to a change of government. The movement was to be immediate. Upon reflection, however, remembering that the province of East Florida was largely peopled by loyal refugees from Georgia and Carolina, that no reliance for subsist- ence could be placed upon the products of the region, and that an accumulation of supplies was requisite before he could venture upon the expedition, he abandoned the scheme as at first chimer- ically entertained.
Still intent upon the consummation of his ambitious project, he assembled lis council, denominating it for the time being a coun- cil of war, and concerted the following plan of operations. Saw- pit Bluff, twelve miles from the mouth of St. John River, was designated as the place, and the 12th of May as the time for the rendezvous of the forces which were to participate in the reduc- tion of East Florida. Colonel Baker, with the Georgia militia, was to march by land, while Colonel Elbert, embarking four hun- dred of the continental troops in three galleys and several small boats, was to repair by water to the point indicated. General Ilowe was requested to furnish some Carolina troops.
After strenuous exertions Colonel Baker succeeded in securing from the militia only one hundred and nine volunteers. With these he proceeded to Fort Howe where he expected Colonel Sum- ter, with his regiment, to form a junction with him. That officer, however, with his command, had been ordered back to South Carolina. Disappointed, yet not disheartened, Colonel Baker began crossing the Alatamaha River. It was so swollen that its
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waters completely filled the swamp on either hand. Forty-eight hours were consumed in effecting a passage. At day dawn on the 4th of May he was attacked by a party of Indians. Lieuten- ants Robeson and Fraser were wounded. The savages were quickly repulsed. They were pursued as far as Finholloway Creek. Crossing the rivers St. Illa and St. Mary on rafts, Colo- nel Baker reached Sawpit Bluff on the day appointed. Finding that Colonel Elbert had not arrived, he dispatched Major William Baker with forty men to reconnoitre the country as far as the Cow-ford on the St. John River. He fell in with one Barefield, an inhabitant of the province, who informed him that spies had already communicated intelligence of the advance of the Amer- ican forces, and that St. Augustine was supposed to be the ob- jective point of the demonstration.
During the night of the 15th Colonel Baker lost forty horses, stolen by Indians. Taking their tracks that officer found them about four miles from his camp, hobbled and on the edge of a deep swamp. He succeeded in recovering them from their cap- tors after sustaining a loss of two men wounded and four or five horses killed.
No intelligence having been received from Colonel Elbert, and the enemy in St. Augustine being aware both of the location of his camp and of the strength of his command, Colonel Baker, on the morning of the 17th, deemed it prudent to change his en- campment to a position more favorable both for observation and for retreat, in case he should be attacked by a superior force. While doing so he was confronted by Colonel McGirth. Hastily dismounting his men he prepared for action, which had no sooner commenced than twenty or thirty of his command, without firing a gun, fled into an adjacent swamp. The main body of the enemy, led by Colonel Brown, had been formed in three divis- ions of one hundred each. Two of them pressed Colonel Baker on the flanks and compelled him to retreat, through a galling fire, into the swamp. The colonel himself narrowly escaped cap- ture, as he was forced to retire on foot, his horse having been appropriated by one of his men. Only about fifty of his com- mand participated in the affair, the rest departing in confusion from the scene of action which was near Nassau River. The Americans lost eight killed (five of whom were butchered by the Indians after they had surrendered), nine wounded, and thirty- one captured. Among the slain were Lieutenants Fraser and McGowen. Lieutenant Robeson was wounded, and Captains
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Few and Williams were taken prisoners. The command was wholly dissipated. Some of its members subsequently joined Colonel Elbert, but most of them in small parties made their way back to the Georgia settlements.
Colonel Elbert was much perplexed upon finding that he was placed in command of the continental forces detailed for the ex- pedition, to the exclusion of General McIntosh who, as his supe- rior officer, was entitled to claim that distinction. He was also greatly concerned at the abnormal condition of affairs brought about by orders emanating from President Gwinnett and his council, by which he was required to report directly to, and re- ceive his instructions from, the governor and council. On the 24th of April he communicated with General McIntosh, advising him of the unsatisfactory and disagreeable situation in which he found himself, and expressing his regrets that all requisite orders did not come through his commanding general.1 He even went so far as to call the attention of the governor and council to the irregularity. Gwinnett, however, controlled his council and, being of an imperious will and implacable in his hate, was firmly resolved to supplant General McIntosh, and subject him, if possi- ble, to humiliation and further disgrace.
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