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THE HISTORY OF GEORGIA IN THE 
 EIGHTEENTH CENTURY, AS RE- 
 CORDED IN THE REPORTS 
 OF THE GEORGIA BAR 
 ASSOCIATION 
 
 IHE 
 
 COMPILED BY 
 
 ORVILLE A^ PARK 
 
 OF MACON. 
 
 Read before the Thirty-eighth Annual Session 
 
 of the Georgia Bar Association at 
 
 Tybee^ Island, Georgia 
 
 June 3, 1921. 
 
 [Reprinted from the Annual Reportl 
 of the Georgia Bar Association. J 
 

 ,^^^ 11. 'tit) 
 
THE HISTORY OF GEORGIA IN THE 
 EIGHTEENTH CENTURY, AS RE- 
 CORDED IN THE REPORTS 
 OF THE GEORGIA BAR 
 ASSOCIATION 
 
 COMPILED BY 
 
 ORVILLE A. PARK, 
 
 OF MACON. 
 
 In his address as President of this Association (1889) 
 Walter B. Hill called attention to the new literature coming 
 into existence through the instrumentality of the bar associa- 
 tions of the several States — *'a literature,'' which he charac- 
 terized as, "of great value, and thoroughly creditable to the 
 associated effort which has led to its development"^ Ten 
 years later, having become in the meantime the great Chan- 
 cellor of the University, he said : 
 
 "More important than any single utility of the Associa- 
 tion has been the creation of a new species of legal literature. 
 No member of the Association can fail to contemplate with 
 pride the eighteen volumes of the reports of its proceedings. 
 These reports are most highly esteemed and are greatly 
 sought in other States. They contain monographs on legal 
 topics, and valuable contributions to legal history, to the 
 discussion of public questions, and to the literature of 
 the law"^' 
 
 Having served the Association in an official capacity for 
 more than half of its thirty-eight years of life and on that 
 account being especially conversant with its reports, the Exe- 
 cutive Committee has asked me to prepare a paper on the As- 
 sociation's literature. To attempt to discuss it all, even in 
 the briefest way, is entirely beyond the limits of a single 
 paper. I have therefore chosen as the particular topic to pre- 
 sent for your consideration the history of Georgia as record- 
 
ed in the reports, and for two reasons : First, because in no 
 field has the literature of the Association been of greater 
 interest or of more lasting value; and second, because this 
 valuable historical material is in large part unavailable and 
 practically lost, scattered as it is through thirty-eight annual 
 reports (several of which are out of print), in addresses, 
 papers and the reports of committees, unindexed and well 
 nigh forgotten. 
 
 Of course the Bar Association historians have been 
 largely interested in the constitutional and legal history of 
 the state and its military and political history are only al- 
 luded to incidentally. And each one has written on some 
 particular topic rather than on a period of time. Some in- 
 cidents or some phases of the history may be given undue 
 emphasis or treatment out of proportion to their impor- 
 tance, while other and mayhap more important matters may 
 be passed over with but scant notice. Yet I do assert 
 that a very fair history of Georgia has been written and 
 recorded in the annual reports of the Georgia Bar Associa- 
 tion, and much of the legal history of the state is better told 
 in these reports than anywhere else. 
 
 When I had collected this historical material together 
 I confess I was amazed at its scope, its volume, and its rich- 
 ness. I soon discovered it would be impossible to use it 
 all, and therefore decided to confine this paper to the first 
 sixty-seven years, from the founding of the Colony to the end 
 of the century. 
 
 It has seemed best to let these Association historians 
 tell their own stories in their own language rather than to 
 use the material which, with so much painstaking care, they 
 have laboriously gathered, in the preparation of a new and 
 an independent history. 
 
 The plan adopted is after the manner of the "Histo- 
 rians' History of the World" — extracts from different au- 
 thors being put together to form something of a connected 
 whole. Of course the story is not so smoothly told by the 
 
 2 
 
lips of many as if one only had spoken. But under the plan 
 adopted the identity of each writer is preserved — each tells 
 his own story in his own way. 
 
 Thirty-six different papers, addresses and monographs 
 have been used in the compilation. From some of them 
 only a paragraph, perhaps only a sentence or two, is taken, 
 while others are used almost bodily. On some of the topics 
 only one author has written, while in other sections almost 
 every paragraph is taken from a different paper. 
 
 In order not to break into the thread of the story quo- 
 tation marks are not used and the names of the authors 
 and references to their papers are omitted. Following each 
 extract, however, and all are quoted almost literally, is an 
 Arabic numeral referring to a table at the end of the paper 
 which gives the name of the author and of his paper with 
 a reference to the Georgia Bar Association Report in which 
 the paper may be found. 
 
 For convenience of reference, the paper being much long- 
 er than the usual Bar Association paper, a table of contents 
 is inserted. 
 
 Macon, Ga. 
 
 September i, 1921. 
 
 ORVILLE A. PARK 
 
CONTENTS 
 
 The Original Grants 5 
 
 The Charter of the Colony 6 
 
 The First Settlement 7 
 
 The Terms and Conditions of the Grants of Land 8 
 
 Oglethorpe's Treaties with the Indians 11 
 
 The First Conveyances 12 
 
 Restraints upon Alienation Removed 13 
 
 No Records of Laws Passed During This Period 15 
 
 The Town Court and its Jurisdiction ^__ 15 
 
 Bailiff Causton and the Lawyerless Court 17 
 
 No Lawyers but Much Litigation 23 
 
 Litigation with the Trustees in England 26 
 
 Georgia, a Royal Colony 28 
 
 The General Court and its Judges 30 
 
 The Practice of Law in the Colony 33 
 
 The Colony Divided into Parishes 36 
 
 The South Carolina Grants 36 
 
 The Form and Conditions of the Grants 37 
 
 Colonial Legislation 41 
 
 The Beginning of the Conflict 50 
 
 The Constitution of 1777 54 
 
 The Revolution 61 
 
 The Judiciary, 1777-1800 69 
 
 Some Eighteenth Century Judicial Proceedings 72 
 
 The Bar 79 
 
 Georgia Under the Articles of Confederation 82 
 
 The Head-Right System 84 
 
 The Status of Married Women 89 
 
 The Beaufort Convention 91 
 
 The Western Boundary 96 
 
 The Federal Constitution Ratified 97 
 
 The Constitution of 1789 98 
 
 McGIllIvaray and the Treaty of New York loi 
 
 Georgia v. Brailsford 102 
 
 Chisholm v. Georgia 104 
 
 Clark's Independent State 106 
 
 The Constitution of 1795 114 
 
 The Yazoo Fraud 114 
 
 The Pine-Barren Speculations 122 
 
 The Constitution of 1798 126 
 
 The Laws Compiled and Published 133 
 
 The Judiciary Act of 1799 137 
 
GEORGIA IN THE EIGHTEENTH CENTURY 
 
 THE ORIGINAL GRANTS 
 
 Georgia began its career as a trust estate; and the em- 
 ployment of a lawyer must have been among the first acts 
 of the Board of Trustees, for, by reason of repeated and 
 conflicting grants, the title to this wilderness was in such con- 
 fusion that we can almost imagine an attorney making an 
 examination of the various royal charters, and submitting 
 to his clients something like a modern Abstract. It would 
 show the original grant to Lord Raleigh; his attainder in 
 1603; the consequent forfeiture of this property to the 
 Crown; then the actual grant from Charles I to Sir Robert 
 Heath, which by reason of non-user, or failure to comply 
 with conditions, was declared void; next, the grant by Char- 
 les II to the Lords Proprietors of South Carolina, who, in 
 1717, conveyed all of the land between the Savannah and 
 the Altamaha to Sir Robert Montgomery, there to found 
 a colony, bearing the bombastic name of "Margravate of 
 Azilia."^ 
 
 The grant was, however, to be void unless a settlement 
 was effected within three years. And albeit Sir Robert de- 
 vised a most marvellous scheme of settlement, and in his 
 prospectus invited settlers on most liberal terms to come to 
 this new Province, of which is herein set forth, "that nature 
 hath not blessed the world with any tract which can be perf- 
 erable to it; that Paradise, with all her virgin beauties, may 
 be modestly supposed, at most, but equal to the native excel- 
 lencies," this Eden remained unpeopled save by th savage. 
 The grant expired and with it the "Margravate of Azilia."* 
 
 The estate again vested in the eight Lords Proprietors of 
 South Carolina, seven of whom, in July 1726, sold their un- 
 divided seven-eighths interest to the king for the sum of 
 22,500 pounds sterling. (Watkins, 713.) 
 
 This Abstract showing the fee not to be in the Crown, 
 the Trustees evidently decided to take what they could get, 
 and a deed to this seven-eighths interest was made to them 
 in July, 1 73 1. Probably, in consideration of a grant by 
 
the King to land in North CaroHna, John, Baron Hawnes, 
 Lord Carteret (afterwards Lord Granville), conveyed his 
 interest to the Trustees on February 28, 1732, and thus 
 the entire estate to this principality was vested in the Trus- 
 tees of the Colony of Georgia for the space of twenty years. ^ 
 
 THE CHARTER 
 
 With the motives and purposes inducing the settlement 
 of the Colony of Georgia, it is not the province of this paper 
 to deal. That its origin sprung from the great heart of 
 General Oglethorpe, as its successful accomplishment was 
 due to his genius for organization and government is a mat- 
 ter of history — a history but recently eloquently told by a 
 distinguished member of our profession and of this body, 
 (Chas. C. Jones) whose performance has left nothing un- 
 said or to be desired. The charter which is a fine specimen 
 of the conveyancer's art, first recites the reason for the in- 
 stitution of the Colony, namely, to afford to impoverished 
 persons an opportunity to earn in the free lands of the New 
 World that livelihood which they could not find in the old; 
 to strengthen the Southern Colonies of America, and es- 
 pecially to interpose a barrier to the repetition of the In- 
 dian ravages recently committed in South Carolina. For 
 these ends it creates "Our trusty and well beloved John, 
 Lord Viscount Percival, of our Kingdom of Ireland; our 
 trusty and well beloved Edward Digby, George Carpenter, 
 James Oglethorpe, George Weathcote, Thomas Tower, 
 Robert Moor, Robert Wicks, Roger Holland, William 
 Sloper, Francis Eyles, John Laroche, James Vernon, Wil- 
 liam Belitha, Esqrs., A. M.; John Burton, B. D.; Richard 
 Bundy, A. M.; Arthur Bedford, A. M.; Samuel Smith, A. 
 M.; Adam Adderson and Thomas Coram, gentlemen; their 
 associates and successors a corporation by the name of 'The 
 trustees for establishing the Colony of Georgia, in North 
 America.' " It conveyed to the corporation "seven undivid- 
 ed parts, the whole in eight equal parts, to be divided, of 
 all those lands, countries and territories lying and being in 
 that part of South Carolina, in America, which lies from the 
 
most northern part of a stream or river commonly called 
 the Savannah, all along the sea coast to the southward, un- 
 to the most southern stream of a certain other great water 
 or river called the Altamaha; and westerly from the heads 
 of the said rivers respectively, in direct lines to the south 
 seas, and all that shore, circuit and precinct of lands within 
 the said boundaries, with the islands on the sea lying oppo- 
 site to the eastern coast of the said lands, within twenty 
 leagues of the same, which are not inhabited already, or set- 
 tled by any authority derived from the Crown of Great 
 Britain;"* "with all the soils, grounds, ports, gulfs, bays, 
 mines, as well royal mines of gold and silver as other 
 mines, precious stones, quarries, woods, rivers, waters, fish- 
 ings, as well royal fishings of whales and sturgeons as 
 other fishings, pearls, commodities, jurisdictions, royalties, 
 privileges and pre-eminenices."^ 
 
 THE FIRST SETTLEMENT 
 
 The province was named "Georgia." Ample powers 
 were given to the trustees for founding the Colony. They 
 were to act through a common council, which could dispose 
 of the lands of the Province at will; but as a check upon large 
 estates, it was "Provided, also, that no greater quantity of 
 lands be granted, either entirely or in parcels, to or for the 
 use or in trust for any one person, than five hundred acres, 
 and that all grants made contrary to the true intent and 
 meaning hereof should be absolutely null and void." 
 
 On the 20th of July, 1732, the corporators met, accepted 
 the charter, and proceeded to perfect an organization. So 
 rapidly did matters progress, that on the 17th of November, 
 1732, Oglethorpe sailed with the first colony for Georgia, 
 arriving at Charleston, in the province of South Carolina, 
 on the 13th of January, 1733, where the colonists rested for 
 a short period, while Oglethorpe went southward to choose 
 the foundation for this new State. Leaving Charleston, af- 
 ter a voyage of three days, the colonists landed, on the first 
 day of February, 1733, at Yamacraw Bluff. In the language 
 of Georgia's latest historian, (Jones) : "The ocean had been 
 
crossed and the germ of a new colony was planted in 
 America." 
 
 TERMS AND CONDITIONS OF THE GRANTS OF LAND 
 
 In order to facilitate the taking up of lands, the trustees 
 had, on the 25th day of October, 1732, conveyed to three of 
 the colonists, Thomas Christie, William Calvert and Joseph 
 Hughes, five thousand acres of land in the colony of Geor- 
 gia in trust to convey therefrom fifty acres to every male 
 adult who requested it and wished to settle. The terms and 
 conditions of the grants were fixed by the trustees. The 
 principal conditions were these: 
 
 "The grantee of a town lot was to build upon it, within 
 eighteen months, a house twenty-four by eighteen feet, at 
 least eight feet high, and reside in the province for three 
 years. Ten acres of the fifty acres should be cleared and 
 cultivated within ten years from date of grant. One hun- 
 dred white mulberry trees were to be planted as soon as the 
 clearing therefor could be made, and were to be carefully 
 preserved, and all trees dying were to be replaced by mul- 
 berry trees. 
 
 "No alienation for any term, or of any estate, without 
 special license from the trustees was allowed. 
 
 "Conviction of felony or the employment of negroes, 
 without license, were the grounds of forfeiture." 
 
 In addition to these conveyances to be made by Calvert, 
 Christie and Hughes, the trustees further offered to grant 
 to any person who would, within twelve months from date 
 of grant, remove to Georgia with ten able-bodied free white 
 men servants, all of age, and remain three years, cultivating 
 the lands and building thereon, five hundred acres at a rent- 
 tal of twenty shillings per one hundred acres to begin ten 
 years from the date of the grant. Within ten years the gran- 
 tee undertook to clear two hundred acres and plant there- 
 on two thousand white mulberry trees and on every one hun- 
 dred acres as cleared one thousand additional trees of like 
 sort. Any part of the tract remaining uncultivated, unclear- 
 ed, unplanted and without worm fence or paling six feet 
 
 8 
 
high, after the expiration of eighteen years, should revert 
 to the trustees. 
 
 To male servants filling a term of service of not less than 
 four years in the province the common council agreed, that 
 upon the expiration of their term, if requested by the grantee 
 so to do, to grant to each of them "twenty acres of land in 
 tail-male upon such rents, conditions, limitations and cove- 
 nants, as might have been attached to grants to men-servants 
 in like circumstances." 
 
 The grantees of the five hundred acre tracts were pro- 
 hibited from keeping, lodging, hiring, or employing any 
 negro except by special permission; in fact the general pro- 
 hibition of the trustees declared: "The use of negroes and 
 rum is prohibited in this province." 
 
 It will be remembered that by the charter of the colony 
 it was provided that no one should hold more than five hun- 
 dred acres of land. One of the principal objects of this pro- 
 vision was, by preventing large holdings, to repress the con- 
 sequent temptation to employ slave labor and to thus pre- 
 vent the importation of negroes into the province. 
 
 To the infant colony two things were of vital importance, 
 a supply of food and an organized military force to repel 
 Indian attacks; this last no less necessary to insure the sup- 
 ply of food than to protect life. 
 
 The necessities of the case, demanding that the grantor 
 of the soil should find in his feoffee a farmer and a soldier, 
 produced a curious repetition of history in the character of 
 the estates granted; and as the military character of the feud- 
 al system produced the estate in tail-male, which might fur- 
 nish in the tenant a soldier for the war, so in the youngest 
 Colony of Great Britain on the American continent, the es- 
 tate tail which could furnish the male tenant as a soldier and 
 farmer was introduced in the one and universal tenure of 
 land. 
 
 This analogy may be pursued further: Every lawyer 
 knows the many statutes passed to prevent the alienation of 
 estates tail, and their evasion by the Courts. And it is reas- 
 sonably certain that in the earlier days of their institution. 
 
such alienation was rigidly prohibited, in order that the num- 
 ber of military tenants should not be lessened by one tenant 
 holding two or more fiefs. And so it is stated of the lands 
 in Georgia by a writer who visited the Colony in 1735, that 
 they may not be alienated by the owners. Says this writer: 
 "In order to maintain many people, it was proper that the 
 land should be divided into small Portions, and to prevent 
 the Uniting them by Marriage or Purchase. For every time 
 that two Lotts are United the two looses a Family, and the 
 Inconveniency of this shows itself at Savannah, notwith- 
 standing the care of the Trustees to prevent it. They suf- 
 fered the moiety of the Lotts to descend to the Widows dur- 
 ing their lives. Those who remarried to men who had Lotts 
 of their own, by uniting two Lotts made one to be neglected, 
 for the strength of Hands who could take Care of one was 
 not sufficient to look to and improve two. These uncleared 
 Lotts are a Nuisance to their Neighbors. The trees which 
 grow upon them Shade the Lotts; the Beasts take shelter 
 in them, and for want of clearing the Brooks which pass 
 through them, the Lands above are often prejudiced by 
 Floods. To prevent all these Inconveniences, the first Reg- 
 ulation of the Trustees was a strict Agrarian Law, by which 
 all the Lands near Towns should be divided — 50 acres to 
 each Freeholder. The Quantity of Land, by Experience, 
 seems rather too much, since It Is impossible that one poor 
 Family can tend so much Land. If this Allotment is too 
 much, how much more inconvenient would the uniting of two 
 be? To prevent it, the Trustees grant the Lands in Tail- 
 Male, that on the expiring of a Male Line, they may regrant 
 it to such Man having no other Lott as shall have married 
 to the next Female Heir of the Deceased as is of good char- 
 acter. This manner of Dividing prevents also the Sale of 
 Lands and the Rich thereby monopolizing the Country." 
 (Francis Moore's Voyage to Georgia (1734), 27.) 
 
 Or, as it Is was expressed in the rules laid down by the 
 Trustees for the year 1735: 
 
 "All Lots are granted in Tail-Male, and descend to the 
 Heirs Male of their bodies forever, and in case of Failure 
 
 10 
 
of Heirs Male to revert, to be granted again to such Persons 
 as the Common Council of the Trustees shall think most 
 for the Adv-antage of the Colony; and they will have a spe- 
 cial Regard to the Daughters of Freeholders who have 
 made improvements on their Lots, not already provided 
 for by having Married or Marrying Persons in Possession 
 or entitled to Lands in the Province of Georgia, in Posses- 
 sion or Remainder. 
 
 "All Lotts are to be preserved separate and undivided, 
 in order to keep up a number of men equal to the number of 
 Lotts, for the better defence and support of the Colony. No 
 person can lease out his House or Lott to another without 
 License for that Purpose, that the Colony may not be ruined 
 by absentees receiving and spending their Rents elsewhere. 
 And no person can alienate his Land, or any Part, or any 
 Term, Estate, or interest therein to any other Person, with- 
 out special License for that Purpose; to prevent the uniting 
 or dividing of the Lotts." 
 
 A modification of these rules, however, permitted the 
 person dying without male heir to name his successor, and 
 to him the trustees regranted the lands in like tail-male.* 
 
 Oglethorpe's treaties with the Indians 
 
 By a treaty made with the head men of the various 
 tribes of the Creek Indians, on the 21st of May, 1733, the 
 lands between the Savannah and Ogeechee, with the excep- 
 tion of a reservation on the Savannah river near Pipemaker 
 bluff, and all lands and islands within tide-water between the 
 Ogeechee and Altamaha, except the islands of Ossabaw, St. 
 Catharine and Sapelo, were granted to the trustees. This 
 treaty was confirmed by another, made in 1739.^ 
 
 The treaty of 1733 was also our first attempt to regulate 
 commerce. In it General Oglethorpe fixed the commercial 
 relations between us and our Indian neighbors. We agreed 
 that a white blanket should equal five buckskins, a blue one 
 three, a gun ten, eighteen flints one, and a knife one doeskin; 
 and the Indians agreed "to keep the talk in our hearts as 
 long as the sun shall shine or the waters run in the rivers." 
 
 11 
 
That of 1739 reached a somewhat higher plane, when Geor- 
 gia obtained her first "fugitive slave law," the Indians agree- 
 ing that they would return them and have for each live slave 
 caught beyond the Oconee four blankets and two guns, 
 and half that if on this side of the Oconee; but if the slave 
 was killed running away or resisting arrest, one blanket 
 was to be paid for the delivery of his head.' 
 
 The more we study the career of Oglethorpe, the more 
 we are impressed with the broad greatness of his spirit and 
 the long reach of his practical and business Ifke intellect. 
 The military dispositions he made are above criticism and his 
 skill in dealing with the Indians suggests the highest prac- 
 tice of statesmanship.' 
 
 THE FIRST CONVEYANCES 
 
 The Trustees, having acquired all outstanding titles to 
 the district of Savannah, and the town having been laid 
 out and the lots distributed, on the 21st of December, 1733, 
 Thomas Christie and William Calvert, the survivors of the 
 three colonists, created trustees for this purpose; conveyed 
 in one deed to eighty-four grantees, fifty acres of land to 
 each; each fifty acres comprising one town lot in Savannah, 
 sixty by ninety feet, a garden lot on the confines of the town 
 of five acres, and a farm of forty-four acres and one hundred 
 and forty-one poles. Two shillings per annum, to commence 
 at the expiration of ten years, was to be paid as rent for each 
 lot. 
 
 The conditions of the deeds have been already given. 
 The lands were granted in tail-male. This, the first deed 
 ever executed in Georgia, is of record in the Secretary of 
 State's oflUce. Attached to it is a schedule of the wards, 
 tithings and lots, with their grantees. A plat of Savannah, 
 therein referred to as attached, is not recorded with it, and 
 has been lost. 
 
 As shedding further light on the tenures and titles of 
 that time, the partial description of the division of the land 
 as determined upon by the trustees, to promote the best 
 interests of the Colony, given by Francis Moore in his 
 
 12 
 
account of Savannah, which he visited in 1735, is of interest. 
 
 "Each Freeholder has a Lott in Town 60 Foot by 90 
 Foot, besides which he has a Lott beyond the common, of 5 
 acres, for a Garden. Every ten Houses makes a Tything and 
 to every Tything there is a mile square which is divided into 
 12 Lotts besides Roads. Each Freeholder of the Tything 
 has a Lot or Farm of 45 acres there, and two Lotts are re- 
 served by the Trustees to defray the charge of the public. 
 The town is laid out for two hundred and forty Freeholders; 
 The quantity of land necessary for that Number is 24 Square 
 Miles; every 40 Houses in Town make a Ward to which 4 
 Square miles in the Country belong; each Ward has a Con- 
 stable and under him four Tything Men. Where the Town 
 Lands end, the Villages begin; four Villages make a Ward 
 without, which depends upon one of the Wards within the 
 Town. The use of this is, in case a war should happen, that 
 the Villagers without may have places in the Town to bring 
 their Cattle and Families into for Refuge, and to that Pur- 
 pose there is a Square left in every Ward big enough for the 
 Out Wards to encamp in. 
 
 "There is Ground also kept around about the Town un- 
 granted in order for the Fortifications. Beyond the Villages 
 commence Lotts of 500 acres; these are granted upon Terms 
 of keeping 10 servants, etc. Several Gentlemen who have 
 settled such Grants have succeeded very well and have been 
 of great service to the Colony." (Moore's Voyage to Geor- 
 gia (1735), 28.) 
 
 As the freeholders of Savannah increased, deeds of like 
 tenor with the first were duly executed to them. Other 
 deeds were made by the trustees, through their common 
 council, either direct or by some authorized agent. Some- 
 times similar deeds of trust to that above described were 
 made for like purpose. 
 
 RESTRAINTS UPON ALIENATION REMOVED 
 
 From the beginning there was more or less dissatisfac- 
 tion felt at the refusal of the trustees to grant fee simple 
 estates, and at the restraints on alienation; and frequent 
 
 13 
 
were the petitions and remonstrances sent by the colonists 
 urging the removal of these grievances.* 
 
 Indeed, one writer recounts that just as the ship "Anne" 
 was ready to sail, the Colonists insisted upon provision be- 
 ing made by which the widow's dower should be secured and 
 daughters could inherit from fathers. On account of the 
 unsettled condition of the country and the war with the 
 Spanish in Florida, the Trustees argued that estates in 
 tail male should be preserved as an encouragement to 
 persons capable of performing military service; but the 
 colonists insisted on their position, and finally the mat- 
 ter was unsatisfactorily compromised, by "ordaining that 
 the widow should have her thirds, and an agreement that if 
 the landowner died without male issue, he might by will 
 designate his successor." The difficulty being temporized, 
 the ship sailed. But the opposition continued in spite of 
 the reasoning of those in control.^ 
 
 In the complaints of the colonists this trouble always 
 occupied a place next to the iniquities of the Judiciary. Fi- 
 nally the Trustees, grown desperate, formulated a reform 
 which thickened the fog and concerning which Dr. Tailfer 
 felt called upon to observe: "We believe this paper will 
 perplex most people who have not studied the law, to make 
 sense of it; and as there are no lawyers in Georgia, it would 
 seem as if it had been sent over with no other end than that 
 it should not be understood."' 
 
 On June 20th, 1739, the trustees, while refusing to grant 
 the relief prayed, had modified the system so far as to permit 
 daughters to inherit from deceased parents in default of 
 male issue; and had further provided that the widow should 
 have for life the mansion house, garden and a moiety of the 
 lands of deceased, and that deceased, in default of issue, 
 might devise his lands, provided that no devisee could hold 
 more than five hundred acres. In default of devise, the land 
 went to the heirs at law of the original grantees. Finally, 
 on the 25th of May, 1750, the trustees, yielding to the 
 prayers of the colonists, removed the ground of grievance 
 by converting all estates heretofore granted, and hereafter 
 
 14 
 
to be granted, by them into estates in fee simple, to be held 
 in free and common socage. This, and the repeal of the law 
 prohibiting the use of the slave, or negro labor, was soon 
 felt in the impetus given to the location and settling of large 
 bodies of land, which immediately followed.* 
 
 NO RECORD OF LAWS PASSED DURING THIS PERIOD 
 
 The Royal Charter authorized the Trustees "to make 
 laws and regulations," but whether this only meant "by- 
 laws," or whether those enacted have been lost, it is a fact 
 that from the date of the settlement until the Trustees sur- 
 rendered the property to the Crown as a Colony, there is 
 scarcely a record of legislative action.^ 
 
 THE TOWN COURT AND ITS JURISDICTION 
 
 In most of the colonies the courts developed according 
 to the needs of the inhabitants. But the Trustes for the 
 Establishment of the Colony of Georgia did not wait to find 
 out what was wanted, but before the colonists left London, 
 organized a court with a full complement of officers and 
 imposed a ready-made and most elaborate judicial machin- 
 ery. So that when the "good ship Ann" sailed in 1732 with 
 the "first sixty" as passengers, there was on board an undue 
 proportion of the judiciary — 3 judges, 2 tything men, 2 con- 
 stables and a clerk. 
 
 Shortly after their arrival Oglethorpe determined to 
 commemorate the founding of Georgia by opening court. 
 Accordingly, on July 7, 1733, the Settlers met on the Bluff, 
 the Commission was read, the Magistrates were inducted 
 into office, court was opened, the first Georgia jury impanel- 
 ed and a case was tried, (i Jones Hist, of Georgia, 151 ; i 
 Stevens Hist, of Georgia, loi.) Thus the first public event 
 in Georgia was a judicial function. And "July 7th," was 
 long celebrated in the Colony as "Anniversary of Court 
 Day," being its July 4th, February 22nd and Thanksgiving 
 Day all in one. The Court thus so strikingly inaugurated 
 was furnished with accompaniments most surprising for a 
 tribunal in the woods of a new settlement. The judges were 
 supplied with "purple gowns trimmed with furr," and the 
 
 15 
 
Trustees purchased a "copper-gilt mace," costing the equiv- 
 alent of $500, and a seal costing $150, or, together, five 
 times the value of the log house in which court was held. 
 They intended to give the judges a high-sounding title, and 
 so they called them Bailiffs, after those bearing that name in 
 an ancient English tribunal. In this they made a sad mistake, 
 for from this now belittling title arose the impression that 
 the court only had a petty jurisdiction. As a fact it had all 
 the power over life liberty and property possessed by the Su- 
 perior Court of the present day. This fact appears from the 
 Commission which conferred jurisdiction "for the Hearing 
 & Determining of all manner of Crimes Offences Pleas Pro- 
 cesses Plaints Actions Matters & Things whatsoever aris- 
 ing or happening within the Province of Georgia in America 
 or between any Persons inhabiting or residing there whether 
 the same be Criminal 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 Execu- 
 tions thereupon; * * * 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 unlawful Assemblies Conspiracys Confed- 
 eracys Transgressions Trespasses Riots Routs Rescues Es- 
 capes Contempts Negligences Concealments Maintenances 
 Oppressions Deceits & all other Crimes Offences & Injurys 
 whatsoever & also of the Accesorys thereunto;* * * * 
 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 Tresspass in Eject- 
 ment & other Trespasses Covenants Promises Contracts & 
 Retinues whatsoever.*^ 
 
 *The appointment of the Court and the commission of the three 
 Bailiffs is set out in full as an appendix to Judge Lamar's "Bench 
 and Bar of Georgia During the Eighteenth Century." 30 Ga. Bar 
 Ass'n Rep. 52. 
 
 16 
 
BAILIFF CAUSTON AND THE LAWYERLESS COURT 
 
 On July 7, 1733, at the close of a hot summer day which 
 had been devoted to feasting and thanksgiving and patriot- 
 ism, the first court was organized in Georgia, presided over 
 by Bailiffs George Symes, Richard Hodges and Francis Scott 
 — Noble Jones being recorder and Richard Cannon and 
 Joseph Coles, constables.' An old record innocently states: 
 "There were no pleaders of the law present, but some fine 
 old English beer."* Without a lawyer; without the faint- 
 est appreciation of the terrible responsibility such a trust im- 
 posed; without learning to apprehend and, as was demon- 
 strated, without capacity to observe or ambition to acquire, 
 this remarkable tribunal began its career thousands of miles 
 from the sources of its power, in a strange land and in a com- 
 munity made up of English, Scots, Germans and Indians. 
 The office or the climate seems to have been too much for 
 Mr. Hodges, who was speedily gathered to his fathers. 
 What might have been the brilliant careers of Symes and 
 Scott will ever be speculative, for Mr. Thomas Causton 
 being named to the vacancy, from that moment the Court 
 was Causton, and Causton was the Court. There being no 
 constitutional inhibitions in those days, it befell that Mr. 
 Causton was also the public storekeeper — an incident not 
 without its influence on the early judicial history of Georgia. 
 Who he was and whence he came ! How he looked and in 
 what garb moved among those dependent upon his lofty 
 caprice, are of the mysteries as profound as the birthplace 
 of Homer or the pleasing air which was wafted to the re- 
 strained mariners of the wandering Ulysses. By what comes 
 pretty near being the consensus of colonial opinion, he was 
 of a limitless ambition; passionate and proud; regarding 
 public office as a private Investment, and conducting himself 
 generally as the central figure of a colonial system which had 
 been exploited with the single view of enabling him to grow 
 and develop to full proportions. It cannot but be interest- 
 ing to the learned and dignified jurists who in our day toil 
 for scant reward for the people of Georgia and who sit ha- 
 bitually in the blinding glare of public opinion, to consider 
 
 17 
 
their far-off predecessor who, sitting in the humble hut at 
 Savannah, which was by courtesy called a court, did as he 
 pleased not only in defiance of public opinion but with a fixed 
 determination, perfectly understood, to commit public opin- 
 ion to jail, in his capacity of judge, if it protested, or to 
 starve it into submission In his capacity of storekeeper. 
 When the long-suffering trustees, at length concluding that 
 he had sufficiently monopolized the public attention, sent 
 Mr. Peter Gordon to take his place, the resourceful Mr. 
 Causton simply shifted his person a few feet from the court- 
 room to the public store, and declining to furnish Mr. Gor- 
 don with commissary supplies, that unfortunate gentleman, 
 after a hopeless siege, maintained with fortitude and with- 
 out provisions, struck his flag and moved out of his strong- 
 hold, which was at once reoccupled by Mr. Causton — that 
 great man holding that public ofiSce was ferae naturae and 
 when at large belonged to whomsoever could catch and hold 
 it. Grand juries fulminated and petitions filled with more 
 grievances than the Declaration of Independence found their 
 way across the seas and were duly gathered into the Minutes 
 and Journal of the Trustees. The reading is rich and va- 
 ried. It appears that if an associate justice did not readily 
 acquiesce In the policies and decisions of Mr. Causton, that 
 gentlemen incited him to undue indulgence in strong liquor, 
 of which there was no lack in General Oglethorpe's prohi- 
 bition State. From the bench he declared that the laws of 
 England were no laws In Georgia, and like a modern Calig- 
 ula produced from his pocket a small book which he pro- 
 claimed contained the laws he proposed to administer. He- 
 made false Imprisonments; discharged grand juries "whilst 
 matter of felonies lay before them;" intimidated petit juries, 
 and "in short, stuck at nothing to oppress the people.'* 
 When at length an appellate tribunal was formed, the mag- 
 istrates to be appealed from were the judges to be appealed 
 to, which, to say the least, was not a promising condition and 
 justified the very moderate criticism that "the administrators 
 of such a policy should, in propriety, be invested with some 
 suitable resemblance of character and equity." One grand 
 
 18 
 
jury advised the trustees "that the said Thomas Causton 
 by his office of storekeeper hath the dangerous power in his 
 hands of alluring weak-minded people to comply with un- 
 just measures; and also overcoming others from making 
 just complaints;" and that "the known implacability of the 
 said Causton, and his frequent threatening of such people, 
 is to many weak-minded though well-disposed persons a 
 strong bulwark against their seeking redress." A list of 
 complainants, whose names fill three octavo pages looking 
 like a census of the colony, forms a gruesome exhibit to the 
 official presentment. 
 
 But grand juries and petitioners were the least of the 
 avenging spirits which began to creep fast upon the gay foot- 
 steps of Mr. Causton. It was of his misfortune that, justly 
 or unjustly, he had incurred the enmity of Dr. Patrick Tail- 
 fer and in "A True and Historical Narrative of the Colony 
 of Georgia in America," with a quotation from the fourth 
 ode of Horace on the title-page, and a dedication and; 
 preface of length and dignity, the facile pen of that far- 
 off chronicler has preserved for all time an estimate of Mr. 
 Causton and his associates expressed in language, to use 
 the words of Mrs. Gamp upon a celebrated occasion, 
 "such as lambs could not forgive nor worms forget." 
 There was little left of colony, trustees, or the world 
 at large when the doctor laid aside his pen; and this is the 
 sketch he has drawn of Mr. Causton: "Whilst we labored 
 under these difficulties in supporting ourselves, our civil lib- 
 erties received a more terrible shock; for instead of such a 
 free government as we had reason to expect, and of being 
 judged by laws of our mother country, a dictator (under 
 the title of bailiff and storekeeper) was appointed, * * * 
 whose will and pleasure were the only laws in Georgia. In 
 regard to this magistrate, the others were entirely nominal, 
 and in a manner but ciphers. Sometimes he would ask in 
 public their opinion, in order to have the pleasure of showing 
 his power in contradicting them. He would often threaten 
 juries, and especially when their verdicts did not agree with 
 his inclination or humor. And in order to establish his ab- 
 
 19 
 
solute authority, the store and disposal of the provisions, 
 money, and public places of trust were committed to him; 
 by which alteration in his state and circumstances he became 
 in a manner infatuated, being before that a man of no sub- 
 stance or character, having come over with Mr. Oglethorpe 
 amongst the first forty, and left England upon account of 
 something committed by him concerning his majesty's 
 duties. However, he was fit enough for a great many pur- 
 poses, being a person naturally proud, covetous, cunning, and 
 deceitful, and would bring his designs about by all possible 
 ways and means. As his power increased, so did his pride, 
 haughtiness and cruelty; inasmuch that he caused eighteen 
 freeholders with an officer to attend at the door of the 
 court every day it sat, with their guns and bayonets, and 
 they were so commanded, by his orders, to rest their fire- 
 locks as soon as he appeared; which made people in some 
 manner afraid to speak their minds, or juries to act as their 
 consciences directed them. He was seldom or never un- 
 covered on the bench, not even when an oath was admin- 
 istered; and being perfectly intoxicated with power and pride, 
 he threatened every person without distinction, rich and 
 poor, strangers and inhabitants, who in the least opposed 
 his arbitrary proceedings, or claimed their just rights and 
 privileges, with the stocks, whipping-post, and loghouse, 
 and many times put those threatenings into execution; so 
 that the Georgia stocks, whipping post and log-house soon 
 were famous in Carolina, and everywhere in America where 
 the name of the Province was heard of, and the very thought 
 of coming to the colony became a terror in the people's 
 mind." 
 
 Dr. Tailfer has remarks to make about other judges, 
 but these he regarded as weaklings. Mr. Gordon was "of 
 a very winning behavoir, affable and fluent in speech," and 
 soon got the good-will of the people who began to lay their 
 grievances before him. But just as they came to know him 
 well and love him, Mr. Causton cut off his provisions 
 "whereby he was obliged, after six weeks' stay, to leave the 
 place." Another bailiff, Mr. Parker, according to Dr. Tail- 
 
 20 
 
fer, was "a man who had nothing to support himself and 
 large family but his day labor, which was sawing," and so 
 he became dependent on the public store. On the same au- 
 thority, he was a man of no education and was soon mould- 
 ed to Mr. Causton's liking. Being a slave to liquor, he who 
 plied him most with it (an attention which Mr. Causton 
 never forgot) had him right or wrong on his side. Mr. 
 Darn, who ascended the bench only to die, was crazy in 
 body and mind; and his successor, Mr. R. Gilbert, could 
 neither read nor write. In the Journal of the Trustees it 
 appears that Lieutenant Colonel Cochran and Captain 
 Thompson, late arrived from Georgia, were before the 
 Trustees, and their views are thus noted: "That Mr. Hen. 
 Parker, i Bailiff, is a tolerable magistrate; but it was a sur- 
 prise and jest our appointing Gilbert the Taylor to be a 
 magistrate. That there is not a man in the Colony fit to 
 be a magistrate. That there is not a man in the Colony 
 fit to make 3d Bailiff." It was of the irony of fate that Mr. 
 John Fallowfield, who being a magistrate, yet sided with 
 the people, was declared by the trustees for so doing to be 
 a leader of malcontents, setting himself up as dictator and 
 for these reasons summarily dismissed from oflice. 
 
 Probably the full effect of Mr. Causton's administration is 
 best illustrated by the typical cases cited by Dr. Tailfer. Mr. 
 Odingsell appears to have been a rural gentleman from the 
 neighboring province of Carolina; nervous as to tempera- 
 ment, and uninstructed in the devious ways and strange sur- 
 roundings of city life. The temptation to visit the metrop- 
 olis of Georgia was too strong for him, and setting aside 
 the natural caution of his disposition, and with the osten- 
 sible object of seeing for himself how the colony succeed- 
 ed, he disembarked upon what should have been hospitable 
 shores. After a philosophic survey of such conditions and 
 sights as were presented to his bucolic experience during the 
 early days of his stay, he became venturesome and under- 
 took to see Georgia by night. He was at once apprehended 
 as a stroller and carried to the guard-house where he was 
 threatened with the stocks and whipping-post that "being a 
 
 21 
 
mild and peaceable man," the terror and fright threw him 
 into a "high fever and strong dehrium;" and after lying in 
 this "distracted condition" for days, crying out to all that 
 they were come to take him to the whipping-post, he died. 
 
 But not even a trivial consideration of the judicial history 
 of Georgia is permissible without reference to the great 
 and celebrated case of the King versus Watson. Exactly 
 what Mr. Watson had done it is difficult to ascertain. One 
 record would indicate that having incurred the displeasure 
 of Mr. Causton, he was indicted for stirring up animosities 
 in the minds of the Indians. The Journal of the Trustees, 
 on the other hand, suggests that he was really guilty of mur- 
 der in that he had induced one Skee to indulge in unlimited 
 quantities of rum — enough to have killed two men, and 
 which actually did bring Mr. Skee to a conclusion. But un- 
 certainty as to the crime seems to have presented no obsta- 
 cle to an indictment. At the trial Mr. Causton presided 
 and acted in the capacity of Judge and witness. The jury 
 having returned several verdicts which did not accord with 
 the views of the court, was on each occasion remanded to 
 their room, until in desperation it found Mr. Watson guil- 
 ty of "using unguarded expressions," and recommended him 
 to the mercy of the court as a lunatic. Mr. Causton, mould- 
 ing the verdict to suit himself, sent Mr. Watson to jail, 
 from which he was subsequently released on bail. Mr. Wat- 
 son, the jury and the people fiercely assailed Mr. Causton 
 for tampering with the verdict, whilst the trustees arraign- 
 ed him for bailing a lunatic which they declared was itself 
 an act of lunacy. To the frequent representations which 
 were made by the people of the colony, the trustees sitting 
 In their quiet office near the Old Palace Yard, Westmin- 
 ster, turned a deaf ear, and through their secretary, Mr. 
 Benjamin Martyn, expressed their displeasure with much 
 the same indignant earnestness as was exhibited by Mr. 
 Bumble when young Twist petitioned for his rights. 
 
 But Mr. Causton got out of perspective when he began 
 to encroach on the power and rights of the trustees. He 
 might do as he pleased when the practical result was only 
 
 22 
 
scaring Mr. Odingsell to death and locking up the bibulous 
 Watson. When he became freehanded in the drawing of 
 sola bills he was summoned home for trial. To the relief 
 of the colony and of civilization, he died at sea, and that 
 was the end of Mr. Thomas Causton. The system sur- 
 vived him several years, but does not seem to have been car- 
 ried on in the same magnificent way. Mr. Thomas Jones, 
 for instance, was also "passionate and proud," and was a 
 great stickler for Caustonian precedents. But he lacked 
 the mentality of that distinguished man. In fact, it was said 
 of him that he surpassed Causton in everything that was 
 bad "without having one of his good qualifications."' 
 
 NO LAWYERS BUT MUCH LITIGATION 
 
 In this Lawyerless and Lawless Court the inhabitants 
 had, as Bishop Stevens says, "to follow the old Gallic cus- 
 tom and plead each man his own cause in person," even 
 though there were one or two in the colony who knew some- 
 thing about law. One is referred to as a "pretended law- 
 yer," and another as having been "bred as a smatterer in 
 law". (4 C. R. 61, 423; 5 C. R. 62, 183, 188; 7 C. R. 98.) 
 Williamson is mentioned as having been "bred an attor- 
 ney." He moved to Charleston, where Oglethorpe thought 
 he had better remain because he could make more practic- 
 ing there than in Savannah. Nothing more is said of him 
 until 1740 when Stephens recites that "Williamson return- 
 ed from Charleston and turned solicitor in a cause or two 
 heard betwixt some of our Indian traders. But, being time- 
 ly admonished, thought it safest not to appear as pleader, 
 though he confidently affirmed that he had the Trust's 
 leave to practice as an attorney." (4 C. R. 618, 431, 443; 
 5 C. R. 177; I C. R. 41; 5 C. R. 257.) 
 
 It seems, therefore, certain that during the government 
 of the Colony by the Trustees there was no practicioner in ' 
 Georgia and that the courts were not authorized to admit 
 persons to the Bar. 
 
 For a part of the time this afllirmatively appears from 
 a statement made in 1745 by William Stephens that "all of 
 
 23 
 
V 
 
 the Magistrates of Fredereka had been summoned to Eng- 
 land as witnesses in the case of Col. Cook against Gen. 
 Oglethorpe. Aind as divers felonies had been committed 
 in the County of Fredereka, and there can be no trial be- 
 cause of the absence of the Judges, the officers in Savannah 
 were in doubt as to whether they had jurisdiction and .... 
 thought it expedient to take the opinion of some able lawyer 
 as to how far they might safely proceed. We having no 
 such gentlemen to advise us, and knowing that Captain Hor- 
 ton, by direction from Gen. Oglethorpe frequently advises 
 with Mr. Rutledge in intricacies of this nature, wherein the 
 law is not clear, thought that his advice should be the rule 
 to proceed by, rather than that such notorious crimes should 
 go unpunished." (6 C. R. 144-146.) 
 
 Indeed the absence of lawyers was given as one of the 
 inducements for emigrating to the new colony. Those, how- 
 ever, who were already there and suffering from the Trus- 
 tees' mistakes took a very different view of this fact, as ap- 
 pears from the "Narrative under Oath" signed by a major- 
 ity of the male inhabitants of the colony. For it is there 
 said "That the British Nation was deceived with the fame 
 of a happy, flourishing colony and of its being free from 
 that pest and scourge of mankind called lawyers — for want 
 of whose legal assistance the miserable inhabitants were 
 exposed to a more arbitrary government than was ever ex- 
 ercised in Turkey or Muscovy." (i McCall, 54, 2 Ga.. 
 Hist. Col. 204; 21 C. R. 326.)^ 
 
 Having been all things to all men in all times, to the 
 Trustees, the lawyer had come to be in the wilds of Geor- 
 gia a plain and transparent Grecian horse, his thick sides 
 swelling with painful possibilities for the peaceful Troy 
 before whose gates he had been opportunely stayed. And 
 thus it was solemnly concluded that Georgia could and 
 would afford to do without lawyers, and incidentally, with- 
 out law, taking its justice in drastic doses from a court which 
 was at once lawyerless and lawless. It was a scoffing de- 
 nial — the colonists in Savannah bragging that there were 
 no lawyers there, and the staid Salzburger from the swamps 
 
 24 
 
of Effingham lifting up his rejoicing voice that with them 
 dwelt neither lawyers, Courts, nor Rum — a juxtaposition 
 of terms, expressed with an irritating capital which, whilst 
 doing great injustice to a sober calling, gravely reflected 
 upon the habits and yearnings of the dweller in Yamacraw. 
 When last heard from Effingham was still dry and Chat- 
 ham wet.' 
 
 But while there were no lawyers, it does not follow that 
 there were no lawsuits. Indeed, the scanty records and 
 Stevens' Journal contain an undue proportion of references 
 to court proceedings. 
 
 There are suits on notes, bonds, accounts, actions of 
 trespass, ejectment and — no end of imprisonments for debt. 
 The court even took cognizance of Ecclesiastical offences, 
 and proceedings were instituted therein against Mr. Wesley 
 for refusing communion to a member of the church and for 
 similar charges, as though there was a complete union 
 of church and state and as if the Town Court of Savannah 
 had the jurisdiction of the Court of Arches in England. (4 C. 
 
 But it was on the criminal side that business was most 
 active, and as there was no practicing attorney the defend- 
 ants represented themselves, the King being represented 
 by the constable. Anyone who has ever seen a trial con- 
 ducted by and before laymen will not be surprised to find 
 that with the constable on one side and the defendant on 
 the other, technical points were insisted on with vigor. For 
 these early settlers did not seem to need the advice of an at- 
 torney to make points in order to escape being whipped on 
 the bare back or hung by the neck until they were dead. 
 
 These criminal proceedings had all the common law ac- 
 companiments. There was the usual "pious fraud" of find- 
 ing that the value of the property was less than a penny, so 
 as to reduce the offence below a felony. In one case a wo- 
 man was convicted of bigamy and in order to save her life 
 she was given the benefit of clergy. Such leniences, how- 
 ever, were rare, for usually the convictions were sure and 
 the punishment heavy. Standing in the pillory, sitting in 
 
 25 
 
the stocks, whipping on the bare back were common, and 
 at one session three men were convicted for murdei, and 
 two hung, and all without lawyers — or perhaps because 
 they had no attorney.'' 
 
 LITIGATION WITH THE TRUSTEES IN ENGLAND 
 
 But although the Trustees permitted no lawyer to prac- 
 tice in Georgia, they themselves had occasion for their ser- 
 vices in England, both in formal matters and in heavy liti- 
 gation. The Charter required the Board to submit its ac- 
 counts annually to the Lord High Chancellor, the Chief 
 Justice of England, the Chief Justice of the King's Bench, 
 and the Master of the Rolls. This brought the affairs of 
 the Colony to the attention of Lord Hardwick, by many 
 thought to be the greatest of the English Chancellors. He 
 made a contribution to the fund and showed great interest 
 in the colony. When the Trustees decided (3 C. R. 87) to 
 abandon Savannah and make a new capital further south, 
 they named it Hardwick, after him. Sir Joseph Jekyl, 
 Master of the Rolls, and friend of Oglethorpe, also had 
 occasion to examine the accounts and made contribution 
 of 500 pounds, the largest single gift made to the Trust. 
 (3 C. R. 63; 5 C. R. 252.) In recognition of the fact 
 Jekyl Island was named in his honor and he thereby ac- 
 quired the permanent fame that comes to those after whom 
 rivers, mountains and Islands are called. 
 
 But the Trustees were not solely interested in making 
 reports to admiring judges. They were several times sued 
 and Colonel Oglethorpe secured the adoption of a resolu- 
 tion that they should "employ the Attorney General and 
 Solicitor General in all cases where the Trustees had oc- 
 casion to be represented in legal proceedings." ( i C. R. 
 282, 285; 2 C. R. 150.) In pursuance of this resolution, 
 Ryder, Attorney General, afterwards Chief Justice of Eng- 
 land, and William Murray, Solicitor General, afterwards 
 Lord Mansfield, were retained. 
 
 There were four of these legal proceedings in England. 
 We do not know who was counsel for the Trustees in the 
 
 26 
 
case brought by Bosomworth in right of his wife, (Mary 
 Musgrove-*) claiming that as an Indian princess she was en- 
 titled to St. Catherine's Island, by virtue of the reservation in 
 Oglethorpe's first treaty with her tribe. The first hearings 
 were before the Privy Council in London. It was then re- 
 mitted to the Governor and Council in Georgia and resulted 
 in a decree that Bosomworth should receive a large sum, in 
 payment of which St. Catherine's Island was ordered to be 
 sold. (8 C. R. 85, 323.) 
 
 The next case was brought against the Trustees, in the 
 Court of King's Bench, by Rev. Mr. Norris, who claimed 
 800 pounds to be due him for ecclesiastical services render- 
 ed in Savannah. The Trustees admitted an indebtedness 
 of 70 pounds. He recovered a verdict equivalent to $350, 
 but the costs were $300. 
 
 Another proceeding against the Trustees was heard in 
 Parliament. Thomas Stephens, as the representative of a 
 majority of the inhabitants of the colony, charged that the 
 affairs of Georgia were mismanaged and the colony mis- 
 governed. The matter was regarded as of such importance 
 that a public hearing was had before the House of Com- 
 mons which permitted Stephens to speak for the Georgians 
 and allowed the Trustees to be heard by counsel. They se- 
 lected William Murray, who was then in the height of his 
 fame as a lawyer. He needed to put forth his best efforts, 
 for the vote was exceedingly close, 77 being for, and 88 
 against censuring the Trustees. It was, however, a techni- 
 cal if not a moral victory, and the Earl of Egmont sardon- 
 ically enters in his journal that "Stephens is to be brought 
 before the House tomorrow on his marrow-bones and rep- 
 rimanded from the chair," and on June 30, 1742, he enters 
 (5 C. R. 640), "This day Thomas Stephens was according 
 to order, brought to the Bar, where on his knees, the Speaker 
 severly reprimanded him and it is ordered he be discharged, 
 paying his fee." 
 
 The last proceeding against the Trustees grew out of 
 the fact that Georgia had passed an Act making it unlaw- 
 ful for Carolinians to trade with Indians west of Savannah 
 
 27 
 
without license. Carolina attacked the act as void. There 
 was a hearing before the Board of Trade and Plantations, 
 the predecessor of the modern Privy Council on an appli- 
 cation for an order in the nature of an injunction to prohib- 
 it the enforcement of the Georgia statute. Georgia was 
 again represented by Murray and Attorney General Ryder. 
 He had previously given an opinion that a Carolina stat- 
 ute requiring Virginians to get a license to trade with In- 
 dians was void as denying Virginians the right of an Eng- 
 lishman to trade wherever he desired. This opinion was 
 probably quoted against Ryder and must have stampeded 
 the Georgia lawyers, including Murray. At any rate, Mr. 
 Wesley, who was present as a witness in the case, entered 
 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 in- 
 stance of a suit by one Colony against another before the 
 Privy Council, where Colonial statutes, approved by the 
 king, were nullified, because interfering with Inter-Colonial 
 — ^or what we call interstate commerce. ** 
 
 GEORGIA, A ROYAL COLONY 
 
 On June 20th, 1752, just nineteen years and eleven 
 months from the day that they had accepted the same, and 
 organized with such sanguine hopes, the trustees having 
 resolved that they could no longer provide for the defence 
 and protection of the Colony, executed a deed of surrender 
 of their charter to the Crown* and a quit-claim to all the 
 vast territory between the Savannah and Mississippi, and 
 "defaced the seal."" 
 
 From thenceforth Georgia became a royal province. 
 This surrender was for seven-eighths interest conveyed by 
 
 28 
 
the Crown in 1732, and for one-eighth interest convey- 
 ed in the same year to the Trustees by Lord Carteret. 
 
 Subsequent to the surrender of the charter grants by 
 Georgia's Trustees, King George the Second, on August 
 6th, 1754, issued a commission to John Reynolds as Cap- 
 tain-General and Governor-in-Chief over the identical ter- 
 ritory as that contained in the grant to James Oglethorpe 
 and other Trustees. 
 
 On May the 4th, 1761, King George the Third com- 
 missioned James Wright as Captain-General and Governor- 
 in-Chief of the Colony of Georgia, the commission covering 
 the same territory as that previously granted to Oglethorpe 
 and other Trustees, and to Reynolds as Governor, except 
 that the southern boundary extended from the Altamaha 
 to St. Mary's River. About this period, to wit: on June 
 26th, 1764, George the Third issued a commission to one 
 William de Brahm as Surveyor-General of the southern 
 district of North America, with instructions as to surveys 
 desired to be made by the Crown, including the boundaries 
 of the province of Georgia. In this survey Georgia's terri- 
 tory was given as lying between latitude 30° 26' 49" to lati- 
 tude 35° 30' — the north boundary being, according to that 
 survey, 30' north of that now claimed by our state." These 
 boundaries became of the greatest importance in the con- 
 test with South Carolina referred to hereinafter. 
 
 It was governor. Sir James Wright, who in 1773 com- 
 plained of the Northern Colonists because "they take but 
 little of our produce and drain us of every trifle of gold 
 and silver that is brought here by giving a price for guineas, 
 moidores, Johannes, pistoles and dollars far above their 
 real and intrinsic value, so that we can never keep 
 any among us." We see how early began the talk here 
 of money of real and intrinsic value, copied by Blackstone 
 in 1776, and how soon we had trouble about money; and 
 that, although we had gold coins of other nations, includ- 
 ing the pistole of John of Portugal (perhaps the only lucky 
 John who ever wore a crown) and "the dollar of our dad- 
 
 29 
 
dies," though bearing the stamp of Spain, we were not 
 happy. We see how early money acquired the habit of not 
 staying here but going North, and that sound money com- 
 manded a premium in the markets. If we seek an explana- 
 tion, we will perhaps find that we exchanged rice, corn, peas. 
 Indigo, lumber, live stock and barreled beef and pork for 
 what the Northern Colonists sent here, to-wit, rum, flour, 
 biscuits and provisions, and we ate and drank so much as 
 to throw the balance of trade the wrong way.^ 
 
 THE GENERAL COURT AND ITS JUDGES 
 
 England's experience with granting charters to Ameri- 
 can colonies had not been satisfactory, and it had been de- 
 cided that no others should be issued. When the new order 
 was to be established in Georgia the King appointed Rey- 
 nolds 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 au- 
 thority 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, 
 appointed Attorney General for this Province, was daily 
 expected here, they thought it proper to postpone further 
 consideration of so weighty a matter until the arrival of the 
 Attorney General." When he reached Savannah he was 
 asked to prepare a plan for constituting the courts. On 
 December 12, 1754 (7 C. R. 33, 38, 43), he presented a 
 report which was adopted and is the very germ of our Ju- 
 dicial system. It provided for the erection of a "General 
 Court with like power and authority as is used and exercis- 
 ed by the respective courts of King's 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 the Town 
 
 30 
 
Court of Savannah, this Commission went to the other ex- 
 treme 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 write 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 business 
 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 Ter- 
 miner; Court of General Sessions; Supreme Court; and Cir- 
 cuit Court. (15 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 circumstances 
 will admit." (7 C. R. 53. Stokes' British Constitution 
 in America, 131.) 
 
 All of this was the result of the work of William Clif- 
 ton, Attorney General of the Province, the first lawyer 
 authorized to practice in Georgia. 
 
 He was a faithful officer, remaining in the Province 
 and attending to his duties in person, instead of following 
 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 Barrington, Esquire, acted as Attor- 
 ney 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 Geor- 
 gia (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 Jus- 
 tice 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 letter." 
 
 For several years after his arrival in Georgia, Attorney 
 
 31 
 
General Clifton had refrained from qualifying as a mem- 
 ber of the Council, but in 1757 he decided to assume the 
 duties of that office and thereupon (7 C. R. 591, 592) sub- 
 mitted a memorial to the Governor and Council in which 
 he expressed a desire to be admitted to the Board, explain- 
 ing that "on his arrival in the Province, finding a multipli- 
 city of business arising from the appointing and establish- 
 ing 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 tak- 
 ing his seat at the Board." 
 
 On the adoption of Clifton's Report In 1754 Noble 
 Jones and Jonathan Bryan were appointed judges "during 
 pleasure." (See Stokes' British Constitution In America 
 (259), where their commission is set out In full.)" 
 
 Noble Jones was the Colonel of the first Regiment rais- 
 ed in Georgia ; while Jonathan Bryan was Captain of the 
 first troop of Horse. As junior officers of a South Carolina 
 regiment both had been with Oglethorpe in his expedition 
 against St. Augustine. Dr. Noble Wymberly Jones, son 
 of the Judge and Colonel, was one of the most active of the 
 Georgia patriots before and during the Revolution and 
 Jonathan Bryan, though nearly eighty years of age, was a 
 member of the Council of Safety, and was described by the 
 British Commander as "a notorious ring-leader of rebel- 
 lIon."^« 
 
 These Associate Judges were evidently to hold office 
 until the King named a Chief Justice for the Province. 
 
 His salary of 500 pounds was paid by Parliament, and, 
 according to the custom of the time, there were also costs 
 and fees which sometimes amounted to as much again. 
 This 1,000 pounds was, considering the difference in pur- 
 chasing power, equivalent to at least $10,000 in the pres- 
 ent money; and as the custom was to fill the place with an 
 EngHsh Barrister, the King — Miller (2 Bench & Bar 97), 
 says Gov. Ellis — appointed William Grover, a graduate 
 of Pembroke College, Oxford, and a Barrister oi the Inner 
 Temple, London. 
 
 32 
 
He remained in office until 1762, when charges were 
 made against him because of his arbitrary and partial con- 
 duct. The Bar recommended that he should be suspended 
 by the Governor and Council until the King's pleasure 
 could be known. There was a hearing and an order of sus- 
 pension. Grover replied in verse — which was voted a scan- 
 dalous attack on Governor Wright — and left the colony. 
 (Jones' Hist, of Ga., 54.) 
 
 He was succeeded by William Simpson, appointed chief 
 Justice December 15, 1766. (9 C. R. 428.) 
 
 And this brings us to the next Chief Justice, "Anthony 
 Stokes; of the Inner Temple, London; Barrister at Law; 
 and His Majesty's Chief Justice, and one of his Council 
 in Georgia" as he describes himself on the title page of one 
 of his books. 
 
 "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 
 Sunbury, 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 abil- 
 ity. He was our first legal author and published a pam- 
 phlet : 
 
 "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."® 
 
 THE PRACTICE OF LAW IN THE COLONY 
 
 As we have seen in Williamson's case, the Colonial 
 courts did not admit persons to practice, that power being 
 exercised by the Trustees in London. But beginning with 
 the King's Government in Georgia, the courts admitted per- 
 
 33 
 
sons to the Bar. We do not know what were the terms 
 of their admission. Stokes (p. 269) says that In the Colo- 
 nies generally those who had read at the Inns of Court or 
 had served clerkship in England were admitted on produc- 
 ing proper certificates, but leaves it uncertain as to how 
 those were admitted who had had no such preparation. ** 
 
 The early province was blessed with the presence of 
 legal advisers who had been called to the Bar at the Inns of 
 Court, London. The duties of counselor and attorney were 
 united In the same person, much to the disgust of Justice 
 Stokes, who evidently considered "practice" In the making 
 of a lawyer a great disadvantage, for he says: "The prac- 
 tical part has so employed the attention of colonial advo- 
 cates that few have leisure to attain to any considerable de- 
 gree of knowledge, and the advocate who has the greatest 
 fluency may sometimes be considered as the ablest law- 
 yer." He Intimates, too, that the advocates were not averse 
 to strife, because he says: "Most of the questions which 
 arise In the colonies are founded In litigation and not in 
 Intricacy." (269-270)'' 
 
 It was not until 1754 that the Georgia Courts admitted 
 attorneys to practice. In that year this power was exercised, 
 as we learn from the fact that in the list of fees payable to 
 the Chief Justice appears this entry: "For admitting every 
 lawyer to practice, 2 pounds," — the fee bill also fixes the 
 costs payable to Proctors, Solicitors In Chancery and Attor- 
 neys of 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.) 
 
 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 Law 
 schools without examination In court. 
 
 The names of Thomas Burrlngton, Charles Watson, 
 William Handley, William Woodruff, William Ewing, 
 John Lucena, Alexander Wyley, Grey Elliott, James Box, 
 
 84 
 
appear as attorneys in proceedings before the Governor and 
 Council. The Colonial Records show that money was occa- 
 sionally paid out by the colony for legal service; and the 
 names of the colonial attorneys general: Charles Pryce, 
 William Graeme and James Hume are thus preserved In 
 the Appropriation Bills like flies in amber. 
 
 Three of the four Colonial Governors attended the Inns 
 of Court. William Stephens was a student of the Middle 
 Temple and had occasion to use his legal training when he 
 was made President of the Colony and presided in land cases 
 and on appeals from the Town Court of Savannah. Gov- 
 ernor 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 train- 
 ing which was valuable when they sat in the Court of Chanc- 
 ery or presided on appeals from the General Court.** 
 
 These colonial lawyers knew that "many mickles make 
 a muckle," and that, from their standpoint, it was better 
 to charge something for everything rather than to include 
 all in a lump sum. They had their fee bill, copied no doubt 
 largely from that in force in England, where every service 
 had its price. Under the Colonial Cost Bill there was a re- 
 tainer fee of 7 shillings; every time an attorney filled up a 
 writ he was paid 2 shillings, and one shilling more for a 
 copy to keep. Whenever he drew a declaration, replica- 
 tion, rejoinder, demurrer, joinder in demurrer, or other 
 pleading, his fee was 2 shillings, with 4 pence for every copy, 
 and I shilling additional for signing his name; for every at- 
 tendance at court his fee was i shilling, and for every mo- 
 tion or argument after his appearance 2 shillings; he was 
 paid for his brief and for striking the jury 2 shillings each. 
 In fact, he charged for everything he did, for everything 
 he said, for everything he wrote, for everything he copied, 
 and then for everything he signed, all of which was charged 
 in the bill of costs and paid by the losing party.^* 
 
 In Chief Justice Stokes' Narrative is an account of a con- 
 troversy with the Bar over a Rule that "if an Attorney be 
 
 35 
 
absent when his case was called, he should not be reddy un- 
 til 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 produced a similar Rule 
 of the King's Bench in England, whereupon the Counsel 
 were of the opinion that the precedent producd justified the 
 rule." (12 C. R. 331, 345.)'' 
 
 COLONY DIVIDED INTO PARISHES 
 
 When the trustees originally colonized Georgia, they 
 established only one county therein, the county of Savannah. 
 In 1 74 1 the county of Frederica was established. These 
 counties were divided into numerous districts. By the Co- 
 lonial Act of 15th of March, 1758, the country between 
 the Savannah and Altamaha, including the islands as far 
 south as St. Simon's, were divided into eight Parishes. To 
 give their boundaries, as laid down in the Act, would be 
 too tedious. The territory between the Savannah and Ogee- 
 chee, from the coast to the country surrounding Augusta, 
 was divided into the Parishes of Christ Church, St. Mat- 
 thews, St. George and St. Paul, stretching in this order from 
 the sea to the Indian line. South from Ogeechee to the Alta- 
 maha, in like succession, stretched the Parishes of St. Phil- 
 ip's, St. John's and St. James. Frederica and the two is- 
 lands of St. Simon's formed the Parish of St. Andrew. 
 When the country between the Altamaha and St. Mary's 
 was added to Georgia, the Turtle, Little Satilla and Great 
 Satilla rivers formed dividing lines for the four new Par- 
 ishes of St. David, St. Patrick, St. Thomas and St. Mary, 
 which in order, reached from the Altamaha to the Florida 
 line.* 
 
 THE SOUTH CAROLINA GRANTS 
 
 By the peace between Great Britain and Spain in 1763, 
 the former acquired the Floridas. The country between the 
 Altamaha and St. Mary's was added to Georgia, and her 
 Governor ordered to assume jurisdiction over the same. 
 The original province of Georgia extended only to the Al- 
 tamaha on the South, and South Carolina under the llm- 
 
 36 
 
its fixed by her original charters claimed jurisdiction over 
 this region, South of that river. The contest with the Span- 
 iards had heretofore forbidden any exercise of actual au- 
 thority. As soon, however, as Great Britain acquired the 
 Floridas, and established their Northern boundary, at the 
 St. Mary's and thirty-first degree of North latitude, before 
 learning the pleasure of the Crown as to this country be- 
 ween old Georgia and the Florida line. Governor Boone, 
 of South Carolina, by virtue of the rights claimed by that 
 province, proceeded to grant to various parties, tracts of 
 land in this new country south of the Altamaha. A stormy 
 correspondence ensued between Sir James Wright, then 
 Governor of Georgia, Governor Boone, in South Carolina, 
 and the bflicials in England. The practice was stopped by 
 the British Government and the convention of Beaufort, in 
 1787, settled the dispute in Georgia's favor. By an act of 
 25th March, 1765, a time was fixed within which these 
 grants should be proven and recorded in Georgia, or be 
 barred. 
 
 Some of the "Carolina Grants" as they were called, are 
 registered in the Secretary of State's ofiice and some of the 
 titles in question draw their origin from the province of 
 South Carolina. While commenting hereon, it may be no- 
 ticed that some few claims were also made to lands under 
 grants emanating from the Lords Proprietors of Carolina; 
 notably, one made by the heirs of Sir William Baker to 
 twelve thousand acres of land. Some of this land had been 
 granted to the soldiers of Oglethorpe's regiment. McCall, 
 in his history of Georgia, says that the heirs of Baker suc- 
 ceeded in their claim, and the soldiers had to re-purchase 
 from them.* 
 
 THE FORMS AND CONDITIONS OF THE GRANTS 
 
 The quiet gained for the province of Georgia by the re- 
 moval of the menace of the Spanish hostilities from her 
 southern border, coupled with the availability of her unlo- 
 cated land, brought many settlers to her soil. The in- 
 crease of the business of the land office was considerable. 
 
 37 
 
It will be interesting to note the forms of grants then 
 in use in the province. All titles sprung from the Crown 
 a/id were held in fee simple, and in free and common so- 
 cage. 
 
 The town lots were granted with all the preciseness and 
 verbosity of the old conveyancing, to the grantee, he "yield- 
 ing and paying for said lot" "yearly, and for every year, 
 one peppercorn, if demanded." 
 
 The conditions of the grant required the building of a 
 house (as prescribed) within two years, upon forfeiture of 
 one pound sterling per annum for failure so to do. If the 
 house was not built within ten years, the grant was forfeit- 
 ed. The grant specified that it was to be void unless regis- 
 tered in the Register's office, "and a docquet thereof also 
 entered in the Auditor's office" within six months from its 
 date. 
 
 The grants to farms were drawn in the same old style, 
 enumerating all of the appurtenances granted including the 
 "fishings," and also the "privilege of hunting, hawking, and 
 fowling." 
 
 To the Crown were reserved all white pine trees and 
 the tenth part of mines of silver and gold. The rent reserv- 
 ed was two shillings for every hundred acres, to commence 
 at a given time, usually one or two years after date. 
 
 The grantee was further bound, within three years, to 
 clear and work three acres of arable land, or clear and drain 
 three acres of swamp, or drain three acres of marsh for 
 every fifty acres of "plantable" land in the tract. Within 
 a like time he must put on every fifty acres accounted bar- 
 ren, three neat cattle, or six goats, or sheep, and keep them 
 there until three acres for every fifty was improved. Some 
 grants contained this additional condition: If any of the 
 tract was stony, unfit for tillage or pasture, the grantee was 
 to begin within three years to employ one able hand, for 
 every one hundred acres, "in digging any stone quarry or 
 coal, or other mine," and continue to so employ such hand 
 for three years. This was sufficient cultivation for said 
 one hundred acres. 
 
 38 
 
Every three acres cleared, worked or drained redeem- 
 ed fifty acres from the operation of these conditions and left 
 only the balance of the tract liable to forfeiture for their 
 breach. A proportionate amount of cattle and stock could 
 also be removed from the tract and (if the grant contained 
 such condition) any like quantity of quarrying and mining 
 stopped as each three acres was fully reclaimed. If the rent 
 reserved remained due and unpaid for one year, and no 
 distress could be found on the premises, the grant reverted. 
 The requirement for registry within six months Is also pre- 
 scribed. 
 
 These grants were in the form of deeds by way of bar- 
 gain and sale, and the provision for registry, or rather en- 
 rollment, was that prescribed for such deeds by the Statute 
 27, Henry VIII., Chapter 16. Operating as it did In the 
 place of livery of seizin, it differed from our registry stat- 
 utes by being requisite to the validity of the deed, which un- 
 less enrolled within the time prescribed became void. The 
 deed, by bargain and sale, having superseded all other forms 
 of conveyance, the provision for enrollment became, by 
 modification, the registry system extending so generally 
 throughout the United States, and this will account for the 
 fact that this country preceded England in the adoption of 
 a general registry of conveyances of land. 
 
 The transfer of property between Individuals was gen- 
 erally made by lease and release, or by deeds of bargain 
 and sale, especially by the first method. By the Act of 
 1760, the wife might waive her dower, otherwise she was 
 not debarred by the conveyance or mortgage of her hus- 
 band. The Act allowing such waivers and the form pre- 
 scribed survives Intact in Section 4204 Park's Annotated 
 Code. By an Act of 1755 all conveyances of realty or per- 
 sonalty were required to be recorded, if executed In Georgia 
 or South Carolina, within three months; if In Europe, with- 
 in a year and a day; and if in the West Indies or any part 
 of America north of South Carolina, within six months. If 
 this was not done, the Instrument was Inferior to younger 
 instruments properly registered. This changed the enroll- 
 
 39 
 
ment necessary to validity of the deed into registry affect- 
 ing only its priority. Wills, unless registered within three 
 months from testator's death, were void, except those made 
 in Europe, for which a year and a day was allowed. By 
 the Act of 1768 all conveyances and mortgages of realty or 
 personalty theretofore made were to be registered within 
 certain times, and all such instruments made in the Province 
 of Georgia, if recorded within ten days after their execu- 
 tion, should be deemed the first mortgage or conveyance 
 over any older one not duly recorded. 
 
 By an Act of 1767, all suits to recover realty must be 
 brought within seven years from the time of the right of 
 entry, or they were barred. Married women, infants, luna- 
 tics and persons beyond seas were excepted and allowed 
 three years after their disabilities were removed. 
 
 A second mortgagee was permitted to redeem the first 
 mortgage. If the first mortgage had not been made known 
 to him in writing by the mortgagor before the second mort- 
 gage was made, the mortgagor forfeited his equity of re- 
 demption. 
 
 No deed of any sort was impeachable for want of form 
 or for want of attornment, livery of seizin or enrollment, or 
 because made by assignment or endorsement on another 
 deed. Such defects could be cured by showing that if the 
 deed had been executed as claimed, the grantor could have 
 conveyed good title. In fact, the Provincial laws seemed 
 aimed at two points: First, to prevent the want of form 
 invalidating where the purpose and right was clear. Sec- 
 ond, to cause a memorial of record of all transfers of lands 
 or chattels to be promptly made, that written notice might 
 exist and fraud be prevented. It was a wise policy, which 
 should have been improved upon and aided, rather than 
 departed from in our later law. 
 
 The common law, except when altered by statute, reg- 
 ulated the character of estates which might be created, their 
 dissolution, transfer and several incidents. 
 
 In 1773 the peace with the Indian tribes was assured, 
 and their title to a large tract of country south of the 
 
 40 
 
Broad river extinguished, by the treaties made at Augusta. 
 Active preparations were made to settle this country, when 
 the advent of the Revolutionary struggle for a time inter- 
 rupted the course of internal development.* 
 
 COLONIAL LEGISLATION 
 
 On January 24th, 1755, the real work of law-making 
 began; evidently with a view of impressing the populace 
 and shutting off discussions as to its power, one of the first 
 acts Imposed penalties upon "any person who shall declare 
 that the Acts of the General Assembly of Georgia are not 
 of force." At this session laws establishing the militia, 
 fixing the rate of interest, preventing fraudulent deeds, 
 and regulating fences, were the first feeble beginnings of 
 that vast and ponderous mass of Statute law since enacted. 
 
 But even after the Colony began to pass laws, there was 
 no one by whom they could be published, so that the pen 
 had to do the w^ork of the press. In 1762 an act was passed 
 "making provisions for printing the laws of this Province 
 and for encouraging a printer to set up a printing-press in 
 the same," the preamble reciting that "whereas the laws 
 have not hitherto been well known, and because printing 
 is the quickest and easiest method of publishing them; 
 and whereas, there has been no printing-press in the Pro- 
 vince, but all public transactions have been published by 
 handwriting." James Johnson was elected Printer of the 
 Laws, at a salary of one hundred pounds per annum, and 
 at once set about collecting the acts which had thus been 
 "published by handwriting" during the preceding seven 
 years. 
 
 He printed them separately, sometimes printing only on 
 one side of the sheet, sometimes on both; and these undated 
 and separate acts were distributed like handbills, and, of 
 course, lost. But at least three persons made partial col- 
 lections of these scattered papers, and bound them with the 
 pamphlets containing the annual session laws published up 
 to 1799. These leaves and pamphlets, thus bound together 
 and preserved, constitute the only existing published rec- 
 
 41 
 
ords and laws passed prior to 1799. Of course the annual 
 pamphlets were very small and insignificant, frequently 
 containing less than a dozen pages; but what they lacked in 
 size they made up in a sounding and grandiloquent title — 
 that of 1762, for instance, reading as follows: 
 
 "ACTS, 
 
 passed by the General Assembly at a session begun and hold- 
 en at Savannah, on Wednesday, the eleventh day of Novem- 
 ber, Anno Dom., 1761, in the year of our sovereign Lord, 
 George the Third, by grace of God, of Great Britain, 
 France and Ireland, King, Defender of the Faith, and so 
 forth; and from thence continued by several adjournments 
 to the 4th day of March, 1762, being the second session of 
 this present Assembly." Savannah. Printed by James 
 Johnson." 
 
 Considering that other colonies had not only published 
 their annual session laws, but, in most instances had made 
 compilations or abridgements of their statutes at large, the 
 utter absence of published statutes for the Colony of Geor- 
 gia is remarkable. It Is more remarkable that, after atten- 
 tion was called to the omission, and a law passed authorizing 
 their publication, nothing was done to correct the evil.'' 
 
 In the colony of Georgia the fee system ran wild. The 
 Act of 1773 for "Settling Fees" covers thirty pages in the 
 "Colonial Acts." We smile at the toy republic of San Ma- 
 rino, with its standing army and its tiny public debt, but the 
 youthful colony of Georgia, with a population smaller than 
 many of its counties today, provided in this Act for fees to 
 the Governor, Secretary, Clerk of Council, Messenger of 
 Council, Doorkeeper of Council, Messenger of the Upper 
 House, Clerk and Messenger of the Common House, Chan- 
 cellor, Master in Chancery, Register in Chancery, Solicitor 
 in Chancery, Chief Justice, Attorney-General, Clerk of the 
 General Court, Clerk of the Crown and Peace, Provost 
 Marshal, Judge of Admiralty, Marshal of Admiralty, Reg- 
 ister of Admiralty, Advocate-General, Public Treasurer, 
 Powder Receiver, Coroner, Comptroller, Notaries, Auditor 
 General, Clerk of the Church of England, Sexton, Crier 
 
 42 
 
of Court, and our old friends the Justices of the Peace and 
 Constables. 
 
 Evidently, like some of our new regiments, which con- 
 sist altogether of majors and colonels, every Inhabitant of 
 the Colony had an office, and some of them must have had 
 two. No matter how insignificant these positions sound, 
 they were decidedly worth having. The Sexton was paid 
 2 shillings for digging a grave and 2 shillings for filling it 
 up, besides i shilling for ringing the bell. The Clerk of 
 the Church got one shilling for attending the funeral, and 
 a like amount for attending every marriage and christening. 
 But these lucrative positions were nothing to that of the 
 Crier. He got a fee for every case that was tried, whether 
 he had anything to do with it or not. He was paid for 
 every Avitness who was sworn, and for every non-suit that 
 was granted, and also for every verdict which was taken, 
 and the long list of emoluments, to which he was entitled, 
 winds up as follows: "From every attorney at the end of 
 each court and sessions, and from the prothonotarles 
 one shilling." This looks very much like a legalized tip.' 
 
 There were many acts passed for the porpose of raising 
 funds for His Majesty, occasionally by Imposing a duty on 
 shipping or fixing fees and dues, but mainly by taxing land 
 under a system which practically remained In force until 
 1840. But It was wholly at variance with our Ideas. The 
 present doctrine is that all taxation should be ad valorem. 
 The early statesman thought exactly the opposite, and 
 taxes were specific. Land was divided into three classes, 
 such as swamp land, pine land, oak and hickory land, and 
 this subdivided into that of the first and second quality; 
 sometimes It was again subdivided into the land between the 
 Florida line and Savannah, between Savannah and Rae's 
 Creek, and between Rae's Creek and the Tennessee line; 
 then it might be again subdivided into land within one mile 
 of the river and land more than a mile from the river. It 
 was taxed so much per acre regardless of Its market value. 
 For example: The state laid a tax of 4 shillings on every 
 100 pounds, and then, relieving the taxpayer's conscience of 
 
 43 
 
the burden of fixing values, the Act proceeded to assess cul- 
 tivated lands at 4 pounds per acre ; pine barrens within three 
 miles of a town at 15 shillings; all good oak and hickory 
 land from the mouth of McRae's Creek to Broad River and 
 within one mile of the Savannah River at 15 shillings. A 
 poll tax of 4 shillings, afterwards 31^ cents on every white 
 person, and 2 shillings on slaves; 9 shillings on every pleas- 
 ure carriage; 50 cents on every lawsuit; i pound on every 
 free negro and the same on every lawyer.^ 
 
 The salary of the Governor was fixed at 1,000 pounds 
 with perquisites amounting to 319 pounds more. The rev- 
 enue applicable to the support of the Provincial Government 
 was raised from the King's quit rents, and by an annual tax 
 on houses, lands, negroes, money at interest, stock in trade, 
 and specified articles." 
 
 Every act of the Colonial Assembly was provisional. It 
 required the royal assent to become a law. Each had a pre- 
 amble stating briefly the necessity for its passage, with the 
 following form of enacting clause : We therefore humbly 
 pray his most sacred Majesty that it may be enacted, and 
 be it enacted by the Governor, Council and Assembly, of 
 this, his Majesty's Province of Georgia, and by the author- 
 ity of the same; That, etc." What favor these humble pe- 
 titions in the enacting clause too often met with is shown 
 by the fact that the very first charge against the King in the 
 Declaration of Independence is that "He has refused his 
 assent to laws most wholesome and necessary for the pub- 
 lic good." 
 
 The Colonial Legislatures had much less confidence in 
 their wisdom than ours. Every law was regarded as more 
 or less an experiment. They were not expected to be per- 
 manent. Each Act, instead of concluding, as ours do, that 
 "laws in conflict are repealed," usually wound up with the 
 provision that "this Act shall continue in force for two 
 years, and from thence to the end of the next session," and 
 occasionally a sort of omniumi-gatherum Act would be pass- 
 ed "for continuing the several laws of this Province which 
 are near expiring," and, instead of making them permanent 
 
 44 
 
even in this sort of Act, concluded by providing "These 
 Acts shall severally and respectively continue and be furth- 
 er in force during the term of one year and thence to the 
 end of the next session." 
 
 This plan may have been resorted to at first for the 
 purpose of having something for the little Assembly to do. 
 For, while the early Legislature had no great subjects with 
 which to deal, it heroically attempted to make up for the 
 deficiency by diversity. It passed separate divorce bills, un- 
 til wearied with the process, wholesale separation was at- 
 tempted, and sometimes as many as twenty-five couples were 
 divorced in one bill. It pardoned criminals; it passed bills 
 to authorize lotteries for raising money to build churches; 
 to establish a library for the University; to build manufac- 
 turing establishments; and one Joseph Rice, of Savannah, 
 was authorized to establish a lottery to raise $10,000, on his 
 representation to the Assembly "that he had in his posession 
 watches and jewelry which he could not dispose of in the 
 regular course of his profession as a watchmaker." 
 
 The General Assembly would pass laws for internal im- 
 provements : for laying out roads; establishing stage lines; 
 taking the census; for selling the glebe lands. It adopted 
 stay laws, and expressed its opinion of public men.^ 
 
 The harshness or leniency of the administration of crimi- 
 nal affairs is the surest index to the condition of a people, 
 and in truth the most surprising features of the early coloni- 
 al life are found in these Criminal Statutes. It is possibly 
 not correct to say in the Criminal Statutes, because very 
 few were enacted. Until 1816, the Criminal Law of 
 England was of force in Georgia almost without a change 
 or amendment. The definition of crimes and all the Crimi- 
 nal Statutes, the methods of procedure and every peculiarity 
 of the English law were rigorously followed. It has been 
 decided that we have no Common Law crimes in Georgia; 
 if so, it must be because the adoption of a Penal Code is 
 construed to repeal all criminal laws not therein contained, 
 for until 18 16 we had absolutely nothing else. 
 
 The rule as to the corruption of blood as a result of 
 
 45 
 
felony must have been recognized. There appears to be 
 no record of forfeiture of property upon conviction of 
 crime, but the provisions of the Act on the subject of 
 "Gouging and Biting" recognize that such forfeiture re- 
 sulted. After reciting that "nothing more forcibly marked 
 the barbarity and ignorance of a country than the savage 
 custom of gouging and biting"; this Act provides that for 
 "the first offence the party convicted should pay a fine, and 
 stand in the Pillory not exceeding two hours; but, if unable 
 to pay a fine, he should receive lOO lashes on his bare back 
 and be set at liberty. For a second offence, he should be 
 deemed a felon, and suffer death without Benefit of Clergy; 
 Provided that said attaint should not extend to corrupt the 
 blood, forfeiture of dower, or the offender's goods and 
 chattels."^ 
 
 If biting and gouging did not "mark the barbarity and 
 ignorance of a country," the punishment prescribed for the 
 offense certainly did. 
 
 In 1793 the punishment for counterfeiting, forging, and 
 horse stealing, was death without benefit of clergy. 
 
 As late as the year 1809 horse-stealing was punished, 
 for the first offense, with thirty-nine lashes on the bare back, 
 and three several days, and on each day a stand in the pil- 
 lory of one hour, and in addition imprisonment for from 
 twenty days to one month. For the second offense, the 
 punishment was death, without benefit of clergy. ^^ 
 
 Existing conditions call for the enactment of laws. It 
 has, therefore, become trite to say that the history of a 
 people may be written from an examination of its laws. 
 Even if the historian had said nothing upon the subject, we 
 would be able to draw a picture of the dangers and unrest 
 of the population from the frequent laws for the regula- 
 tion of the militia, establishment of powder magazines, and 
 what appears on the subject of weapons. One-third of the 
 time of our courts is today taken up in punishing men for 
 carrying and using weapons. Time changes, — in 1766 it 
 was enacted that "if any male person should attend church 
 
 46 
 
without carrying with him a gun or a pair of pistols in good 
 order and fit for service, with at least six charges of powder 
 and ball, or shall fail to take such gun or pistol with him to 
 his pew or seat, he shall be fined ten shillings." (Watkins, 
 
 I57-) 
 
 Judging from the statutes, we would infer that bear- 
 baiting and bull-baiting were not infrequent; that deer- hunt- 
 ing in the night was a euphuism for cattle-stealing (Coloni- 
 al Acts of Ga., 258), and that the oppressor of the poor 
 had already made his appearance, since it was necessary to 
 make an assize of bread. The four-penny loaf was to 
 weigh three pounds, if flour sold at ten shillings. If flour 
 was twenty shillings, the loaf was to weigh one pound five 
 ounces, and so on, the price varying both according to the 
 price of flour and the quality of bread. The Act then 
 elaborately provided methods to prevent the fraudulent 
 adulteration of flour. It allowed a Justice of the Peace to 
 enter a bake-shop, search for and weigh bread, and if he 
 found any under assize to confiscate It to the use of the poor 
 of the parish. 
 
 Oglethorpe had founded this colony in the interest of 
 those who had not been able to pay their debts In England, 
 but a change of climate does not seem to have effected a 
 change of habit, or possibly it may have been with them as 
 it is now — and was with the wicked servant who, discharged 
 from liability himself, took his own debtor by the throat, 
 saying, "pay me that thou owest." At any rate, the Digest 
 (Watkins) bristles with Acts providing for the payment 
 of small debts, for the support of those imprisoned for debt, 
 and with others making it penal for the owners of ships to 
 carry off debtors in their vessels. From the frequency with 
 which this latter Act appears one would suppose that the 
 poor debtor, having left England to escape those whom he 
 owed there, no sooner landed in the new colony than he 
 found it expedient to put back again to elude his American 
 creditors. 
 
 There is one still more curious law on this subject of 
 debts. In 1766 it was enacted that "if any person should 
 
 47 
 
give credit to or trust any seaman for any sum exceeding 
 five shillings, he, she or they so giving credit to or trusting 
 such seamen shall for every offense lose the money or goods 
 so credited or trusted." We do things better now, for we 
 manage "to lose the money or goods so trusted" without the 
 assistance of the Legislature,^ 
 
 When we read of the horrors of the debtor's prison, we 
 sicken at the thought that such things ever could have been. 
 And yet there was a time when imprisonment for debt, with 
 all its English rigor, prevailed in the colony of Georgia. In 
 the year 1766, a measure of alleviation was adopted, when 
 an act was passed for the relief of debtors who might be 
 confined in jail and were unable to support themselves dur- 
 ing their confinement. By it the debtor was allowed, on 
 petition to the court and notice to creditors, to surrender 
 whatever property he might have and take a prescribed oath. 
 If the creditor insisted on his being detained, and agreed to 
 pay a named sum for his support, the debtor was not dis- 
 charged; If the creditor refused to make the agreement, 
 the debtor was to be discharged. But the act did not apply 
 if the debtor's trade or occupation could be carried on, and 
 he could find employment, within the jail, by which to earn 
 a subsistence. 
 
 By the act of 1762 all persons were compelled to attend 
 divine worship, and the third division of the Penal Code of 
 1 8 16, consisted of "Crimes against God." They were de- 
 fined to be "Denying His existence, or a future state of re- 
 wards and punishments," and they were punished with being 
 incapacitated to give testimony in a court of justice, or of 
 serving in any office of honor, profit or trust In this State. 
 In the present Code there is no trace of the fetters that 
 bound the minds of men for centuries; there is no trace of 
 the pillory, the lash, the bare back; nor is there a place 
 in it for mention of the debtor's prison. We have grown 
 away from those darksome things and they exist now only 
 as a burthen upon the memory. 
 
 It is only fair to remember that the cruel severity of 
 these laws and customs was the high-water mark of the 
 
 48 
 
condition of the people in all departments of thought and 
 life. The doctors were tapping the fountain of life with 
 leech and lancet; the theologians stood just behind them 
 with a salvation chance fixed at about one-half of one per 
 cent; the reaper and binder, the sewing-machine, and even 
 the patent churn, were unheard of. As to the railroad, it 
 seemed but a dream of the possible, as will appear by the 
 following facts : 
 
 In the year 1800 the sole and exclusive right of running 
 a line of stage-carriages for the conveyance of passenges 
 and their baggage between the city of Savannah and the 
 town of Augusta was vested by legislative grant in three 
 persons. The right comprehended all the different routes, 
 and the grantees were required to run the stage-carriages at 
 least once every week between the two places. ^^ 
 
 Of course, there were many laws on the subject of in- 
 spection of tobacco and indigo, but there is only a reference 
 to "Cotton" until the year 1803, when a most curious 
 statute was passed. There is a current saying that exclusive 
 of its fiber cotton is worth cultivation for its by-products 
 alone. The cotton-seed-oil was used for man, but the hulls 
 and meal are now regarded as the very best food known 
 for cattle, and with what was once a refuse the cattle on a 
 thousand hills may be made seal fat. Yet, in 1803, the 
 Legislature passed "An Act to compel the owners of cotton 
 machines to enclose the same, and in Particular Situations, 
 to remove the seeds therefrom." The "gin" was then gen- 
 erally called a "cotton machine," and it was provided that 
 where such "cotton machines" were located in a town, the 
 owner should enclose the seed in such manner as would effec- 
 tually prevent all stock from eating thereof. The owner 
 was also required to secure and keep the seed dry, and to re- 
 move them at least once a week, so as to prevent all un- 
 wholesome effects resulting therefrom, and from the stench 
 and vapors arising from the seed in a putrid state, and 
 further must enclose them in such a "manner as to prevent 
 the neighbors' stock from feeding thereon." Speedy reme- 
 
 49 
 
dies were provided for collecting the penalty, and the Justice 
 of the Peace himself was subject to be fined if he neglected 
 to enforce this law. This Act has never been repealed, 
 except by the "Act of Dry Rot." But who can say how 
 many millions upon millions have been lost and destroyed in 
 the throwing away of the by-products of the cotton plant. ^ 
 
 THE BEGINNING OF THE CONFLICT 
 
 The formula of the American Revolution was that there 
 should be no taxation without representation. In December, 
 1768, the Commons House of Assembly of the Province of 
 Georgia passed a resolution expressing adherence to this 
 theory of taxation in a resolution wherein they said: 
 
 "At the same time, with inexpressible concern, we much 
 lament that by the imposition of internal taxes, we are de- 
 prived of the privileges, which, with humble deference, 
 we apprehend to be our indubitable right, that of granting 
 away our own property, and are thereby prevented from 
 a ready compliance with any requisition which your Majesty 
 may please to make, and which, to the utmost of our small 
 abilities, we have hitherto most cheerfully obeyed." 
 
 In I7<69, the colony of Georgia gave striking expression 
 to this theory of the right of taxation by refusing to levy a 
 tax upon the four parishes between the Altamaha and the 
 St. Mary's acquired in consequence of the Treaty of Paris 
 at the close of the French and Indian war, upon the ground 
 that these parishes were without representation in the Colo- 
 nial Assembly, resolving: 
 
 "That, under the circumstances, unless your Excellency 
 coincides with us, we dare not impose a general tax, knowing 
 with what abhorrence every member of our community holds 
 the idea of a partial representation."" 
 
 How the subject of taxation has shaped the destiny of 
 our Country, every student of history knows. Indeed "Tax- 
 ation without representation," was one of the prime causes 
 that brought about the American Revolution. The flame 
 kindled by the Stamp Act of the British Pariament was soon 
 fanned into that Revolution, which finally resulted in our 
 
 50 
 
independence and the establishment of the Government of 
 the United States. 
 
 A very interesting account of the arrival of the first 
 stamps issued under that Act in Georgia is given by Mr. 
 McElreath in his admirable work on the Constitution of 
 Georgia, as follows : 
 
 "When the stamps arrived (at Savannah), there were 
 in the port between sixty and seventy vessels, waiting for 
 clearance, which could not be obtained on account of the 
 refusal of the people of the colony to allow the use of the 
 stamps necessary to give validity to their clearance papers. 
 But the necessity for clearing the port seemed so urgent that 
 the people finally consented to allow the use of the stamps for 
 this purpose, but for none other. Their use, even for this 
 purpose, was greatly resented by the people of South Caro- 
 lina. Georgia was condemned as a 'Pensioned Government,' 
 which had 'sold her birthright for a mess of pottage, and 
 whose inhabitants should be treated as slaves without cere- 
 mony.' It was resolved that no provisions should be 
 shipped to 'that infamous colony,' that every vessel trading 
 there should be burnt; 'that whosoever should traffic with 
 them should be put to death.' These inflammatory words 
 were not an exaggeration of the feeling of the people of 
 South Carolina, for two vessels, about to sail from Charles- 
 ton to Savannah, were captured and taken back into port 
 and destroyed with their cargoes."^* 
 
 Benjamin Franklin, 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 lOO 
 pounds and as an expression of the appreciation of his ser- 
 vices the State afterwards made him a grant to the land to 
 which he refers in his will. 
 
 Just before the Revolution the Attorney-General of the 
 Province applied for Writs of Assistance. The record is 
 most interesting: 
 
 51 
 
"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 hundred 
 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 fol- 
 lows; viz. his honor Mr. Justice Butler, that as he appre- 
 hended there was not an occasion for them at present, he 
 was of opinion that the same should not be granted, not 
 until there was a necessity 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 
 (Stokes) was of opinion, that the said writs of Assistants 
 should be granted." 
 
 While Chief Justice Stokes was presiding at Savannah, 
 the Georgia Provincial 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.® 
 
 In the proceedings of the Council of Safety just prior 
 to the Revolution, appears a resolution reciting that it was 
 rumored that all attorneys who sympathized with the pro- 
 ceedings of the late Congress had been stricken from the roll 
 by the Chief Justice, and a committee was appointed to ascer- 
 tain whether or not the rumor was well founded. Investiga- 
 
 52 
 
tion demonstrated that the rumor was without foundation.^* 
 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 John Wereat, 
 who himself subsequently held the office of Chief Justice 
 of the State. It was indorsed by Gov. Archibald Bulloch 
 and acted as a "safe conduct." 
 
 "I am sorry," he wrote, "that this Province is deprived 
 of so upright a magistrate as our late Chief Justice and sin- 
 cerely wish you health, peace and freedom; for the last of 
 which America is contending and will contend at every 
 hazard." 
 
 After Stokes' 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 the Government 
 
 Some Copies of which are printed for the Information 
 
 of his Friends. 
 
 London, 1784. 
 
 It gives the British view of the situation in Georgia, and 
 
 also many side lights on legal affairs during the exciting 
 
 years between the Stamp Act and the Revolution. 
 
 In that intermediate period between the repudiation of 
 
 53 
 
British authority and the organization of the new Govern- 
 ment, the exact legal status of Georgia was a matter of dis- 
 pute. It was sometimes referred to as a Province and some- 
 times as a State, and there was a doubt as to whether Indict- 
 ments should still run in the name of the King, as under the 
 Trustees the question had been whether Bail Bonds should 
 be to them or to the King. (4 C. R. 88.) 
 
 William Stephens had been elected as Attorney General, 
 May I, 1776, with a salary of 25 pounds (Rev. Rec. 119, 
 227), and Gov. Bulloch referred this question to him. As 
 it is the first legal opinion of a Georgia lawyer, it may be 
 stated that he gave it as his opinion that the following 
 would be proper: 
 
 "The grand jurors of the body of the Province of 
 Georgia, upon their oaths, present," etc., and concluding 
 "against the peace of the Province and the welfare of the 
 inhabitants thereof." ( Charlton's Life of James Jackson 8. ) •^ 
 
 THE CONSTITUTION OF 1 777 
 
 Because even the boldest hesitated to cut the bonds, 
 and set up a new government, the colonies, prior to the 
 Declaration of Independence, were governed by temporary 
 Assemblies, and Committees of Safety, born of the neces- 
 sity of those troublesome times. 
 
 Indeed, in Georgia, the President and Council of Safety 
 remained in power until the State organized under the Con- 
 stitution of 1777.^*' 
 
 The first constitutional convention of Georgia met in 
 Savannah on the first Tuesday in October, 1776. The 
 constitution known as the Constitution of 1777, was finally 
 adopted and promulgated on February 5, 1777.^' 
 
 This convention of the people of Georgia was composed 
 of delegates from thirteen parishes and the towns of Savan- 
 nah and Sunbury. This was the first regular Constitution 
 for the State of Georgia, for the form of government 
 adopted by the Provincial Congress in the year preceding 
 could not properly be called a Constitution — it was merely 
 
 54 
 
a military government, improvised to meet the emergency 
 of the times. ^^ 
 
 This Constitution began with certain whereases which 
 were followed with this statement: "We, therefore, the 
 representatives of the people, from whom all power origi- 
 nates, and for whose benefit all government is intended, by 
 virtue of the power delegated to us, do ordain and declare, 
 and It is hereby ordained and declared, that the following 
 rules and regulations be adopted for the future government 
 of this State. "i'' 
 
 There was no separate article embracing an enumera- 
 tion of principles, called In modern Constitutions "the bill 
 of rights." Four brief sections In It constitute the declara- 
 tion of "fundamental principles." They are as follows: 
 
 "Excessive bail shall not be demanded, nor excessive 
 fines imposed. The principles of the Habeas Corpus Act 
 shall be a part of this Constitution. Freedom of the press 
 and trial by jury shall forever remain Inviolate. No clergy- 
 man of any denomination shall be allowed a scat In the 
 legislature."^* 
 
 The Constitution followed that of Virginia in adopting 
 the new maxim of free government: 
 
 "The legislative, executive and judiciary departments 
 shall be separate and distinct, so that neither shall exercise 
 the power properly belonging to the other." 
 
 This great maxim of free government, a bulwark of 
 human liberty, although clearly stated, was not closely fol- 
 lowed In the Constitution Itself.^" 
 
 The General Assembly, called the "House of Assembly," 
 was a single body, composed of members elected yearly from 
 each county. From this single body was elected an Executive 
 Council to aid the House of Assembly In reviewing legisla- 
 tion before its final passage, and proposing amendments to 
 the same. While the Executive Council had no right to vote 
 in the House of Assembly, It had the right, by a Committee 
 from Its body, to be present covered, (the members of the 
 House, except the Speaker being uncoverd) and to discuss 
 
 55 
 
in the House amendments to legislation proposed by the 
 executive council.^® 
 
 Article 7 provides that "The House of Assembly shall 
 have power to make such laws and regulations as may be con- 
 ducive to the good order and well-being of the State; pro- 
 vided such laws and regulations be not repugnant to the true 
 intent and meaning of any rule or regulation contained in the 
 Constitution." Thus in the beginning of constitutioal gov- 
 ernment, as now, the power of the legislature to enact laws 
 was limited by the terms of the Constitution, and the power 
 to make them was also limited to those specifically chosen for 
 that purpose.^^ 
 
 The electors were restricted to "all male white inhabi- 
 tants, of the age of 21 years, and possessed in his own right 
 of property of ten pounds value, and liable to tax in the 
 State or being of any mechanical trade." 
 
 Those eligibld( as representatives should "be of the 
 Protestant religion, and of the age of 21 years, and shall 
 be possessed in their own right of two hundred and fifty 
 acres of land, or some property of the amount of two 
 hundred and fifty pounds-" 
 
 The restriction as to the Protestant faith was unworthy 
 of the men who framed the Constitution, and is inexplicable 
 in the light of Sec 41. 
 
 "All persons Vv^hatever shall have the free exercise of 
 their religion; provided it is not repugnant to the peace 
 and safety of the State; and shall not, unless by consent, 
 support any teacher except those of their own profession."^" 
 
 The Executive Department consisted of a Governor and 
 Council, both elected annually by the House of Assembly. 
 The Council was selected from the members of the House 
 of Assembly. The power of the Governor was very limited; 
 he could not pardon any offence, could simply grant re- 
 prieves; he could not veto any bill passed by the House. '^ 
 
 This instrument created a judicial system composed of 
 a Superior Court, a Court of Conscience, and a Court 
 Merchant. 
 
 56 
 
The Superior Court was held twice a year in each county, 
 and had jurisdiction of all causes whatsoever, unless other- 
 wise provided in the Constitution, and consisted of the 
 Chief Justice, and three or more Justices residing in the 
 county. It had jurisdiction not only in cases at law and in 
 equity, and criminal cases, but as well in all matters usually 
 within the jurisdiction of a Probate Court or Court of 
 Ordinary. (Watkins' Digest, p. 13) 
 
 The Court Merchant was brought over from the days 
 of the Colony, having jurisdiction in cases between mer- 
 chants, dealers, and others on the one hand, and shipmasters, 
 super-cargoes, and other transients on the other, the juris- 
 diction being unlimited as to the amount, and the Court be- 
 ing held by the Chief Justice, or in his absence, one of the 
 Justices of the county. The proceedings were summary, 
 cases being tried after seven days' notice.^" 
 
 In America, general jurisdiction was conferred upon the 
 Justices of the Peace first in criminal cases. In the colony 
 of Georgia in 1760, an act was passed for a more speedy 
 recovery of small debts, and damages, thus making Justices 
 of the Peace Judges of "small debt courts," as well as con- 
 servators of the peace- The rule of decision in these courts 
 was according to equity and good conscience and the courts 
 were called "Courts of Conscience." In 1762 the Act of 
 1760 was explained and amended and the Constitution of 
 1777 declared "that the Court of Conscience shall be con- 
 tinued as heretofore practiced and that the jurisdiction 
 thereof be extended to try cases not amounting to more 
 than ten pounds."-^ 
 
 Jurors attended the Superior Court, from whose de- 
 cisions in civil cases an appeal was allowed to a special jury. 
 There was no other provision for a new trial than by this 
 single appeal to a special jury.^* 
 
 Jurors in all cases, both civil and criminal, were made 
 "judges of law as well as of fact," and to secure to them 
 the full and free exercise of this high prerogative, no special 
 verdict was allowed to be brought in; but if all or any of 
 
 57 
 
them had doubt concerning points of law, they were at 
 liberty to apply to the Bench, then composed of the Chief 
 Justice and three or more county Justices, each of whom, 
 in rotation, was required to give his opinion. This Con- 
 stitution provided for both petit and special juries. The 
 former were sworn "to bring in a verdict" according to law, 
 and the opinion they entertained of the evidence, "provided 
 it was not repugnant to the rules and regulations contained 
 in the Constitution," and the latter were sworn to return a 
 verdict according to law, and the opinion they entertained 
 of the evidence, provided it be not repugnant to justice, 
 equity and conscience and the rules and regulations of the 
 Constitution, of which they were to be the judges. ^"^ 
 
 The provisions of this Constitution as to the venue of 
 civil and criminal cases have been followed in all of the 
 Constitutions of the State. Defendants in civil cases were 
 to be sued in the county of their residence- Contests respect- 
 ing real estate were to be tried where the real estate was 
 situated, and criminal offences In the county where com- 
 mitted.^^ 
 
 The Constitution of 1777 formed the twelve Parishes 
 of the Province into the six oldest counties of the present 
 State, the distribution being as follows : 
 
 Christ Church and St. Phillip's South of Canouchee, 
 became Chatham county; St. Matthew's and the rest of St. 
 Phillip's became Effingham; St. George's Parish became 
 Burke; St. Paul's became Richmond; St. John's, St. An- 
 drew's and St. James' became Liberty; St. David's and St. 
 Patrick's became Glynn; St- Thomas' and St. Mary's be- 
 came Camden, while the ceded lands North of Ogeechee 
 formed the seventh county, Wilkes.* 
 
 The Constitution took from the courts the power of 
 admitting or disbarring attorneys and provided that "no 
 person shall be allowed to plead in the courts of law in this 
 State, except those who are authorized so to do by the 
 House of Assembly, and if any person so authorized shall 
 be found guilty of malpractice, before the House of Assem- 
 
 58 
 
bly, they shall have power to suspend them. This Is not 
 intended to exclude any person from that inherent privilege 
 of every Freeman — the liberty to plead his own cause." 
 
 This w^as so strictly construed that when Gen. Mcintosh 
 employed noted and distinguished non-resident counsel it 
 was thought they could not represent him without authority 
 of the House of Assembly, which thereupon passed a resolu- 
 tion "granting leave for Charles Cottesworth Pinkney, 
 Thomas Pinkney and Edward Rutledge, Esquires, to be 
 admitted to plead at any Court of justice in this State, so 
 far as relates to any cause General Mcintosh may be en- 
 gaged in or have occasion to commence." (3 Rev. Rec. 300)" 
 
 In this first Constitution no limitation was laid upon 
 the exercise of the taxing power of the legislature, the only 
 provision in the nature of a limitation being the directory 
 provision that schools should be provided in each county 
 and supported at the general expense of the State, ^^ 
 
 The provision in reference to amendment in this con- 
 stitution was as follows : 
 
 "No alteration shall be made in this constitution with- 
 out petitions from a majority of the counties, and the peti- 
 tion from each county to be signed by a majority of the 
 voters in each county within this State; at which time the 
 Assembly shall order a convention to be called for that 
 purpose, specifying the alterations to be made, according 
 to the petitions preferred to the Assembly by the majority 
 of the counties as aforesaid."^' 
 
 This provision is the first instance of the much discussed 
 modern right of the initiative by the people in the consti- 
 tution of any American State. ''^^ 
 
 No amendments were ever made to this Constitution.^' 
 
 This first Constitution shows that it was made by a 
 people recently released from the control of a strong govern- 
 ment, wild with the spirit of freedom, confident in their 
 capacity to make laws for themselves and determine their 
 meaning and application, unrestricted by vetoes of Gover- 
 nors or opinions of Judges-^* 
 
 59 
 
Entails and primogeniture were abolished, yet the repub- 
 licanism of these early constitutions was only skin deep. 
 There was a strange medley of new democracy and respect 
 for old forms. Voters were each required to be possessed 
 of ten pounds in his own right, and were subject to a penalty 
 not exceeding five pounds for a failure to vote. The repre- 
 sentatives were to be of the Protestant religion, own 250 
 acres of land, or be possessed of 250 pounds of property, 
 and be able to swear that they had obtained their election 
 without fraud or bribery. While titles of nobility dis- 
 qualified a person from holding any office until he should 
 give up such distinction, when he should be entitled to vote 
 and hold office and enjoy the benefits of a free citizen, still, 
 the same Constitution was very particular to provide that 
 the title of Governor should be "Honourable," and to 
 arrange all of the details by which communication between 
 the Honourable Governor and the House should take place 
 through the intervention of an intermediary council.^ 
 
 While the Constitution of 1777 was and has remained 
 the foundation of Georgia's constitutional policy, nothing 
 is known of the men who made it; its journal is lost, and 
 the men who made it have been forgotten. 
 
 It was made in pursuance of the recommendation of the 
 Continental Congress, as a step to throw off the oppression 
 of Great Britain; and as an assertion of rights and privileges 
 under the law of nature and reason. 
 
 It had its birth in a time of great trial, in the very 
 presence of Tories and Royalists, with English sailors and 
 soldiers on the one hand, and Indian savages on the other. 
 
 Georgia was the weakest of the Colonies; was largely an 
 unexplored wilderness; with only seven counties, fringing 
 the coast, and the bank of the Savannah River. It had not 
 been half a century since Oglethorpe presided at her birth. 
 
 The adoption of this Constitution meant conflict 
 between Georgia, the weakest of the Colonies, and the most 
 powerful nation of the earth. It was an inspired acclama- 
 tion of freedom, and a challenge to tyranny. Its makers, 
 
 60 
 
although their names have been forgotten, were brave men. 
 With tyranny seeking to throttle them, and with the hang- 
 man's noose ever in sight, they patiently worked out a sys- 
 tem of local self-government that proclaimed a new and 
 better freedom, and hastened the destruction of English 
 power in the New World. 
 
 This was no task for the faint hearted. They were 
 patient, courageous, iron-willed men, to whom we owe a 
 debt of gratitude yet unpaid.^* 
 
 By the General Assembly the Governor's salary was 
 fixed at 500 pounds, and that of the Chief Justice at 300 
 pounds. In the distracted and impoverished condition of 
 the feeble Commonwealth, then in the throes of a mighty 
 revolution, it was contemplated that the salaries of these 
 officers should be paid in sterling money or its equivalent. 
 The purchasing power of good money, as contrasted with 
 that of the paper currency issued upon the faith of the 
 State, became, during the progress of the struggle, so great 
 that one dollar of the former was reckoned as the equiva- 
 lent of fifteen hundred of the latter. The Courts too were 
 soon practically closed. Silent leges inter anna. Spasmodic 
 and partial was the effort to collect taxes. The Government 
 itself was peripatetic, and the proceedings of the Executive 
 Council, charged with the administration of State affairs, 
 consisted of little more than insignificant orders, brief com- 
 munications, meager journals of convocations, deliberations, 
 adjournments and removals, and scanty memoranda of ef- 
 forts to promote the public safety." So desperate was the 
 situation at the close of the war, that Governor John Martin 
 had to appeal to the Legislature to make special provision 
 for his family to keep them from starving-* 
 
 THE REVOLUTION 
 
 The Bar Association historians have not attempted to 
 write for us a connected history of the Revolution. This 
 could not have been expected, but from the "thumb-nail" 
 sketches of the lawyer-soldiers of the period we may get a 
 
 (51 
 
tolerable picture of the time, and some familiarity with the 
 dominant figures of Eighteenth Century Georgia. 
 
 Mr. Justice Miller, in Garland's case, (4 Wall. 333) 
 said that lawyers "are by the nature of their duties the 
 moulders of public sentiment on questions of government." 
 So it undoubtedly was in the days of the Revolution. To 
 write the lives of Otis and Adams of Massachusetts, of 
 Henry and Jefferson of Virginia, is to write the history of 
 the period. And our own State's history, from the time 
 when she made common cause with her sister colonies in 
 resisting oppression till she took her place in the Union 
 under the Constitution, may be best studied in the lives of 
 Archibald Bulloch, George Walton and James Jackson, all 
 members of the Georgia Bar. 
 
 It was Bulloch who planted the Liberty Pole, organized 
 the Council of Safety, and headed the Liberty Boys; who 
 was President of the first Provincial Congress which assem- 
 bled at Tondee's Tavern; who led the party that burned 
 every house on Tybee Island to prevent its use by the 
 British seamen from the men-of-war anchored in the roads; 
 who first read the Declaration of Independence to the 
 assembled townspeople in Savannah; who became the first 
 Provisional President of Georgia and commander-in-chief 
 of the military forces; but who was cut off ere the conflict 
 of arms had fairly begun. White in his "Statistics of Geor- 
 gia" concludes his biography of Bulloch thus: "Georgians! 
 Let the memory of Archibald Bulloch live in your breasts! 
 Tell your children of him, and let their children tell another 
 generation!" Right worthily have the descendants of the 
 old patriot borne themselves. His son. Major Wm B. 
 Bulloch, U. S. Senator, is mentioned in connection with the 
 War of 1 8 12. Two grandsons were officers in the Confed- 
 erate Navy, one of them fitted out the "Alabama." His 
 great-grandson, ex-President Roosevelt, was Lieutenant 
 Colonel of the Rough Riders in the war with Spain, and 
 Colonel Roosevelt's four sons were all ofllicers engaged in 
 active service in France. Lieutenant Quentin Roosevelt, of 
 
 62 
 
the Aviation Corps, met death gloriously near the old 
 French city of the same name. One of the first officers of 
 the American Expeditionary Force, engaged in service over- 
 seas, wounded in defense of liberty, was Captain Archie 
 Roosevelt, the namesake and lineal descendant of this ster- 
 ling old patriot. 
 
 Walton, the Secretary of the Provincial Congress and 
 one of the three immortals who signed the Declaration of 
 Independence on behalf of Georgia, was a Lieutenant 
 Colonel of the Continental Line. He was wounded and 
 captured in the fighting around Savannah, where he served 
 with conspicuous gallantry. After the war he filled with 
 ability and most acceptably the high offices of Governor for 
 two terms, United States Senator and Representative in six 
 Congresses, was twice Chief Justice, and after that office 
 was abolished by the new Constitution, was for fifteen years 
 Judge of the Superior Court. 
 
 Georgia should have had four signers of the Declara- 
 tion instead of three. But John Houston, son of Sir Patrick, 
 who was a member of the Continental Congress was com- 
 pelled to return to Georgia to combat the intrigue of the 
 Rev. Dr. Zubly, who had turned royalist, and so was absent 
 when the great charter of liberty was signed. He had been 
 a conspicuous member of the first Provincial Congress. As 
 Governor and commander-in-chief of the militia, Houston 
 headed an expedition for the invasion of Florida, then 
 owned by England and from which Georgia was constantly 
 menaced. But disagreement arising among the officers, the 
 enterprise was abandoned. He, too, became Chief Justice 
 of Georgia, and afterward Judge of the Superior Court. 
 
 Two other lawyers were members of the first Provincial 
 Congress, John Glen and William Ewen. Both were mem- 
 bers of the Council of Safety, Ewen for some time its Presi- 
 dent, and active participants in the stirring events of the 
 times. Glen was elected the first Chief Justice of the State 
 and later became Judge of the Superior Court. 
 
 63 
 
White, in his "Historical Collections," says of Ewen: 
 "He was among the first of that immortal band who took 
 up arms in defense of American liberty." But no record 
 of active military service of either Ewen or Glen has been 
 preserved. 
 
 One of the early escapades of the war was the break- 
 ing open of His Majesty's magazine and the seizure of the 
 powder stored therein and so much needed by the patriots. 
 Some of this powder was sent to the army, then encamped 
 in the vicinity of Boston, and was used in the Battle of 
 Bunker Hill. Two of the leading spirits in this adventure 
 were young limbs of the law, William Gibbons and John 
 Milledge. Gibbons, after the war, was rated by General 
 Jackson as the foremost lawyer in the State, enjoying an 
 income of three thousand pounds per annum. 
 
 John Milledge fought in defense of Savannah; when the 
 city fell, fled with James Jackson into South Carolina, where 
 they barely escaped being shot as Tory spies; returned to 
 Georgia, and participated in the siege and assault upon 
 Savannah, and in other campaigns. He became Governor 
 of Georgia and presented to the State the campus upon 
 which was erected the buildings of Franklin College, now 
 the University. 
 
 Another of the powder magazine party was that 
 staunch Scotch patriot, Edward Telfair, one of the Assis- 
 tant Justices for the County of Burke. He was a Son of 
 Liberty, a member of the Council of Safety, of the Continen- 
 tal Congress and of the Congress of the United States, and 
 succeeded George Walton as Governor. 
 
 John Adam Treutlen, the first Governor of the State, 
 and one of the most active of the early patriots, was also 
 an Assistant Justice. 
 
 Captain Benjamin Taliaferro, of the Continental Line, 
 who was engaged in the New Jersey campaign and after- 
 ward saw service under Morgan in the South, and was 
 captured at Charleston, was elected to an oflice for which 
 legal training is usually considered requisite. Though not 
 
 64 
 
a lawyer, the Legislature, after the war, honored him with 
 the commission of Judge of the Superior Courts of the 
 Western Circuit, which position he seems to have filled with 
 entire satisfaction. He was also a member of Congress. 
 
 Both of Georgia's delegates to the Constitutional Con- 
 vention of 1787, whose names are appended to the Federal 
 Constitution, were lawyers and both were soldiers. William 
 Few, Jr., was a Lieutenant Colonel of Richmond County 
 Militia, and participated in the almost daily skirmishes 
 and forays about Augusta. His father, William Few, was 
 a Colonel, and his brother, Ignatius, a Captain of the Conti- 
 nental Line. He was one of our first Senators, a member of 
 Congress, and, like so many other of Georgia's great men, 
 a Judge of the Superior Court. 
 
 Connecticut gave to Georgia two of the most illustrious 
 citizens of this early time — Dr. Lyman Hall, a signer of 
 the Declaration of Independence, and Abraham Baldwin, 
 who, with Colonel Few, signed the Constitution of the 
 United States on behalf of Georgia. Educated for the 
 ministry, Baldwin was a Chaplain in the Continental Army. 
 Moving to Georgia at the close of the war, he represented 
 the State in the first four Congresses and afterwards as 
 Senator. As the father of the University of Georgia, he is 
 gratefully remembered by all Georgians. 
 
 From first to last, Georgia was represented in the Conti- 
 nental Congress by twenty-five delegates, of whom ten were 
 lawyers and three Associate or Assistant Justices of the 
 Superior Courts. When Governor Wright's Royalist Assem- 
 bly met in Savannah in July, 1780, seventeen of these dele- 
 gates were attainted for high treason and their estates for- 
 feited. The number included six of the lawyers and all three 
 of the Associate Justices. Of these lawyer delegates, men- 
 tion has already been made of Baldwin, Bulloch, Few, Gib- 
 bons, John Houston and George Walton, and of Justice 
 Telfair. The other two Justices were Benjamin Andrew, 
 President of the Council of Safety, and grandfather of 
 Bishop James O. Andrew, of the Methodist Church; and 
 
 65 
 
Edward Longworthy, who wrote the first history of Georgia, 
 the manuscript of which unfortunately was lost before it 
 was printed. 
 
 The other lawyers were: James Gunn, a Captain of 
 Dragoons during the war, and afterwards Brigadier Gen- 
 eral of Militia, He was one of Georgia's first Congress- 
 men, and then United States Senator, but his name will 
 ever be associated with the notorious "Yazoo Fraud:" 
 
 Lieutenant Colonel Samuel Stirk, who accompanied 
 President Button Gwinnett on his ill-starred Florida expe- 
 dition, was Clerk of the Executive Council under John Adam 
 Treutlen, the first governor, and later served as Attorney 
 General: 
 
 Richard Howley, who had the unique distinction of 
 holding the two high offices of Governor and Congressman 
 at the same time. As a side light on the times, it is inter- 
 est to know that Georgia currency had depreciated to such 
 an extent that the Governor's expenses to Philadelphia, 
 where he went to take his seat in Congress, cost the State 
 half a million dollars. Howley also served a term as Attor- 
 ney General: 
 
 William Houston, a brother of John, who was twice 
 elected to the Continental Congress, was also a delegate to 
 the Constitutional Convention of 1787, but declined to sign 
 the Constitution. Of only one military event in his life do 
 we have an account. While a member of Congress, a dele- 
 gate from Rhode Island made some remarks reflecting on 
 the South. The next morning Houston appeared in Con- 
 gress armed with a sword. Friends intervened, however, 
 and a promising military career was cut short. 
 
 One of the greatest names in Georgia history was the 
 soldier-lawyer, James Jackson. But nineteen when the war 
 broke out, he was a volunteer for the very first military 
 enterprise, the capture of the rice-laden ships in Tybee roads. 
 As Lieutenant, Major, and Lieutenant Colonel, he was en- 
 gaged in practically every battle fought on Georgia soil. 
 He was wounded at Midway, where General Screven was 
 
 66 
 
slain. He assisted in the defense of Savannah. He dis- 
 played the utmost gallantry at Kettle Creek. By General 
 Greene's authority he raised a mixed legion of infantry and 
 cavalry, which joined the French and American forces at 
 the siege of Savannah, where his name will ever be linked 
 with those of Pulaski, Jasper, Habersham, Mcintosh and 
 D'Estaing. When Georgia was completely overrun by the 
 British and Tories, he crossed over into South Carolina, and 
 at the Battle of Cowpens again distinguished himself for 
 bravery and skill. He performed valiant service at the 
 siege and capture of Augusta. He was with "Mad Anthony" 
 Wayne operating before Savannah when the British at last 
 evacuated the place, and in token of his distinguished ser- 
 vices he was appointed to receive the keys of the city. After 
 the war he became a Brigadier, then Major General of 
 Militia. His military record, conspicuous and brilliant as 
 it was, is lost sight of in the great service rendered his 
 State in times of peace. As he fought in every battle, so 
 he held every office in the gift of the people. Congressman, 
 Governor,* Member of the Constitutional Convention of 
 1798, United States Senator, which last office he resigned 
 to attack in the Georgia Legislature the iniquitous "Yazoo 
 Fraud." 
 
 This record would not be complete without mention of 
 the redoubtable Colonel John Dooly. His activities in 
 upper Georgia at the time when the State was in complete 
 control of the British did much to keep alive the fires of 
 liberty and woni for him the title of "The Terror of the 
 Tories." While he did much to check the atrocities of the 
 Tories, he at last fell a victim of their hatred, being foully 
 murdered in his own home. Whether Colonel Dooly ever 
 read law, the record does not disclose, but he was appoint- 
 ed Attorney General to represent the State at the first 
 Court of "General Sessions or Oier and Terminer and Gen- 
 eral Goal Delivery," holden in and for the County of 
 
 *Shortly after the war General Jackson was elected Governor but 
 declined to serve on account of his youth and inexperience. In later 
 life he was again elected and this time accepted. 
 
 67 
 
Wilkes, at the house of Jacob McLendon, August, 1779, 
 and he made a record of which the most bloodthirsty solic- 
 itor might be proud, securing the conviction of nine pris- 
 oners for capital offenses. They were all duly and regularly 
 hanged by the neck until their bodies were dead, dead, 
 dead.i" 
 
 Born amid the shock of arms, John McPherson Berrien 
 first saw the light on the 23rd of August, 1781, at the 
 residence of his paternal grandfather, near Princeton, New 
 Jersey. That grandparent was one of the Justices of the 
 Supreme Court of that infant Commonwealth, and a friend 
 of Washington. 
 
 Major John Berrien, the father, was an officer in the 
 Continental Army, and his mother, Margaret McPherson, 
 was the sister of John McPherson, who as an aide-de-camp 
 to General Montgomery, shared with him a soldier's death 
 before the walls of Quebec. 
 
 Shortly after the evacuation of Savannah by General 
 Alured Clarke and the King's forces in June, 1782, Major 
 Berrien, who during the war of the Revolution had seen 
 service in this State on the staff of Brigadier General Lach- 
 lan Mcintosh, removed with his family from New Jersey 
 and fixed his home in the commercial metropolis of Georgia. 
 In the impoverished condition of the Commonwealth, and 
 in the absence of suitable educational advantages at the 
 South, anxious that his son should obtain the best instruc- 
 tion the country then afforded. Major Berrien sent him to 
 school both in New York and in New Jersey. His collegi- 
 ate studies were pursued at Nassau Hall, and from this in- 
 stitution he received his degree of Bachelor of Arts at the 
 early age of fifteen. 
 
 Returning to Georgia, he entered the law office of Hon. 
 Joseph Clay, son of a member of the Continental Congress 
 and Deputy Paymaster-General in the Southern Depart- 
 ment; himself an eloquent advocate, afterwards advanced 
 to the bench of the United States Court for the District of 
 
 68 
 
Georgia- At a later period, laying aside his judicial robes, 
 Judge Clay entered the sacred ministry and became a 
 famous American pulpit orator. 
 
 His eighteenth year was not completed when Mr. Ber- 
 rien was called to the bar.^^ In Georgia history few names 
 hold higher place than that of Judge Berrien, a most accom- 
 plished lawyer and Judge, Senator and Attorney-General 
 of the United States.^" By the country at large, he was 
 saluted as the American Cicero, and of him, when respond- 
 ing in behalf of the Supreme Court of Georgia to the memo- 
 rial submitted by the Savannah Bar, Chief Justice Lumpkin 
 exclaimed, "As a lawyer and a citizen who will dispute 
 with him the premiership?"^^ While his conspicuous public 
 career belongs to a later period, he was a product of 
 Eighteenth Century Georgia. 
 
 THE JUDICIARY I777-180O. 
 
 Upon the recapture of Savannah by the British, Chief 
 Justice Stokes returned with Governor Wright and again 
 opened court, and there are numerous entries in the Narra- 
 tive relating to legal matters during that period. James 
 Robertson was the Attorney-General under the British. In 
 the siege of Savannah, in 1779, by the French under Count 
 D'Estaing, a shell destroyed Stokes' house, killed three and 
 seriously wounded three others of his slaves. When the 
 city was captured he escaped and returned to England (see 
 letter to him from Joseph Clay, 8 Ga., Hist. Sec. 254), 
 where his salary of 500 pounds was paid for a year or two 
 and then he wrote his most cellebrated book, "Constitution 
 of the British Colonies in America." 
 
 Stokes's Work contains a valuable chapter on the organi- 
 zation 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." 
 
 69 
 
When Stokes left Georgia, John Glen was elected first 
 Chief Justice of the State, with a salary of 300 pounds. But 
 as all of the Court records have been lost there is nothing 
 in Georgia relating to his administration of the office. How- 
 ever, 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." has been pre- 
 served, 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 Con- 
 gress and w^as 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. 
 
 Glen was succeeded by Stephens, and he by Wereat.*' 
 
 Upon the recapture of Savannah, in 1782, although des- 
 olation brooded everywhere and poverty lay down at every 
 door, the General Assembly, in again putting in motion the 
 wheels of Government and providing for the reopening of 
 the temples of justice, — the doors of which had been sealed 
 for several years, — provided a salary of 500 pounds for the 
 Chief Justice. It will be remembered that while there were 
 then Associate Justices in each county, they were not salaried 
 officers. Their positions were entirely honorary. The 
 Chief Justice rode the circuit of the State, and, unless pre- 
 vented by Providential cause, presided at all sessions of the 
 Superior Court in each county. As early as 1804 the salary 
 of the Judges of the Superior Courts was fixed at fourteen 
 hundred dollars." 
 
 When Wereat's term expired the Legislature not only 
 elected a man who was not a candidate, but one who was 
 
 70 
 
not a citizen. In August, 1782 (3 Rev. Rec. 187) it was 
 "Resolved that the Governor be requested to write to the 
 Hon. Aedanus Burke, Esq., of South Carolina, informing 
 him that this House had elected him to the office of Chief 
 Justice of this State with a salary of 500 pounds sterling." 
 (3 Rev. Rec. 187, 188.) 
 
 He did not accept the Georgia appointment and Richard 
 Howley was elected in his stead. (3 Rev. Rec. 380.) 
 
 All Court Records of the Revolutionary period appear 
 to have been lost, except those in Wilkes, prior to 1779. 
 The consequence is that we know nothing of the legal his- 
 tory of that tim.e, except that we can gather from the inci- 
 dental allusions in the Minutes of the Governor and Coun- 
 cil. These give us the names of the Chief Justices (John 
 Glen, 1776-1780; Williams Stephens, 1780; John Wereat, 
 178 1 ; Aedanus Burke, 1782; Richard Howley, 1782; 
 George Walton, 1783-1786; John Houstoun, 1786; 
 WiUiam Stith, 1786-1787; Nathaniel Pendleton, 1787-1788; 
 Henry Osborn, 1788-1789; Nathaniel Pendleton, 1789) — 
 and the judges of the Superior Court of the State — George 
 Walton, Henry Osborn, William Stith and John Houstoun 
 — whose commission (2 Miller's Bench and Bar) is inter- 
 esting in itself and by comparison with the brevity of those 
 now used, when the State has two hundred times as many 
 inhabitants. 
 
 When the State was divided into Circuits, the Eastern 
 (Home) was in the southern part of the State; the Middle 
 in the central part, and the Western in the northern part, 
 from which it has been suggested they were named after the 
 English circuits, and not with reference to their geographi- 
 cal position. (Watkins' Digest, 480, 620.) The judges, 
 up to 1799, of the Eastern Circuit were William Stephens, 
 John Glen, David Mitchell; Western, Thomas Carnes; 
 Middle, George Walton and William Few, the latter of 
 whom, while in the Legislature, introduced, but without 
 securing its adoption, the first local option law ever offered 
 
 71 
 
in Georgia, proposing that it should be left to the voters to 
 determine whether the court house of Richmond County 
 should be located at Klokee, Brownsville, or Augusta. 
 (3 Rev. Rec. 565. )« 
 
 The Circuit Judge In Georgia was a splendid figure In the 
 epic era of our commonwealth, when unfettered by a code, 
 unenlightened and befogged by a maze of decisions through 
 which to search for the last one on the point at issue, he drew 
 for judgment on the rich treasury of the common law, and 
 listened to the rare eloquence of a royal race of advocates 
 who came to the forum fresh from communion with nature 
 in her wild, uncultured beauty. But of their labors little is 
 left of record.'** 
 
 To complete the list of the Eighteenth Century Bench, 
 it is proper to call attention to the fact that for a time, as 
 in some of the States prior to i860, laymen presided in the 
 Superior Court, as Assistants to the Chief Justice, when he 
 was present, and by themselves when he was absent. This 
 was an outgrowth of the English custom, followed during 
 the Colonial time, of putting the Governor, Chief Justice, 
 Assistant Justices, Attorney General, and leading men of 
 each Parish in the Commission of the Peace. After the 
 Revolution, these men were authorized to sit with the Chief 
 Justice and In his absence to hold the Superior Court.® 
 
 These Assistant Judges were laymen, and nominated 
 for their high standing and influence In the community, they 
 claimed and received neither salaries nor emoluments. ^^ 
 
 SOME EIGHTEENTH CENTURY JUDICIAL PROCEEDINGS 
 
 The very oldest judicial record In Georgia contains the 
 minutes of a court held by three Assistant Judges in 1779. 
 The record shov/s that : 
 
 "agreeable To an Order of his Honor The Presi- 
 dent, and the Honorable The supreme Executive Council 
 for the State aforesaid past the Council Chamber at Augusta 
 the day of August 1799 — 
 
 72 
 
A COURT OF GENERAL SESSIONS OR OIER AND TERMINER 
 AND GENERAL GAOL DELIVERY, 
 
 "Begun and held at the house of Jacob McLendons on 
 the twenty-sixth day of August 1779, Before the Honora- 
 ble William Downs, Benjamin Catchings & Absalom Bedell, 
 Esqrs., Assistant Judges for the county aforesaid." 
 
 Among other things the Grand Jury, Stephen Heard 
 being Foreman, and Colonel Jno. Dooly acting as Attorney- 
 General, returned an Indictment for High Treason, which 
 is celebrated because it was only "as long as your finger." 
 It charged Rials with "High Treason against this State in 
 that he did act in conjunction with the Creek Indians when 
 they were doing Murder on the Frontier of this County 
 last March, it being contrary to all laws and good Govern- 
 ment of the said State and to the bad example of others." 
 Rials plead the General Issue not guilty and put himself 
 "on God and his country for Tryall." He was found 
 Guilty. 
 
 But the most remarkable proceeding at that term of 
 the Court is the case of James Mobley, indicted for "High 
 Treason against the State, in that he did steal and carry 
 away a black horse of John Garnett some time last June, 
 and that he did also steal, take and carry away 57 head of 
 hoggs, the property of Robert Morgan some time in the 
 month of December last." He too plead the general 
 Issue, Not Guilty, and demanded Tryall by God and his 
 country. The jury brought in their verdict, "Not Guilty, 
 and so say they all." There was no Bill of Rights and no 
 provisions against double jeopardy, and so "The State's 
 Attorney moved to the Honorable Court that James Mobley 
 should be ordered to be sent to Augusta for further tryall. 
 Not Granted." The Solicitor was persistent, however, and 
 the minutes show that the next day "The Honorable Attor- 
 ney in Behalf of the State Motioned to the Court that the 
 tryall of James Mobley should be reheard, as he could pro- 
 duce More evidence in behalf of the State to support the 
 charge brought against him. The Court granted the Request 
 
— and "ordered That he should be brought to the Barr im- 
 mediately." There was a new trial and conviction of the 
 acquitted man. And here we have everything that the most 
 exacting could require. An indictment one day. A trial 
 the next day, and then Mobley and Rials and five others in 
 one sweeping order were sentenced "to be taken to the 
 guard and there kept until September 6, when they are to 
 be hanged by the neck until their bodies are dead." (See also 
 Gilmer's "Georgians," pp. 183-188)* 
 
 But notwithstanding this want of what many would 
 regard as substance, they could not altogther get away from 
 their regard for form, and the clerk having selected a silver 
 quarter and scratched thereon the words, "Superior Court, 
 Wilkes County," an order was passed by the court that the 
 "device be authenticated as the seal of the court." 
 July 17, 1790. 
 
 On the civil side of this court there are many interest- 
 ing entries, showing the persistence of common law methods 
 and forms. For example, in a case (Wilkes, 1791) of what 
 we would call Trover for the recovery of slaves, the counsel 
 were probably doubtful as to whether such an action would 
 lie, and adopted the ancient common law procedure known 
 as "Ravishment of Ward," a form resorted to by Guardi- 
 ans who sought to regain possession of kidnaped wards. 
 
 The Richmond County records go back to 1782 and 
 contain many entries that are of interest, because of the old 
 forms and customs they record. For example, a warrant of 
 Hue and Cry, issued in Edgefield, S. C, backed in Georgia, 
 and executed by a Georgia officer, is found on the Richmond 
 County Minutes (Vol. IV, p. 238). The Warrant was 
 issued to arrest the captor and to regain possession of a 
 number of slaves that had been carried away. There is a 
 swing about it not often found in a legal instrument. It is 
 addressed to the Sheriff and all officers and "in the name 
 
 *A complete transcript of the minutes of this the first session of 
 a Superior Court in Georgia which has b«en preserved is pubHshed 
 as an appendix to "The Military Record of the Georgia Bar." (35 Ga. 
 Bar Assn. Rep. 53.) 
 
 74 
 
of the State command you and every one of you forthwith 
 to raise the power of your precincts, and to make diligent 
 search therein for the persons above mentioned, and also 
 the property, and to make Fresh pursuit and Hugh and Cry 
 after them, from town to town and from country to country, 
 as well by horsemen as by footmen, and to give due notice 
 hereof in writing describing in such notice the person and 
 the offense aforesaid unto every next constable on every side 
 until they shall come to the Sea Shore, or until the said 
 malefactors and felons are apprehended and * * * that 
 you do carfy them forthwith before some of the Justices of 
 the Peace in and for the County where he or they shall be 
 apprehended, to be by such Justice examined and further 
 dealt withal according to law. Hereof fail not Respectively 
 upon the peril that shall insure thereon." 
 
 The records in the Ordinary's Office in Richmond County 
 show that several old English customs had been transferred 
 to that remote outpost. A'n A'dministrator credited himself 
 with "Cash paid for reading funeral service: i pound 8." 
 Another paid the expense of an oldfashioned Irish wake 
 (1783, p. i) and credited himself with "2 kegs of butter 
 biscuit: i pound," and "For liquor supplied the Arbitrators: 
 I pound 1 8s. 9d." And another credited himself with "Price 
 paid for rum, at the day of sale." That as you know, being 
 for the purpose of stimulating the bidding! 
 
 The Chatham records also contain interesting entries. 
 Blackstone taught that where a foreigner was indicted for 
 anything except treason, he was entitled to a trial by a jury 
 de mediatate linguae. It has been held that this law was 
 never in force in America, and yet (Chatham Min. 1792, 
 p. 237, 239) when a Frenchman was indicted for a felony, 
 he was tried by a jury of six Americans and six Frenchmen, 
 the record reciting: "Defendant being a foreigner and not 
 understanding the English language the Court ordered 6 
 persons of the same nation to be summoned to attend and 
 a venire de novo." 
 
 75 
 
In one case, the verdict reads: "We find the prisoner not 
 Guilty, and that his character has been greatly injured" 
 (251). In another a sentence of Banishment was pro- 
 nounced, it being ordered that the defendant should: "be 
 remanded to jail there to be confined until an opportunity 
 shall be had to transport him to some foreign and other 
 territories than those belonging to the United States, and 
 he is forbid to return to this state during the term of seven 
 years on pain of suffering as the law directs." (60) In Bry- 
 ant's case (404) for Horse ( ?) stealing there was a recur- 
 rence of the Pious Fraud resorted to to save the prisoner 
 from being hung. The verdict being "Guilty on the third 
 and last count at common law only to the value of two 
 pence, half penny." 
 
 There is reference (1782, p. 3) to an Indictment for 
 "Uttering seditious words," and several instances in which 
 the Superior Court of Chatham exercised the power of a 
 Court of Admiralty and passed on the question Vv'hether cap- 
 tured ships carried the proper flag or v/ere prizes of war. 
 In one case the verdict was "Ship was a flag and the Belinda 
 a prize." 
 
 It was not until 18 17 that the benefit of clergy was 
 abolished in Georgia. Prior to that time the English rule 
 had prevailed, under which all who could read were treated 
 as clericals and entitled to the Benefit of Clergy; and on 
 being found guilty were generally branded with the letter 
 M (Manslaughter), F (Forgery) or T (Theft), and were 
 then supposed to be turned over to the ecclesiastical power 
 for proper punishment. The ability to read stood a man 
 in good stead; and so the record in Richmond Superior 
 Court (1807, p. 220) recites "We of the jury, find the 
 prisoner guilty of manslaughter. It is therefore demanded 
 of the said Edwards, if he hath or knoweth anything to say 
 wherefore this Court ought not upon the premises and ver- 
 dict aforesaid to proceed to judgment and execution against 
 him, who saith that he is Clerk, and prayeth the Benefit of 
 Clergy to be allowed him in this behalf. Whereupon, all 
 
 76 
 
and singular, the premises being seen, and by the Court here 
 fully understood, it is considered by the Court that the 
 said Edwards be branded on his left hand, and immediately 
 he is branded in his left hand and is delivered according to 
 the form of the Statute." 
 
 The entry in Chatham County is in a little different 
 language. 
 
 It appears (Chatham Minutes, 1793, p. 171) that on 
 the trial of Huxford he was found guilty of manslaughter, 
 and "the prisoner being brought to the bar to receive sen- 
 tence upon his conviction, Mr. Woodruff in his behalf, 
 prayed the benefit of clergy." Thereupon the court proceed- 
 ed to pronounce sentence as follows: "That you, Ephriam 
 Huxford, be impressed, burned and scorched with the 
 letter M in the brawn of the left thumb now presently in 
 open court, pay the fees of your prosecution and be dis- 
 charged. "•* 
 
 Even a slave could not be murdered with impunity. For 
 we find from the records of Liberty county that in August, 
 1792, Henry Johnson was convicted of the murder of a 
 negro. The prisoner, being brought before the court, 
 prayed the benefit of the clergy, which was allowed him, and 
 he was directed to be burned in the hand according to law. 
 This being done, the sentence of the court was that he pay to 
 the owner of the slave the appraised value of the negro (the 
 assessment of the fine payable to the owners, rather than to 
 the State, being a relic of ancient law), and in the event of 
 the failure to pay such amount in ten days, it was provided 
 that he be sent to a frontier garrison for the space of seven 
 years to serve in the militia. ^^ 
 
 And the law was well administered in those early days. 
 If you go to the records of Camden County, you will find 
 two penal sentences there recorded and rendered by Judge 
 George Jones, the one dated 1804 and reading as follows: 
 "The State v. John Jones. Indictment for Cattle Stealing. 
 Verdict of Guilty. Ordered that the prisoner be taken from 
 the bar to the Common Gaol, there to remain and to be taken 
 from thence tomorrow to the Pillory at the hour of Ten 
 
 77 
 
O'clock and there stand in the pillory for the space of tvvo 
 hours, and immediately thereafter publickly to receive thirty- 
 nine lashes on his bare back, and be branded with a hot iron 
 on the right shoulder with the letter "R," and to receive 
 thirty-nine lashes on the bare back at the same place on Satur- 
 day the 27th instant, between the hours of ten and twelve 
 o'clock; and also to receive thirty-nine lashes on his bare back 
 on Monday the 29th instant, between the same hours and at 
 the same place, and to be imprisoned for ten days thereafter, 
 and then discharged upon payment of fees;" and the other 
 reading as follows: "The State vs. Samuel King. Indict- 
 ment for Perjury, and Conviction thereon. The Prisoner 
 being on motion of the Atty. General brought up to the bar 
 to receive sentence, was asked by the Court if he had ought 
 to say why sentence should not now be pronounced, and 
 answering that he had nothing to say, the following sentence 
 was pronounced by the Court: 'It is ordered that you, the 
 said Samuel King, do pay a fine of Twenty Pounds, equal to 
 Eighty-Eight Dollars and Eighty Cents, that you also be con- 
 fined to the Common Prison of this County for the space of 
 six months to commence from this day, to-wit, the seventh 
 day of March in the year one thousand eight hundred and 
 five : that you henceforth be infamous and incapable of giving 
 your oath in any of the Courts of Record in this State, and if 
 after the expiration of the said confinement you have not 
 goods sufficient to satisfy the said fine of Twenty Pounds 
 equal to Eighty-Eight dollars and Eighty Cents, it is ordered 
 that you then be set in the Pillory in front of said Common 
 Prison and thence to have both your ears nailed." 
 
 Lest some present day humanitarian should conclude that 
 Judge Jones was of a cruel nature, bear in mind that those 
 were the customary penalties — in fact the penalties estab- 
 lished by law — for such felonies at that time. Georgia had 
 no penitentiary until 18 16, so that it was necessary that 
 penalties be meted out quickly and gotten over with. The 
 country was new, and as is always the case in new countries, 
 crimes against property were punished more severely than 
 any other class of crimes.^- 
 
 78 
 
THE BAR 
 
 Under the provision of the Constitution of 1777, already 
 quoted, numerous special acts were passed authorizing per- 
 sons to practice. (Watkins, 329, 378, 406.) But, of course, i^ 
 was soon found that the Legislature had no creative power 
 and could no more make a lawyer than a doctor by statute. 
 The acts, therefore, generally provided that the applicant 
 could be admitted when he produced to the court satisfactory 
 evidence of his qualification. For example, the Minutes of 
 Chatham (16) show that "on motion of Mr. Stirk the peti- 
 tion of Florence Sullivan was read, including a resolution of 
 the House of Assembly, and it appearing to the court that 
 Mr. Sullivan has regularly served his time, he was admitted 
 and sworn as an attorney." This would indicate that the 
 provisions of II Geo. II, Chap. 22, was treated as of force 
 in Georgia. Indeed, as late as 1783 (8 Ga. Hist. Soc. 183; 
 Memoirs of Judge Rich'd H. Clark, 121), Joseph Clay, 
 in writing of his son's desire to be admitted to the Bar, com- 
 plains of the requirement that he should be articled as a 
 clerk for five years — "the term preposterously prescribed 
 by law." But that was shorter than the seven-year term 
 which had long been required in England of those who were 
 admitted through the Inns of Court. But it was inevitable 
 that the term and course of study in Georgia should be 
 shorter than in England, and this was finally settled by the 
 first Rules of Court, promulgated in 1790 (3 Min. 84) by 
 Judge Osborne at a session of the Superior Court of Rich- 
 mond County, re-adopted in Chatham (Minutes, 1792, 364) 
 and in Wilkes (1790, p. 2.) These rules provided: 
 
 "The principle of admission of attorneys being a knowl- 
 edge of the laws and the practice of the Courts, a liberal 
 examination shall be had in thejse respects, but the mode 
 of interrogation shall be varied, and no person shall be 
 admitted until after twelve months residence." 
 
 This was the beginning of the custom of having oral 
 examination in open court, which continued for more than 
 a hundred years. We do not know what were the specific 
 
 79 
 
requirements for admission in Georgia, but the custom in 
 the other Colonies was to pay a fee of $ioo to a member 
 of the bar for the privilege of reading in his office for the 
 required time. 
 
 The standard was unusually high. Trained lawyers 
 were on the bench from the very beginning of Georgia's 
 history as a Royal Colony — several members of the Bar 
 had been students at the Inns of Court, and while the Litch- 
 field Law School under Judges Reeve and Gould was in 
 existence, a greater proportion of students attended from 
 Georgia than any other State, population considered. 
 
 Judge Richard H. Clark in his Memoirs (p. 249) says 
 that it was "the custom for the Judge to set aside some 
 special day or days during a term for the examination of 
 applicants, and to appoint the most eminent lawyers of the 
 court on the Committee. No examination was had except 
 what occurred in open court and that was as thorough as 
 practicable." 
 , Judge Andrews, in his interesting and most valuable 
 
 ^/vvA/^(XAv<l '".^^^^^^^^**^ °^ ^" ^^^ Georgia Lawyer," tells us that in 
 those days of formality, the Sheriff wore a cocked hat and 
 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 distinctioin between 
 attorneys and barristers, and the requirement that lawyers 
 should be heard in the "Habit of a Black Robe." This 
 rule provides : 
 
 "For the sake of a decent conformity to ancient custom 
 ^ and of a necessary distinction in the profession, the attorneys 
 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 recogniz- 
 ing Barristers and establishing the necessary distinction." 
 (Minutes Richmond, S. C. 1790, p. 54) 
 
 80 
 
Mr. Dutcher, In the history of Augusta, (1890) says 
 that for years after 1799 '"the Bar wore black silk robes." 
 
 The old English custom prevailed of taxing fees of 
 "Solicitors In Chancery," "Proctors," "Attorneys of the 
 Common Pleas," (7 C. R. 29,) as part of the costs. ^ 
 
 With judges and lawyers coming soon after Oglethorpe 
 left. Circuit Riding along the coast began early In the history 
 of the State, with Savannah furnishing the supply of Circuit 
 Riders for all the coast section. Records of the counties to 
 the south of Chatham all the way to Camden County teem 
 with evidence of the activities of the Savannah brethren of 
 those days. All the coast counties formed one circuit or dis- 
 trict; the Eastern district it was called, and the judges for 
 this district were without exception from Savannah. 
 
 We may picture the judges and the members of the Savan- 
 nah bar setting forth on one of their semi-annual pilgrimages 
 to the South. A gallant cavalcade it must have been, clatter- 
 ing along the Post-Road through Chatham to Hardwicke, 
 the county seat of Bryan, thence to Walthourville in Liberty, 
 then on to Darlen in Mcintosh, crossing the Altamaha to 
 Brunswick In Glynn, crossing the Little Satilla River to get 
 into Camden, then the Great Satilla to Jefferson, the county 
 seat of Camden. 
 
 A goodly company and joyous one It was, entertained 
 along the way at the hospitable homes of the planters, with 
 parties of one sort and another at every home, and with 
 evenings given over to quip and jest and merry-making. 
 That was indeed the Golden Age of the Circuit Rider. The 
 planters along the coast, hosts to the visitng lawyers, were 
 educated, cultivated men, fond of good living, knowing how 
 to live, and having all the necessaries of good living near at 
 hand, all sorts of fish and shellfish at their front doors, and 
 all sorts of game in their fields and forests. It was such 
 company and such living as this that occasioned the late 
 Judge Robert Falllgant to make the declaration famous 
 along the coast: "I would rather be a fiddler on the coast 
 of Georgia than harpist in the Kingdom of Heaven. "^^ 
 
 81 I 
 
GEORGIA UNDER THE ARTICLES OF CONFEDERATION 
 
 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 poten- 
 tiality, and between 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 admir- 
 alty cases, passed a patent law, provided for the naturaliza- 
 tion 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 weakness of the Confederation. 
 
 Watkins (779) contains Treaties between the State and 
 the Creeks and Cherokees made at Augusta in 1783 and at 
 Shoulderbone in 1786 and also the Treaty with South Caro- 
 lina concluded at Beaufort in 1787. As to this it may be 
 said that the Committee were instructed to insist on a Boun- 
 dary 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.) 
 
 82 
 
Another, and hitherto unknown chapter in the Diplo- 
 matic History of Georgia has recently been found by Ed- 
 mund 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 twelve 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 instructions which were most unusual for 
 judicial officers — among other things being authorized to 
 accept and receive from any Spanish officers "full posses- 
 sion in the name and behalf of this State of all such Forts, 
 Towns and Places as may fall within the limits and descrip- 
 tion of your said county." 
 
 By Act of February i, 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. Telfair, begin- 
 ning "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 Continental," 
 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 for his party; and if the 
 fare was anything extraordinary, the landlord was compen- 
 sated 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 
 
 83 
 
of confiscated properties sold by the State at public outcry. 
 Sometimes the debt would be paid by the grant of a particu- 
 lar 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 Naturaliza- 
 tion 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 i6 was sent and remained in 
 foreign countries three years for the purpose of receiving 
 education under any foreign power he shall for three years 
 after^ his return be treated as an alien in so far as to be 
 ineligible to hold any office." (Watkins, 303.) 
 
 The State also passed an act of Banishment and Con- 
 fiscation 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 existence 
 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. ** 
 
 THE HEAD-RIGHT SYSTEM 
 
 Desirous of filling her borders with a thrifty population, 
 on 7th June, in the same year (1777), the new Legislature, 
 to invite immigration, inaugurated the head-right system 
 by passing "An Act for opening a land office, and for the 
 better settling and strengthening this State." 
 
 The "Head-right" system, as it is called, takes its 
 name from the fact that its basis of granting lands was 
 
 84 
 
founded on certain rights (per capita) given by the Acts 
 establishing it. By the Act, every free white citizen or 
 head of a family could locate a certain quantity of land, 
 with an additional amount for every free white person or 
 head in the family, and for every negro (head) owned; 
 the entire grant not to exceed a certain number of acres. 
 This land could be located anywhere inside of the counties 
 formed, and subject to some ineffective checks, in any shape 
 desired. There being no regular plan, and no comprehen- 
 sive survey of the counties showing what was open and what 
 taken, it can readily be seen that in a sparsely settled and 
 densely wooded country, the system was well calculated to 
 invite fraud, mistake and dire confusion. 
 
 It would be useless to enter minutely into the provisions 
 of this Act; it was limited as to its time of duration, and 
 expired before the close of the war brought that quiet 
 which was necessary to its active operation. 
 
 Another Act, differing only in detail was passed in 1780. 
 It, too, failed of its purpose. But the quiet of the State 
 having become assured by the successful termination of the 
 Revolutionary War, the Legislature again turned its atten- 
 tion to the work of settling its uninhabited territory and in- 
 creasing its population. 
 
 The treaty of peace of 30th of November, 1782, be- 
 tween Great Britain and the United States, transferred by 
 formal cession to Georgia those rights of ownership and 
 jurisdiction over the soil within her limits as far West as 
 the Mississippi, which she had before successfully asserted 
 by the strong arm. 
 
 On 17th February, 1783, the Legislature passed "An Act 
 for opening the land office, and for other purposes therein 
 named." It is in it that the name "Head-right" first is 
 met. It, with its amendment of ist August, 1783, became 
 the fundamental law under which all titles were thereafter 
 issued up to the time of the adoption of the lottery system. 
 Its importance will excuse a full statement of the provisions 
 of these statutes. 
 
 85 
 
By the Act, each master or head of a family was allowed 
 as his own "Head-right" two hundred acres; for each 
 head-right, white or black, in his family, fifty acres more, 
 provided that the whole amount of land did not exceed one 
 thousand acres. This was the limit in all of the head-right 
 statutes, so far as we can find, and is important to be 
 remembered. For these lands was charged, for the first one 
 hundred acres, one shilling per acre, and six pence per acre 
 for the excess. 
 
 All citizens of Georgia, or of the other States proposing 
 to settle in Georgia, were allowed to take advantage of the 
 Act. Persons who had received lands under former grants 
 for the same head-right which they now presented, could 
 not obtain lands. A twelve month's settlement and the im- 
 provement of three acres out of every hundred was a condi- 
 tion precedent to obtaining a grant or to the right of dispos- 
 ing of the lands, except by will. During the war, Georgia 
 had granted many land bounties to her soldiery. These 
 could be claimed under this "Head-right" law. The manner 
 of obtaining the grant was as follows: 
 
 Every applicant for head-rights went before the Land 
 Court for the county where the land lay which he desired 
 to obtain. These Land Courts were curious features of this 
 system — its foundation stones in fact. From them proceed- 
 ed all warrants. They alone could put the machine in 
 motion. They were at different times differently constituted. 
 In the Act for laying out Washington and Franklin coun- 
 ties, the Governor or President of the Executive Council 
 (a body then existing in Georgia), with certain members of 
 the Council, constituted the Court, and met at Augusta. 
 This, however, was temporary, and the Land Courts of 
 these counties were made the same as throughout the rest 
 of the State. 
 
 By the Act of 1783, a majority of the Justices of the 
 Peace in each county were the Court, the oldest in commis- 
 sion presiding. By the amendment of ist August, 1783, 
 four Justices and an Associate Justice of the Superior Courts 
 
 86 
 
constituted the Land Court. By an Act of 1789, three or 
 more Justices of the Peace were the Court, This Court 
 met at the county site at stated times to receive appHcations 
 for land warrants. Before it the applicant went and took 
 the oath prescribed by the Statutes, attesting his right and 
 negativing the idea that he fell among the exceptions to 
 those entitled. He also was required to produce a satisfac- 
 tory certificate of good character. 
 
 If his case was made out, he received his warrant, which 
 he presented to some one of the authorized surveyors to sur- 
 vey for him his lands. These were described as far as 
 possible in the warrant. Any person having good ground 
 of objection might file a caveat with the county surveyor, who 
 gave thirty days' notice thereof, by advertisement, before 
 its determination. It was tried by a jury of twelve free- 
 holders drawn from the by-standers by the Land Court, and 
 it proceeded at once to hear and determine the caveat. At 
 first its verdict was final, but soon an appeal to the Governor 
 and Council was allowed. If the caveat was overruled, the 
 survey proceeded. 
 
 The State had her surveyor-general, each county its 
 county surveyor; the oflicers were all elected by the Legisla- 
 ture. The county surveyor could appoint assistants. When 
 a warrant was lodged in the hands of the county surveyor 
 of the county where the land lay, or a deputy, he surveyed 
 the lands and made a plat thereof. This survey and plat 
 was ordered to be recorded in the county surveyor's office 
 within two months from the date of the warrant. A copy 
 survey and plat with the warrant was ordered sent within 
 three months from the date of the warrant, to the surveyor- 
 general. The applicant then paid the purchase money (if 
 any) to the Treasurer, and upon production of a certificate 
 of such payment from the Treasurer, the surveyor-general 
 recorded the plat, and sent on the papers to the Secretary of 
 State. 
 
 Here the grant was then drawn and presented to the 
 Executive for signature. When signed it was returned to 
 
 87 
 
the Secretary of State, sealed with the Great Seal, and regis- 
 tered. The grant was then sent to the county surveyor to be 
 recorded in the county records and then deHvered to the 
 grantee. 
 
 Warrants heretofore issued under other laws passed 
 since the Revolution were required to be brought in. If done 
 within the time prescribed, they were protected; all bona fide 
 settlers who had entered on these lands under the invitation 
 of prior Acts and executive proclamations thereunder were 
 likewise protected. The county surveyors were to send 
 up to the surveyor-general the plats and surveys made at 
 least once every two months and were also to send up 
 monthly all caveats; these were to be laid before the Gover- 
 nor and Council for information in issuing the grants. 
 
 Grants, surveys, settlements or warrants on lands not 
 ceded by the Indians, were, by ail the land Acts, null and 
 void, and prohibited under penalties. 
 
 The Act prescribed the form of grant to be used. By 
 the Act of 1789 the Governor was authorized to alter this 
 form. This he did by omitting therefrom, all mention of the 
 Executive Council, which had been abolished. Except as 
 then changed, the form of grant as therein provided, re- 
 mained the same for head-right lands. That form recites 
 the Act of 1783, as the authority for the grant; it conveys 
 the land, with all of its appurtenances in fee simple, by allo- 
 dial tenure, to the grantee. 
 
 Such was the head-right system of Georgia. When we 
 look at the unsettled condition of the counties where it was 
 to take effect, the nature of its land courts, the unlimited 
 authority of the county surveyor to appoint assistants and 
 the ease with which certain by-standers could always be on 
 hand to be the jury to try caveats, it is evident that such a 
 system afforded a tempting field for the unscrupulous land 
 speculator. 
 
 By treaties made with the Creeks and Cherokees, in 
 May and November, 1783, the Indian title was extinguished 
 to that portion of the State lying within the present South- 
 ern boundary of Habersham county, and a line drawn from 
 
 88 
 
the Western extremity thereof to Hog Mountain, In Gwin- 
 nett county, and thence down the Apalachee, Oconee and 
 Altamaha Rivers to the then Hmits of the organized part 
 of the State, with the organized counties, embracing every 
 foot of land between these lines, the rivers named, the ocean 
 and the Savannah river. This territory, by the Act of 1784, 
 was organized into the counties of Washington and Franklin, 
 and head-rights under the above system with but immaterial 
 alterations offered. 
 
 Lands between the Oconee and Middle Rivers were, 
 for twelve month, reserved for the soldiers and sailors and 
 a few other Immaterial provisions were made. 
 
 Citizens of other States had to acquire residence within 
 twelve months, in Georgia. Forty thousand acres of land, 
 twenty thousand in each county was set apart for the benefit 
 of the University, to be founded and marks the beginning 
 of the University of Georgia. By this Act all requirements 
 for cultivating lands, granted or to be granted, are abolished. 
 Grants could not exceed one thousand acres, nor could they 
 issue but once for the same head-right. By the Act of 1785, 
 the lands in Washington and Franklin were put on like 
 footing with the lands in all the other counties, and the 
 vacant lands in all the counties made subject to head-rights 
 alike. The Act of 1783 was afiirmed, except that for the 
 lands acquired thereunder as far as the quantity of one 
 thousand acres (the extreme limit) no purchase money was 
 to be charged, but only office fees. A treble tax was re- 
 quired unless three acres per hundred was settled on and 
 cultivated within three years.* 
 
 THE STATUS OF MARRIED WOMEN 
 
 In 1784 the Legislature of Georgia passed a law known 
 as the Adopting Act. This statute adopted the common law 
 and the statutes of England of force on the 14th day of 
 May, 1776, so far as they were not contrary to the Consti- 
 tution and laws of Georgia and the form of government 
 established in this State. 
 
 89 
 
Let us consider the civil status of married women as 
 it existed under this Adopting Act, and under another Act 
 of the Legislature of Georgia passed 1789, in reference to 
 the estates of married women. 
 
 By the common law, the wife's chattels real and choses 
 in action, on intermarriage and so soon as he reduced them 
 to possession, vested absolutely in the husband. As to 
 chattels personal or choses in possession which the wife had 
 in her own right, such as ready money, jewels, household 
 goods, and the like, the title to them on intermarriage, with- 
 out further action, vested immediately in the husband, and 
 the title thereto never again revested in the wife or her 
 representatives. 
 
 The Act of 1789, referred to, provided that in all cases 
 of intermarriage since the 22nd of February, 1785, the real 
 and personal estate of the wife shall become vested in the 
 husband. Real and personal property was by this Act 
 placed on the same footing and both kinds of property 
 descended and was distributed alike. So that by the com- 
 mon law and the Act of 1789, the husband became the abso- 
 lute owner of the property of the wife, real and personal, 
 owned by her at the time of marriage. As far as the law 
 could make it, her legal existence was merged in his. 
 
 He was entitled to her earnings, to all moneys made 
 by her by keeping a boarding-house, baking bread and cakes, 
 and selling them, by sewing, and to the proceeds of her 
 labor of every kind. (Wood v. Wilson Sewing Machine 
 Co., 76 Ga., 104.) 
 
 She was required to keep house for him and to rear his 
 children, and if her behavior did not conform to his views 
 he had the right to chastise her provided he did not strike 
 her with a stick larger than his thumb. Her jewels and 
 personal ornaments vested absolutely in him on marriage. 
 In return he became liable for her debts existing at the time 
 of the marriage, and he was require,d to furnish her with 
 necessaries, such as food and raiment.** 
 
 90 
 
THE BEAUFORT CONVENTION 
 
 The Savannah River was formed by the confluence of 
 the Keowee and Tugalo Rivers; the Tugalo was the bolder 
 stream, and discharged the greater water, but the Keowee 
 was the longer and reached a latitude farther north. It 
 was the head source of the Keowee that Georgia claimed 
 as the beginning of her northern boundary, the point at 
 which her northern boundary began its westward stretch to 
 the Mississippi River. This contention on the part of 
 Georgia brought about the dispute with South Carolina, and 
 at this point Georgia's boundary troubles began in earnest. 
 
 It would appear that when, according to the claim of 
 South Carolina, the Province of Carolina was divided in 
 1732 into North and South Carolina, that South Carolina 
 became possessed of, or rather claimed, a strip of land 
 lying between North Carolina and Georgia from twelve to 
 fourteen miles wide and about four hundred miles long. 
 This claim upon her part was made in construing Georgia's 
 charter from the Crown. She contended that Georgia's 
 northern boundary began at the fork or confluence of the 
 rivers Tugalo and Keowee and where those rivers lose 
 their respective names and the river Savannah begins. 
 Georgia's claim, as heretofore stated, was the head source 
 of the most northern of these streams forming the Savannah 
 River. 
 
 Under the 9th Article of the Confederation of the States 
 was provided the manner in which one independent State 
 could sue another, with reference to their boundary rights. 
 Such suit should begin by petition in the name of the liti- 
 gant State to Congress, and a federal court should be pro- 
 vided to hear the cause and determine the question in dis- 
 pute. Under this 9th Article of Confederation, South Caro- 
 lina, by and through her agents and representatives in 
 Congress, filed suit against the State of Georgia in Congress 
 on June ist, 1785. (Jounrnal United States in Congress 
 Assembled, Vol. 10, folios 189, 190, 191, 192,) Notice 
 
 91 
 
of this suit was given to Georgia by the Secretary of Con- 
 gress, and the second Monday in May following was set 
 for Georgia to appear and answer, but it was not until 
 September of that year that the answqr to such suit was 
 filed in Congress, and it was therein asserted and announced 
 that South Carolina had proposed an amicable adjusment 
 through commissioners to be appointed from both States. 
 She, however, submitted herself to the will of Congress. 
 The court to try the cause was named by Congress in the 
 following manner: The names of three persons from 
 each of the thirteen States were enrolled, and from the list 
 thus composed each litigant alternately struck one name 
 until thirteen were left. The names of these thirteen were 
 then placed in a box and nine of them drawn out by lot. 
 This nine composed the court to try the cause, and the third 
 Monday in June, 1787, was fixed for the court to hear the 
 case in New York. 
 
 As set forth in the answer of Georgia in Congress to the 
 suit of South Carolina, the latter State had proposed a joint 
 commission of the two States to amicably adjust their 
 boundary limits, both on the north, east and south. The 
 convention was agreed upon by both States, South Carolina 
 naming as her commisioners Charles Cotesworth Pinckney, 
 Andrew Pickens and Pierce Butler; Georgia named as her 
 commissioners Lachland Mclntoch, John Houston and John 
 Habersham. In the archives of the Secretary of State's 
 office will be found the very interesting correspondence 
 between Georgia's then Governor, George Matthews, and 
 her commissioners, and between the commissioners of the two 
 States, arranging for the preliminaries of the convention, 
 and the final report of their proceedings. The Georgia 
 commissioners had full, plenary powers. By agreement 
 the convention met at Beaufort, South Carolina, on April 
 24th, 1787. The commissioners of both States presented 
 their credentials which, by each, were inspected and 
 approved. Each State then presented its claim and conten- 
 
 92 
 
tion, and these claims and contentions were discussed and 
 warmly debated and considered on the 25th, 26th, 27th and 
 28th days of April, and finally on the latter date they came 
 to an agreement, the same being concurred in by all three 
 of the South Carolina commissioners and by two of the 
 Georgia commissioners, John Houston, of Georgia, dissent- 
 ing from the findings. Mr. Houston did not think that 
 there was any question whatever as to Georgia's territorial 
 limits, and did not desire to concede anything to South 
 Carolina, even for the purpose of an amicable adjusment. 
 His dissent, filed with the report in the Secretary of State's 
 office, affords very interesting reading. Both States made 
 concessions for the avowed purpose of bringing about cor- 
 dial and friendly feelings between the two States. In the 
 agreement, South Carolina ceded her claims on the south of 
 Georgia — Mr. Houston claiming that South Carolina had 
 none — and Georgia agreed to accept as her northern boun- 
 dary the head or source of the river Tugalo and the most 
 northern branch thereof. This river, while the shorter, 
 was the bolder of the two streams forming the Savannah. 
 South Carolina was to take the territory lying between these 
 two rivers and was to be entitled to the free navigation of 
 the Savannah River. This finding was reduced to writing, 
 signed by all the commissioners save Houston, whose dissent 
 accompanied the findings. The findings of this convention 
 were reported to the respective Governors of the States and 
 were afterwards adopted. The agreement as to the north- 
 ern boundary, in exact language, was as follows : "The most 
 northern branch or stream of the river Savannah from the 
 sea or mouth of such stream to the fork or confluence of the 
 rivers now called Tugalo and Keowee, and from thence the 
 most northern branch or stream of the river Tugalo until 
 it intersects the northern boundary line of South Carolina, 
 if the said branch or stream of the Tugalo extends so far 
 north, reserving all of the islands in the rivers Tugalo and 
 Savannah to Georgia; but if the head spring or source of 
 
 93 
 
any branch or stream of the said river Tugalo does not 
 extends to the highest northern latitude, shall forever here- 
 line to the Mississippi to be drawn from the head spring or 
 source of the said branch or stream of Tugalo River which 
 extend to the north boundary of South Carolina, then a west 
 after form the separation limit and boundary between the 
 States of South Carolina and Georgia." 
 
 It would naturally have been presumed that this would 
 have terminated the controversy, but it was not so to be. 
 It is true that the report and findings of the convention were 
 not only reported to the respective States, but were likewise 
 reported to Congress, and the suit of South Carolina against 
 Georgia therein pending was abandoned, but it was a travesty 
 on the good faith of South Carolina, the Hotspur State, 
 that on the very day this report was filed in Congress, that 
 State, through its delegates and representatives in Congress, 
 by legislative authority, ceded to the Federal Government, 
 and executed deed thereto, the identical territory that she 
 claimed to have released, and did release, to Georgia in the 
 convention held at Beaufort. The report, as stated, of the 
 findings of the Beaufort convention was filed in Congress 
 and there referred to a committee, and it was, so to speak, 
 "pigeon-holed," being shelved by reference to a committee, 
 and no action has ever been taken thereon, but the deed and 
 cession of the territory was, on the day it was offered, 
 accepted by Congress. So it would appear that Georgia 
 had neither gained nor lost anything by the Beaufort con- 
 vention, except that she apparently gained the ill-will of 
 South Carolina, and the dispute was thus transferred from 
 that State and was henceforth to be taken up with the Con- 
 gress of the United States. It has been said that this action 
 on the part of South Carolina was with the view of forcing 
 Georgia to cede her territory west of the Chattahoochee to 
 the Federal government, but it has likewise been charged to 
 pique and ill-will. But in any event, it was not an exposi- 
 tion of, let us say, at least, good faith, and in this regard it 
 
 94 
 
would likewise appear that the Federal government occupied 
 no higher and no better position than that of South Carolina. 
 The Federal government was, under the suit brought under 
 the 9th of the Articles of Confederation, the court in which 
 was to be determined the controversy between two sister 
 States, yet the Court — the government — accepted the terri- 
 tory which was under dispute to the detriment of one of the 
 litigants. It is charitable to say that it was very worldly, if 
 not very just. It was not, however, an act that brought to 
 her any good results. This cession of South Carolina, if 
 her claim to the territory was valid, conveyed to the Federal 
 government a strip of land twelve to fourteen miles wide by 
 four hundred miles long, and became a block in the shape of 
 a parallelogram between the States of Georgia and North 
 Carolina. Thus matters stood for some time. 
 
 On February 17th, 1783, Georgia, through her legisla- 
 ture, passed an act offering to cede her western territory to 
 the United States. This offer was, in 1788, declined by 
 Congress because of the conditions imposed. Subsequently, 
 and because of the Yazoo Frauds of 1789 and succeeding 
 years, a bill was filed in Congress looking to and providing 
 for the cession by Georgia of all of her territory west of the 
 Chattahoochee to the Mississippi River. Commissioners 
 were appointed by the United States and by the State of 
 Georgia, who conferred as to the terms of the cession. In 
 the proceedings of the Seventh Congress, (published in 
 "American State Papers and Public Laws," Vol. i, folio 
 125, for the years 1789 to 1809), will be found a communi- 
 cation from Thomas Jefferson, then president of the United 
 States, to Congress under date of April 26th, 1802, trans- 
 mitting the agreement entered into between the commis- 
 sioners appointed upon the part of the United State and 
 Georgia, as to the cession of lands by Georgia to the Fed- 
 eral government. In conformity with the terms of this 
 agreement, Georgia subsequently ceded to the United States 
 her territory west of the Chattahoochee, out of which has 
 since been carved the States of Alabama and Mississippi. 
 
 95 
 
'And here is where Georgia "got even," so to speak, with 
 the Federal government in accepting the cession from South 
 Carolina. This western territory was flooded with the 
 claims growing out of the Yazoo Frauds, and it became 
 necessary for the Federal government to settle all of these 
 disputes. Georgia was covered and quilted with Indian 
 claims: it became necessary under this agreement for the 
 United States to extinguish all Indian titles in Georgia's 
 territory, and it became, in addition thereto, necessary for 
 the United States government to pay Georgia one million 
 and a quarter dollars, and to cede to Georgia "whatever 
 claim, right or title they may have to the jurisdiction or soil 
 of any land lying within the United States and out of the 
 proper boundaries of any other State, and situated south of 
 the southern boundaries of Tennessee, North Carolina and 
 South Carolina, and east of the boundaries hereinbefore 
 described." It was a very expensive cession of territory to 
 the United States and Georgia was immensely benefited 
 thereby.^ 
 
 THE WESTERN BOUNDARY 
 
 There seems to have been an understanding that all 
 the States would, after the Revolution, surrender to the 
 general government their unoccupied lands, then called "back 
 land," for the general welfare. (See 13 Howard, 398.) 
 We were the seventh and last State to make such surrender. 
 After much and long negotiation it was accomplished. In 
 April, 1798, the United States began and in 1880 completed 
 the legislation under which our compact of 1802 was per- 
 fected. By it our western boundary was the Chattahoochee 
 River, "running along the western bank thereof, to the great 
 bend thereof, next above the place where the Uchee river 
 empties into said river; thence in a direct line to Nickojack 
 on the Tennessee river," etc.. 
 
 Dr. Miller once told an anecdote about that bend. 
 Whert asked how it happened that so many places on the 
 
 96 
 
other side of the Chattahoochee River are in Georgia where- 
 as the Chattahoochee itself is generally understood to be 
 the boundary, he said that the surveyors reported to the 
 governor that if they commenced at what was commonly 
 known as the "big bend," where the Uchee river comes 
 in, it would leave a good deal of the Chattahoochee 
 River in Alabama, because, running a straight line from 
 that bend to Nickojack, everything had to conform to that 
 line. The governor said: "We must have all the river. Go 
 lower down and find another bend." And so they did, and 
 so we got the land. This is repeated as history from Dr. 
 Miller, a historian of the first water. 
 
 In consideration of that cession of lands by Georgia, 
 the rights of our citizens to their lands in Bourbon county, 
 at the fork of the Yazoo and the Mississippi, established in 
 1785 and by us repealed in 1788, were protected. The 
 United States was also to extinguish the Indians title to the 
 country of Tallassee (now part of South Georgia) and 
 other specified lands; and the United States therein stipulated 
 that the land ceded by Georgia should form "'a State and 
 be admitted as such into the Union" when it acquired sixty 
 thousand population. Georgia ratified this compact by act 
 of June 16, 1802. The contract was that the ceded terri- 
 tory was to be made "a State" (one State), but of course 
 when the South wished for four senators in Congress instead 
 of two, we readily agreed to dividing the territory into 
 two States. = 
 
 THE FEDERAL CONSTITUTION RATIFIED 
 
 Georgia ratified the Constitution of the United States 
 on January 29, 1788. The people of this State may well 
 take a proud satisfaction in the fact that Georgia was the 
 fourth State to ratify the Constitution. While other 
 States were holding back and bickering over the sacrifices, 
 real or imaginary, which they were required to make for 
 the common good, the Convention called by the Legislature 
 of this State promptly and unanimously, "for themselves and 
 
 97 
 
for the people of Georgia, fully and entirely assented to, rati- 
 fied and adopted the proposed Constitution," hoping that 
 their ready compliance would "tend to consolidate the 
 Union" and "promote the happiness of the common 
 country.''^"* 
 
 THE CONSTITUTION OF I789. 
 
 While the provision as to amendment contained in the 
 Constitution of 1777 seems to be exclusive and exhaustive, 
 the Assembly on January 30, 1788, provided by resolution 
 for the assembling of a convention to consider alterations and 
 amendments to the constitution, to convene so soon as offi- 
 cial information was received that the Constitution of the 
 United States had been ratified by nine states; and proceeded 
 itself to select the delegates to such convention. The conven- 
 tion assembled in Augusta on November 4, 1788, adoptd a 
 constitution, providing that it should not take effect until re- 
 vised by another convention, created under a resolution of 
 the Assembly, made up of delegates chosen by the people of 
 the several counties. This second convention met in Augusta 
 on January 4, 1789, and proposed certain alterations. These 
 alterations being reported to the Assembly, a third conven- 
 tion was called to convene in Augusta on May 4, 1789, to 
 consider the constitution and the proposed alterations. The 
 third convention in a session of three days ratified the con- 
 stitution as reported by the second convention. Thus came 
 into existence the constitution known as the Constitution of 
 1789." 
 
 This Constitution is the first which set forth in separate 
 articles the different subjects of which it is composed, and 
 contained in Article IV. the sections intended as a declara- 
 tion of "fundamental principles." These sections are as 
 follows : 
 
 "Freedom of the press and trial by jury shall remain 
 inviolate. All persons shall be entitled to the benefit of the 
 writ of habeas corpus. All persons shall have the free 
 exercise of religion, without being obliged to contribute to 
 
 98 
 
the support of any religious profession but their own. 
 Estates shall not be entailed, and when a person dies intes- 
 tate, leaving a wife and children, the wife shall have a child's 
 share or her dower at her option; if there be no wife, the 
 estate shall be equally divided among the children and their 
 legal representatives in the first degree; the distribution of 
 all other intestate estates may be regulated by the law-" 
 
 The provision of the Constitution of 1777 as to clergy- 
 men is found in this Constitution also, but as a part of the 
 legislative department. 
 
 The plan of a single body, composed of members elected 
 yearly from each county, was abandoned after a trial of 
 twelve years, and the "House of Assembly" was divided into 
 two bodies called a Senate and House of Representatives. 
 The members of the Senate were elected one from each 
 county for a term of three years. The members of the 
 House of Representatives were elected from each county 
 annually. 
 
 It provided for the election of a Governor biennially in 
 the following manner: the members of the House selected 
 three persons from whom the Senate elected the Governor. 
 His powers under this Constitution were greatly enlarged; 
 he could respite in all cases except cases of Impeachment; 
 he could grant pardon in all cases after conviction, except 
 those of treason and murder; he could veto legislation, his 
 veto to be conclusive unless overcome by a legislative 
 majority of two-thirds. 
 
 This Constitution provided that Superior Courts should 
 be held twice yearly In each county, and should have juris- 
 diction of all cases, civil and criminal, except such as might 
 be referred to inferior courts. The Judges of the Superior 
 Court were elected by the General Assembly and their term 
 of office fixed at three years. By this Constitution, judges 
 were allowed to grant one new trial in all cases tried by 
 them, and no more. The limitation on the power of the 
 Legislature to increase or diminish the salary of the judges 
 
 99 
 
of the Superior Court auring their term of office (found in 
 all of our Constitutions but the first) was a part of the 
 Constitution of 1789.^" 
 
 The electorate was greatly enlarged; there was no limi- 
 tation as to representatives except as to citizenship, resi- 
 dence, age, and the payment of taxes for the year preced- 
 ing the election; the words "or being of a mechanical trade" 
 were omitted. No man could be a Senator unless he "should 
 be possessed in his own right of two hundred and fifty acres 
 of land, or some other property to the amount of two hun- 
 dred and fifty pounds;" nor a member of the House of 
 JRepresentatives unless he should "be possessed in his own 
 right of two hundred acres of land, or other property to the 
 amount of two hundred and fifty pounds." The words of 
 the Constitution of 1777 that these officers be of the Protes- 
 tant religion were omitted. 
 
 Property qualifications were extended to the office of 
 Governor. No one could be Governor who did not "possess 
 five hundred acres of land in his own right within the State, 
 and other specie of property to the amount of one thousand 
 pounds sterling." 
 
 The Georgians of that day held that a man would 
 perhaps make a better Governor who had in his own affairs 
 shown evidence of energy, efficiency and thrift. The land 
 and other property was to be in his own right, and not in 
 the right of his wife. 
 
 The old limitations of power of the government were 
 retained in the Constitution of 1789, and new restraints were 
 added: 
 
 "All powers not delegated by the Constitution, as 
 amended, are retained by the people."^" 
 
 It was provided in this constitution that at the election 
 for members of the Assembly in 1794 the electors in each 
 county should elect three persons to represent them in a 
 convention for the purpose of considering alterations to be 
 made in the constitution, such convention to be held at such 
 time and place as the General Assembly should appoint. 
 There was no other method of amendment provided." 
 
 100 
 
MCGILLIVARAY AND THE TREATY OF NEW YORK 
 
 Alexander McGilHvaray was the son of a Scotch Indian- 
 trader; his mother was a half-breed; her father was Capt. 
 Marchand, of the French service, and her mother a woman 
 of high rank in her tribe, so that he had within his veins the 
 blood of the Scotchman, of the Indian and of the French- 
 man. Out of that strange mixture, there grew a marvelous 
 personality, who, in his diplomacy, more nearly resembles 
 Talleyrand than does any other American-born character 
 known to history. He obtained and held almost, if not 
 entirely, to the end of his days, an enormous ascendency 
 over the Creek Indians, These Indians were known as the 
 "Upper" and the "Lower" Creeks. The "Upper'' Creeks 
 had for their seat a place near what is now Wetumpka, in 
 the State of Alabama. The "Lower" Creeks extended far 
 down into the peninsula of Florida. 
 
 McGillivaray held a commission as Colonel in the British 
 Army; he held a commission from the Spanish Court; he 
 finally held a commission as General from George Washing- 
 ton himself. While he received the pay and the emoluments 
 of a British Colonel, he was active in having the Indians 
 align themselves with the British, and incited them to all 
 manner of depredations upon the settlers of these United 
 States. 
 
 A treaty at Augusta was negotiated with the Creek 
 Indians in November, 1783. Under this, lands were ceded 
 to the Oconee River. McGillivaray never recognized that 
 treaty; he said it was made by two chiefs who acted under 
 duress. A further treaty was negotiated from the town of 
 LouisviUe. General Elijah Clark took a forceful part in 
 the negotiations which brought about this treaty. 
 
 Under the treaty of Galpinton, the Creeks ceded lands 
 to extend from the forks of the Oconee in a southwestern 
 direction to the source of the St. Mary's- 
 
 On November 3, 1786, the treaty of Shoulderbourne 
 was negotiated. This took its name probably from the 
 creek on which it was negotiated. There was no cession of 
 
 101 
 
lands by this treaty, but it was one of amity and friendship. 
 There was, however, no amity or friendship brought about 
 by it. 
 
 President Washington, upon reports to him of many 
 aggressions by the Indians, came nearl determining upon 
 an Indian war, but he desired to make one more effort before 
 doing this, and he sent an agent to the Indians, and especi- 
 ally to McGillivaray. McGillivaray felt greatly compli- 
 mented that the President of these United States should 
 have sent a special envoy to him in person. The result of 
 this was that McGillivaray and twenty-three other chiefs, 
 accompanied by a number of their warriors went to New 
 York, and the treaty of New York was negotiated on 
 August 13, 1790. It was supposed that this would make a 
 lasting peace between the Indians and the Americans. The 
 Americans, however, were incensed over it because it re- 
 quired them to recognize the Indians as owning on the west 
 bank of the Oconee. The Indians were incensed over it, 
 because it required them to recognize the cession of lands 
 up to the Oconee, and also because it required them to make 
 restitution of horses and property and negroes which they 
 had stolen from the whites, and as well of prisoners taken 
 by them. The result was, that this treaty which was looked 
 forward to as the solution of the relations between the In- 
 dians and the Americans, proved to be another "bone of 
 contention."^'' 
 
 GEORGIA V. BRAILSFORD 
 
 Georgia, in May, 1782, passed an act inflicting penalties 
 and confiscating the estate,s of certain persons declared 
 guilty of treason. There were a number of clauses to the 
 act, specifying the different classes of persons upon whom 
 it should operate and to what extent — the word sequester 
 being at times used, and at other times the word confiscate. 
 Brailsford, a, British subject, and Hopton and Powell, 
 citizens of South Carolina, owned a bond for over $35,000 
 against Spalding, a citizen of Georgia. They had instituted 
 suit in the circuit court of the United States for the district 
 
 102 
 
of Georgia on the bond and had recovered a judgment. 
 Gov. Telfair claimed that this debt had been confiscated by 
 the act aforesaid, and pending the suit of Brailsford, had 
 directed the State's attorney-general to apply for a rule to 
 the circuit court for the admission of the State as a party 
 to defend its claim to the debt- The application was duly 
 made, but refused. Whereupon the governor filed a bill of 
 injunction in the Supreme Court, setting forth the foregoing 
 facts, and charging a confederacy between the plaintiffs and 
 defendant. 
 
 A majority of the justices, including Chief Justice Jay, 
 maintained that Georgia had an adequate and complete 
 remedy at law, and decided that the injunction should be 
 dissolved and the bill dismissed, unless Georgia should bring 
 her suit at law by the next term of the court. This she did„ 
 and an amicable issue was made up, as Iredell had sug- 
 gested should be done in the equity cause, to ascertain 
 whether Georgia or Brailsford was the owner of the debt. 
 This issue was tried by a jury, being the first, and one of 
 the very few cases. In which a jury was ever impaneled in 
 the Supreme Court of the United States. 
 
 The charge to the jury, delivered by Chief Justice Jay, 
 was the unanimous opinion of the court. They charged 
 that the debts due Brailsford, a British subject, were not 
 confiscated by the statutes of Georgia, but only sequestered, 
 and that Brailsford's right to recover them revived at the 
 peace; that sequestration did no divest property, and that 
 Brailsford, during the war, was the real owner of the debt; 
 that Georgia's legislative authority had merely prevented 
 Brailsford from recovering his debts during the war, but 
 that thd restoration of peace, as well as the terms of the 
 treaty revived the right of action, otherwise the sequestra- 
 tion would be a lawful impediment to the recovering of a 
 bona fide debt in direct opposition to the fourth article of 
 the treaty. The jury promptly returned a verdict for the 
 defendants, and so Georgia lost her case, and with it fell all 
 her confiscation statutes.^" 
 
 103 
 
Brailsford's case turned upon the construction of our 
 treaty of 1783 with Great Britain, which Georgia's counsel 
 contended, in that regard, provided only that as to subsist- 
 ing debts "the remedy shall not be perplexed by installment 
 laws, pine-barren laws, bull laws, paper money laws, etc." 
 What these quaintly named laws were is a matter for the 
 curious. They were like our "alleviating laws" — laws for 
 prohibiting suits and staying fi. fas. against soldiers from 
 1812 to 1815, about which Wilde wrote a book and which 
 acts Judge Berrien held void-^ 
 
 CHISHOLM V. GEORGIA 
 
 The case of Chisholm, executor, v. the State of Georgia 
 came on to be argued in the Supreme Court of the United 
 States at the February term, 1793, the same term at 
 which the motion to dissolve the injunction in the case 
 of Georgia v. Brailsford was argued, the latter appear- 
 ing to immediately follow the former on the docket. Geor- 
 gia was represented in each by the same distinguished Phila- 
 delphia lawyers, Dallas and Ingersoll. But in the case of 
 Chisholm, notwithstanding Georgia's opinion of the smart- 
 ness of a Philadelphia lawyer, they were instructed simply 
 to file a remonstrance and protest against the jurisdiction 
 of the court, but to take no part in the argument of even 
 this question. Chisholm was represented by Edmund Ran- 
 dolph, at that time the Attorney-General of the United 
 States. Chisholm, executor, as had been his testator, was a 
 citizen of South Carolina, and instituted his suit in the Su- 
 preme Court of the United States for the recovery of a debt 
 which he claimed as executor against the State of Georgia. 
 Copies of the writ and process were served early in July, 
 1792, by the marshal for the district of Georgia upon Tel- 
 fair, the Governor, and upon Carnes, the Attorney-General 
 of the State. At the August term, 1792, Georgia having ig- 
 nored the suit, Mr. Randolph, as counsel for the plaintiff, 
 made a motion, "That unless the State of Georgia, after 
 reasonable previous notice of this motion, cause an appear- 
 ance to be entered on behalf of the said State on the fourth 
 
 104 
 
day of the next term, or shall then show cause to the 
 contrary, judgment shall be entered against said State, and 
 a writ of inquiry of damages shall be awarded." To 
 avoid the appearance of precipitancy and to give the 
 State time to deliberate, it was ordered by the court 
 that the consideration of the motion should be post- 
 poned to the February term, 1793. On the motion of the 
 Attorney-General, Chief Justice Jay delivered the opinion 
 of the court. It was far the longest and most elaborate 
 that fell from him while he presided as Chief Justice. 
 Indeed, it was an able opinion, well argued and embodying 
 those strong federal views which he had always entertained. 
 Wilson, Cushing and Blair all wrote opinions coinciding 
 with the Chief Justice. Iredell, the great North Carolina 
 Justice, alone dissented. The court passed an order that 
 the State should appear by the first day of the next term 
 of the court, or show cause to the contrary, and in 
 the event of failure to do so, judgment by default 
 should be entered against her. Georgia still refusing to 
 appear at the February term, judgment was rendered for 
 Chisholm against the State and a writ of inquiry awarded. 
 This writ, however, was not sued out and executed.-" 
 
 The Governor was notified of the rendition of the 
 judgment against the State in February, 1793. The Legis- 
 lature met in November. The Governor reported the pro- 
 ceedings in this cause and on the 21st day of November, 
 1793, the lower house passed an act in part as follows : 
 
 "And be it further enacted. That any Federal marshal, 
 attempting to levy on the territory of this State, or on the 
 treasury, by virtue of an execution by the authority of the 
 Supreme Court of the United States, for the recovery of 
 any claim against the said State of Georgia, shall be guilty 
 of felony, and shall suffer death without benefit of clergy, 
 by being hanged." 
 
 This bill was sent to the Senate, but there is no record 
 that it was there adopted. Already the Eleventh Amend- 
 ment was under consideration in Congress. It was sent to 
 
 105 
 
the States on March 5, 1794. Georgia seems to have 
 been then willing to mark time.'^ 
 
 This amendment was ratified by Georgia at the first ses- 
 sion of the Legislature after Its submission. The act of rati- 
 fication stated, as might have been expected, that "this legis- 
 lature doth entirely concur therewith, deeming the same to 
 be the only just and true construction of the said judicial 
 power by which the rights and dignity of the several States 
 can be effectually secured."^" 
 
 Clark's independent state 
 
 A separate and Independent Government was once set 
 up within the borders of this State, against its authority; it 
 was dominated by a citizen of this State who was Its creator 
 and who had given to the State valiant services. 
 
 This "Separate and Independent Government" was of 
 sufficient consequence to attract the most serious attention 
 of Washington, Jefferson, Hamilton, and other national 
 leaders, and was finally destroyed by military power. 
 
 Citizen Edmund Genet arrived In Charleston on the 
 8th day of April, 1793. He came to us as the Minister 
 Plenipotentiary of the French Republic, which had just been 
 inaugurated. England and France were at war. 
 
 We must take a survey of the status of this country at 
 that time. The western limits were at the Mississippi. 
 That great stretch of unknown country which we came to 
 call "The Louisiana Territory," was then owned by Spain. 
 France was then very desirous of retaking it, the granting 
 of which it had always protested. Spain was the owner of 
 the Floridas. It contended that their northern limits were 
 much further north than the limits which we now know, and 
 under this contention It claimed a large part of South Geor- 
 gia. That means not only what we now know as South 
 Georgia, but a strip extending from the Atlantic westward 
 to the Mississippi River. The United States were at that 
 moment In negotiation with the Spanish Court for the free 
 navigation of the Mississippi River. 
 
 106 
 
The inhabitants along the border were ripe for revolu- 
 tion against this country or for warfare against the Spanish 
 government, which stood in their way in their demands for 
 free navigation of "The Father of Waters." 
 
 Elijah Clark had made an enviable reputation as an 
 Indian fighter and had great success in a number of battles. 
 He had added further to his glory by an assiduous and suc- 
 cessful service in the Revolutionary War, and stood out at 
 that time as the most prominent man of rough-and-ready 
 battle in the southern part of this country. He was the 
 father of John Clark, who was to become the leader of the 
 Clark faction of Georgia politics, was to be made the Gover- 
 nor of the State, and was to exert a stormy influence in the 
 politics of the State long after his expatriation and death, 
 even down to the beginning of the Civil War. It is for 
 Elijah Clark that Clark County is named, and a monument 
 to him stands on the streets of Athens. 
 
 The relations of the United States with the Indians at 
 that time were particularly unfortunate. The Creeks 
 were greatly incensed over the treaty of New York. 
 So, Genet comes upon the scene with the Indians in this 
 state of contention, with the French in hatred against the 
 Spaniards, the Spaniards in hatred against the French and 
 us, a large part of our Western people ready to revolt 
 against their own government, and part ready to wage war 
 against any government that kept them from navigation of 
 the Mississippi River. General Clark was especially in- 
 censed, because the treaty which he had negotiated at Gal- 
 pinton was, in a large measure, set aside by the treaty of 
 New York. 
 
 Genet employed Clark, and advanced to him the sum of 
 $10,000.00. Whether this was a salary or sum deposited 
 with him for the purpose of meeting expenditures and the 
 arming of men, is not made very clear, but he was certainly 
 paid that sum of money, and proceeded to organize an 
 expedition in favor of the French Republic against Spanish 
 forces in North America. 
 
 107 
 
Genet also procured the assistance of General George 
 Rodgers Clark, who had done great service to the country 
 in Western Virginia, and who was discontented at the treat- 
 ment accorded him by the Government. 
 
 The record is not always clear as to which of these Gen- 
 eral Clarks is meant; they were not usually described by 
 their initials by the Federal Government. 
 
 Genet's plans embraced an expedition to include those 
 residing on the eastern bank of the Mississippi River, and 
 also those living on its tributaries. 
 
 They were all to be mobilized at a rendezvous on the 
 St. Mary's River in this State, and from thence were to 
 attack the Floridas and Louisiana. 
 
 The first authoritative historical statement that we have 
 of this is to be found in the correspondence laid before 
 Congress by President Washington on the 20th day of 
 May, 1794. 
 
 The United States at that time had its principal fort 
 in the territory nearest the place which was to become Gen- 
 eral Clark's seat, at Fort Fidius, which was on the Oconee 
 River, and, as nearly as can now be located, in Greene 
 County. 
 
 On April 18, 1794, Constant Freeman, Agent for the 
 War Department in Georgia, wrote the Secretary of War 
 from Fort Fidius in part as follows: 
 
 "We have been for a long time held in suspense by the 
 different reports which have circulated, relative to certain 
 persons being employed in this State to recruit a corps of 
 troops for the service of France. There cannot now be 
 any doubts remaining on the subject. Officers have been 
 appointed, and are now acting under the authority of the 
 French Republic. Parties of recruits have already marched 
 to the rendezvous appointed for them. Several men of this 
 corps have crossed the Oconee and encamped opposite 
 Greensborough. A small party was for some days opposite 
 to the Rock Landing; they have since marched to Carr's 
 Bluff, to join with those who had assembled at that place. 
 The general rendevous, we are told, is to be on the river 
 St. Mary. An agent is appointed to furnish the supplies; 
 
 108 
 
and he has for that purpose, received ten thousand dollars. 
 A person, who was formerly contractor's clerk at this post, 
 is employed by him to purchase four thousand rations of 
 provisions." 
 
 This letter shows that some of the forces were already 
 encamped across the Oconee and that General Clark would 
 cross over in ten days to take the command. 
 
 On April 13, 1794, Major Gaither, commanding the 
 Federal troops in Georgia, informed the Secretary of War 
 that: 
 
 "The French are going on with an expedition against 
 the Floridas from St. Mary's, and appear to have many 
 friends in this undertaking among tfie inhabitants of this 
 State. There is now at anchor, within musketshot of my 
 fort, the sloop of war, 'Las Cassas,' about eighteen guns, 
 with two hundred men, most of them French, and one com- 
 pany of them infantry. They are last from Charleston. 
 They say there are thirteen sail, equally large and well- 
 manned, yet to come from different ports in the United 
 States. There is a recruiting post at Temple, eighteen miles 
 up the river from thence. The last account was they have 
 eighty men and expect three hundred from the upper part 
 of this State." 
 
 Clark is reported to have been on the Georgia side of 
 the St. Mary's River with a few men in April; their number 
 is estimated from one hundred and fifty to three hundred. 
 On May 14th, the Secretary of War makes representation 
 to the Governor of Georgia that: 
 
 "General Clark and others have organized themselves 
 into a military corps within the limits of the United States 
 and are thence about setting out on some military expedition 
 against the dominions of Spain, with whom we are at 
 peace." 
 
 The Secretary of War called upon the Governor of this 
 State to put down this illegal conduct. The Governor had 
 been previously apprised that settlements were being made 
 on the western banks of the Oconee by General Clark, and 
 those under his command, but supposed that the expedition 
 and the settlements which were being made across the Oconee 
 
 109 
 
was by adventurers who had embarked in the French Inter- 
 est and in a short time they would of themselves disperse. 
 On the 20th of May, Governor Mathews ordered General 
 Irwin to direct the settlers immediately to remove. The 
 Governor was left under the impression that his order had 
 been obeyed, but on July 14th, he was informed that Gener- 
 al Elijah Clark, formerly a Major-General in the Militia 
 of the State, with a party of men, had encamped on the 
 southwest side of the Oconee opposite to Fort Fidius. Ten 
 days later General Irwin sent two officers to demand that 
 he move. This demand General Clark positively refused to 
 obey. The Governor then directed his arrest and proceeded 
 to strengthen his military post. Thereupon, the Governor, 
 on the 28th day of July, issued a proclamation reciting that 
 he had "received official information that Elijah Clark, Esq., 
 late a Major-General of the militia of this State, has gone 
 over the Oconee River with intent to establish a separate and 
 independent government on the lands allotted to the Indians, 
 and induced numbers of good citizens of said State to join 
 with him in the said unlawful enterprise", and "warning 
 and forbidding the citizens of said State from engaging in 
 such unlawful proceedings," 
 
 When this proclamatioin was issued. General Clark pro- 
 ceeded into Wilkes County, surrendered himself to certain 
 Justices of the Peace who considered his case immediately, 
 and entered an order of discharge. 
 
 Thereupon his cause becomes popular, and many persons 
 flock to his standard. 
 
 On July 30, 1794, the Governor instructs Captain 
 Fauche to recruit an extra troop of horse, and especially 
 directs that 
 
 "You will be particularly vigilant in preventing pro- 
 visions, or parties of men, from being thrown into the posts 
 which have been established, without authority, by Elijah 
 Clark Esq., on the southwest side of the Oconee," etc. 
 
 Governor Gilmer states that the Indians believed that 
 General Clark was establishing this settlement in their terri- 
 tory on their account, and they were surprised that George 
 
 110 
 
Washington did not support him. They believed that under 
 the treaty of New York, the General Government would 
 do in reference to these lands whatever they wanted. 
 
 General Clark established two forts west of the Oconee, 
 one called "Fort Advance," the other "Fort Defiance," 
 which was six miles from Fort Fidius. Houses were erected 
 within these forts ; a town was laid off at Fort Advance ; Gen- 
 eral Clark was chosen Major-General; members were elected 
 to a General Committee, called A Committee of Safety, 
 "and everything had the appearance of a permanent 
 settlement." 
 
 The State of Georgia continued, however, to pursue its 
 purpose of causing this government to be put down. George 
 Walton, one of the signers of the Declaration of Indepen- 
 dence, who was then a judge of the Superior Court, having 
 jurisdiction in Richmond and other counties, charged the 
 grand juries in his circuit, calling attention to the procla- 
 mation of the Governor, wherein it was charged that 
 "divers persons have gone over the temporary boundary 
 line between the white and Indian inhabitants of this State 
 with intent to establish a separate and independent govern- 
 ment on the lands allotted to the Indians for their hunting 
 grounds." 
 
 He called upon the grand juries to put down this unlaw- 
 ful conduct. This did not stop the oganization of the new 
 State. The Committee of Safety becomes its governing 
 body and is governed by a Constitution. When we recoUoct 
 that the governing body of the French Republic in "The 
 Reign of Terror" was called "The Committee of Public 
 Safety," we realize what an ascendency the French influence 
 had obtained over those who were engaged in this enterprise. 
 
 A "Board of Officers" was also elected, and E. Bradley 
 was made president thereof. 
 
 General Clark addresses a letter to "The Committee of 
 Safety" from Fort Advance, dated 5 September, 1794. He 
 felicitates himself upon having met "with the unanimous 
 voice of all the officers belonging to the different garrisons." 
 He promises to "always endeavor to acquit myself worthy 
 
 111 
 
of the command committed to my charge." He shows that 
 he knows that the artillery at Augusta have been ordered 
 to be in readiness to march against him, and that one-third 
 of the militia are directed to be draughted. He does not 
 believe that the troops will fight against him; he states that 
 the troops of Richmond and Burke counties have refused 
 to march against him; and believes that the people are with 
 him. He states that he is "determinedly fixed to risk every- 
 thing with my life, upon the issue, and for the success of 
 the enterprise." He tells his men that if they are sum- 
 moned to surrender the garrison, they "must refuse with a 
 firmness ever accompanying the brave." 
 
 He also records the time of meeting of the "Board of 
 Safety" as being 5th of October, that is, the first Monday 
 of the month, saying: 
 
 "That is the day on which our Constitution requires 
 them to meet." 
 
 He also states: 
 
 "It is entirely out of my power to appoint the 22nd of 
 this month, or any other day, if it does not agree with the 
 Constitution." 
 
 No trace of the contents of the Constitution can be 
 found; but there thus existed every element of an organized 
 state or government; a legislative body, a fundamental 
 compact, an organization of ofificers. Of course, there was 
 a militia established, for the whole thing was born in mili- 
 tary establishment. A town was laid off, houses built, and 
 two forts erected. These all had the appearance of a per- 
 manent settlement. 
 
 General Clark misinterpreted, however, the temper of 
 the people. Generals Twiggs and Irwin went to him and 
 sought to have him remove, but he declined. Major Adams 
 was ordered by General Twiggs to cross the Oconee and en- 
 deavor, by persuasion, to remove the settlers from Fort 
 Defiance. Major Adams' life was threatened. Thereupon 
 Major Adams was ordered to proceed to Augusta and make 
 a request upon the Governor for orders to dispossess the 
 
 112 
 
persons at Fort Defiance. On the 26th day of September, 
 General Irwin encamped on the banks of the Oconee opposite 
 Fort Defiance. Colonels Merton and Lamar, Major 
 Adams, and other officers of the militia crossed the Oconee 
 the same day to cut ofl[ communications on the south side of 
 the river, and negotiations were then had with General 
 Clark, and it was promised if he would evacuate the posts, 
 he and his men would be protected in their business and 
 property. 
 
 The day following the forts were abandoned, and were 
 set upon fire and destroyed, and thus, on the 28th day of 
 September, 1794, was ended the existence of the Separate 
 and Independent State within the borders of the State of 
 Georgia. 
 
 Alexander Hamilton assured the Governor of Georgia 
 of the pleasure the President had in knowing the steps 
 which were being taken to put down this new settlement, 
 and spoke of it as being essentially hostile to our republi- 
 can form of government, in that it was proceeding upon the 
 idea of a separate and independent government to be erected 
 upon a military basis. 
 
 The motives which prompted General Clark in his first 
 efforts were, no doubt, his desire to make war upon the 
 Indians, and upon the Spanish, and to co-operate with the 
 French and to earn the promised or expected rewards to be 
 given by the French Government for the service. Georgians 
 in general of that day disliked the Indians, had been at war 
 with the Spaniards, were in dread of further war with them, 
 and were friendly with the French. 
 
 That the public first were in favor of General Clark, 
 is probably true, and that opinion is possibly reflected in the 
 opinion of the Justices. But when they grew to realize that 
 the settlement meant a "Separate and Independant Govern- 
 ment" and that the sovereign power of both the State and 
 Federal Governments was opposed, this opinion changed, 
 the militia did march against the adventurers, and recruits 
 ceased to come to them.^' 
 
 113 
 
THE CONSTITUTION OF 1 795 
 
 On May 16, 1795, the convention (provided for in the 
 Constitution of 1789) assembled at Louisville and adopted 
 a number of amendments to the constitution.-" 
 
 The amendments, or as they are sometimes called, the 
 Constitution of 1795, made very few changes in the organic 
 law. It did not change the organization of the Legislature 
 as composed of two bodies, a Senate and House. It con- 
 tinued the division of the General Assembly and required 
 annual elections of Senators and Representatives and annual 
 sessions of the Legislature. 
 
 One change was in the mode of electing the Governor. 
 This was an election by the General Assembly, the two 
 bodies meeting together. His powers, as fixed by the Con- 
 stitution of 1789 were not changed. 
 
 No change was made in the judicial department.^* 
 
 THE YAZOO FRAUD 
 
 On January 7th, 1795, the Legislature of Georgia 
 authorized the Governor to sell certain portions of its 
 vacant lands to four companies, calling themselves "The 
 Georgia Company," "The Georgia Mississippi Company," 
 "The Upper Mississippi Company," and "The Tennessee 
 Company." Under that act, the Governor granted to James 
 Gunn, Mathew McCallister, George Walker, William Long- 
 street, Wade Hampton, and others, "The Georgia Com- 
 pany," certain of those lands for $50,000 cash and $200,000 
 to be paid November ist, 1795, secured by mortgages on 
 the lands.' 
 
 Letters patent under the great seal of the State and 
 signature of Geo. Matthews, governor, were issued on the 
 13th day of January, 1795. This wanton dissipation of the 
 property of the State, believed to be the result of corruption, 
 aroused the people to fever heat. James Jackson, a name 
 ever dear to Georgia, then a United States senator from 
 the State, afterwards one of her governors, immediately 
 resigned his seat in the Senate, and returning to the State 
 
 114 
 
announced himself a candidate for the Legislature. He 
 canvassed the State. A convention was called which sat in 
 May, 1795. Petitions and remonstrances on the pant of 
 the people and presentments of grand juries were laid before 
 it. The convention, Resolved, "that from the number, 
 respectability and grounds of complaint stated in the peti- 
 tions, that the subject required legislative deliberation, and 
 ordered the petitions to be preserved by the secretary, and 
 laid before the next legislature." The legislature thought 
 this action on the part of the convention invested them with 
 conventional powers, quo ad hoc, and gave additional valid- 
 ity to their legislative authority, if their powers over the act 
 of a preceding legislature should be questioned. They pro- 
 ceeded to pass an act denouncing the act of sale as an usur- 
 pation of power, unconstitutional and rotten with corrup- 
 tion. They declared that the evidence showed that a majoriy 
 of the members of the lower house were interested in the 
 purchase; and in the senate, where the act was passed with 
 one majority, they alleged that more than one member had 
 been proven corrupt, and that one overwhelming evidence 
 of corruption was Its accepting $500,000 as the considera- 
 tion of the sale, when the sum of $800,000, offered by per- 
 sons of as large capital, of as much respectability, and on 
 terms more advantageous to the State, was refused. They 
 therefore declared said "usurped act" null and void. The 
 grants were annulled and declared void, and the territory 
 declared still the sole property of the State. They further 
 enacted, "That within three days after the passage of the 
 act, the different branches of the legislature shall assemble 
 together, at which meeting the officers should attend with 
 the records and deeds in the secretary's, surveyor-general's 
 and other public offices, and which records and documents 
 shall be then and there expunged from the face and indexes 
 of the books of record of the State, and the enrolled law 
 shall then be publicly burned, In order that no trace of so 
 unconstitutional, vile and fraudulent a transaction, other 
 than the Infamy attached to it by this law, shall remain In 
 the public offices thereof." 
 
 115 
 
It was further enacted that the county officers of records 
 should produce their books to the Superior Courts at the 
 next session after the passage of the law, and the courts 
 were directed to cause their clerks to obliterate the deeds 
 conveying any portion of said territory therefrom, in their 
 presence, and, in the event of the failure or refusal of the 
 clerks to do so, they were to be ousted from their offices 
 and disqualified from holding any office in the future. And 
 if thereafter said officers should enter upon their records 
 any transaction, conveyance, grant or contract relative to a 
 purchase under said usurped act, they were to be rendered 
 incapable of holding any office of trust, and be subject to a 
 penalty of a thousand dollars. They further enacted that 
 said usurped law should not, nor any grant or deed issued 
 by virtue of it, be received as evidence in any court of law or 
 equity in the State, to establish a right to said territory or 
 any part thereof, but might be used for the recovery of any 
 moneys paid or given as the consideration for the pretended 
 sales of the original pretended purchasers or persons claim- 
 ing under them. And the Governor was authorized to 
 refund the moneys to the persons who had deposited in 
 payment of the pretended purchased territory. A cer- 
 tain mortgage book in which were recorded certain mort- 
 gages given by some purchasers of portions of the terri- 
 tory, having by the indisposition, mistake or neglect of 
 the Secretary of State not been produced at the former 
 auto da fe, a supplementary act was passed the following 
 year, assembling the two houses of the legislature, requir- 
 ing this mortgage book brought before them and that cer- 
 tain pages from said book, containing the entries of certain 
 pretended mortgages, "be carefully expunged from said 
 book, and at or about the hour of 12 o'clock be burnt that 
 no trace of so infamous a transaction should remain in the 
 public offices of the state." Thus this "usurped act," as our 
 fathers called it, and those records of conveyances under it 
 were consumed, and contemporary history informs us that 
 they were burnt by fire drawn from heaven, the Governor 
 using a sun-glass for the purpose.-*' 
 
 116 
 
The "Georgia Claim," as it was called, came up for 
 decision by the Supreme Court in the great case of Fletcher 
 V. Peck (6 Cranch, 37.) It went up from the Circuit Court 
 of the District of Massachusetts. The decision, covering 
 nineteen printed pages, gives a minute history of Georgia's 
 charters and boundaries, her cession to the United States 
 of land, her compact of 1802, etc. (lb. 95 to 1 14.) 
 
 Peck had bought part of those lands of the Georgia 
 Company from Fletcher, who held by a succession of deeds 
 dated September 23, 1795, February 27, 1796, and Decem- 
 ber 8, 1800. Fletcher has covenanted in his deed that Geor- 
 gia had title and seizin, that said authority to sell was good, 
 and that said title so conveyed to Peck had been "in no way 
 constitutionally or legally impaired by virtue of any sub- 
 sequent act of any subsequent legislature of the said State 
 of Georgia." The case was argued by Martin for Fletcher, 
 and by John Quincy Adams and R. G. Harper for Peck, — 
 mainly as to the pleadings. A year later, after adjusting 
 the pleadings, it was again argued, on its merits, that time 
 Mr. Joseph Story taking the place of Harper, this being the 
 only case which Mr. Story argued before that court whose 
 bench as an Associate Justice he so long adorned. The 
 Supreme Court affirmed the decision below. It held that, 
 in 1795, Georgia had the right to dispose of the unappro- 
 priated lands within its limits, and that said first act was 
 sufficient authority for the grant; that in a case between 
 two individuals over a claim under a statute in due form of 
 law, a court of law could not inquire into the question of 
 corruption of the lawmakers, nor decide it void because of 
 corrupt motives of those passing the same; that rights 
 vested under a statute could not be divested by a repeal of 
 that statute; that a sovereign State cannot pronounce its 
 own deed invalid; and that a grant is a contract. It was 
 there by Marshall said that States of this Union were 
 forbidden by the United States Constitution from impair- 
 ing the obligation of contracts, and that all attempts to do 
 so were void, because of the prohibition of the Constitution 
 or general principles of right. 
 
 117 
 
The case is familiar to all lawyers. It first declared 
 that Georgia was not a "single, sovereign power," but "a 
 part of a large empire. She Is a member of the American 
 Union," and bound by the limitations of the Constitution 
 of the United States (lb. 136.) 
 
 This case has been cited oftener and on more subjects 
 than any other decided by that high tribunal. The Supreme 
 Court of the United States has adjudged about seventy-five 
 cases on that question as to contracts, of which Georgia fur- 
 nished about one-tenth. The case of Dartmouth College v. 
 Woodward, (4 Whaton, 519-715,) decided in 18 19, is gen- 
 erally quoted as the leading case in this country as to the 
 nullity of State statutes impairing the obligation of contracts, 
 because the learned, classical and brilliant arguments of 
 Webster for the college and Wirt for the statute cast such 
 an halo of glory over the subject. But the decision had 
 already been practically made in Fletcher v. Peck, by Mar- 
 shall C. J., who elaborated it in this New Hampshire case. 
 (4 Wheaton, 6^6.) 
 
 But the case of Fletcher v. Peck involved far more than 
 this contest over so small a body of lands. In February, 
 1796, Washington, by special message to Congress, spoke 
 of the great grant called the "Yazoo Fraud" as of "exceed- 
 ing magnitude, that might in its consequences affect the peace 
 and welfare of the United States." In 1789, lands granted 
 by Georgia under an act of that date covered more than 
 fifteen millions of acres on the Tombigbee, Tennessee and 
 Mississippi Rivers, and their tributaries, occupied by power- 
 ful tribes of Indians (Creeks, Cherokees, Choctaws and 
 Chickasaws), with whom and with Spain, claiming parts of 
 the lands, the United States might become involved in war 
 on account of what might follow under that grant. Wash- 
 ington, as President of the United States, stopped occu- 
 pancy of the lands by proclamation. The lands not being 
 salable, so circumstanced, were of little value to the pur- 
 chasers. They tendered the paper currency of Georgia for 
 the balance of the purchase money, and upon its being 
 
 118 
 
refused, they sued the State in the Supreme Court of the 
 United States to enforce their rights. 
 
 In Howard v. Ingersoll, (13 Howard, 409,) is men- 
 tioned the case of Moultrie, et al., v. The State of Geogia, 
 not reported, growing out of that act passed in 1789, con- 
 veying lands between the Mississippi and Tombigbee Rivers 
 to the Virginia, South Carolina and Tennessee Yazoo com- 
 panies. Those curious to see the case will find it as an 
 exhibit to a petition of Moultrie and others to the Congress 
 of the United States for indemnity because Georgia refused 
 to make titles to the land claimed. It was a bill for specific 
 performance. The conveyance called for five millions 
 of acres, more or less. The survey showed in the named boun- 
 daries over ten millions of acres. The conveyance called for 
 the payment of $66,964 in two years. The purchasers tend- 
 ered Hillhouse's and Wereat's certificates, which were re- 
 fused by Georgia's treasurer. Petitioners said that when the 
 act was passed it was stated by members of the committees 
 and others that "Rattlesnake money," which was worthless, 
 was not to be paid, and that therefore no other Georgia pa- 
 per ought to be refused, because mentio unius est exclus'to al- 
 teriiis." (Those curious to read the details of those suits are 
 referred to vol. i, State Papers, Public Lands, — in the 
 library of the University of Georgia.) The Moultrie case 
 was never tried. Why? 
 
 That "Yazoo sale," was a small affair compared to the 
 "Yazoo Fraud," under which the Fletcher and Peck's case 
 arose. Under that "Yazoo Fraud." for $500,000, one- 
 fifth was to be cash and the remainder secured by mortgages 
 on the lands granted. The Georgia Company was to pay 
 $250,000, the Georgia Mississippi Company $155,000, the 
 Upper Mississippi Company $35,000, and the Tennessee 
 Company $50,000, and take the lands proportionately 
 meted and bounded, making perhaps three times as many 
 acres as were covered by the "Yazoo sale" of 1789. You 
 know how high the political excitement ran, how every man 
 who voted for the bill, however good was his character 
 before, was denounced as a bribed scoundrel and ostracized. 
 
 119 
 
You have often heard that our United States Senator Gunn 
 (Senator in 1780-1790 and 1791-1801, re-elected just be- 
 fore the Yazoo act) was a ringleader in the affair. Albert 
 Gallatin, one of Georgia's commissioners, said, and you 
 have read it in Gilmer's Georgians, that every man who 
 voted for it was bribed save one, which statement Col. 
 Chappell's Reminiscences repeats, saying that that one was 
 Robert Watkins. 
 
 The plea in Fletcher v. Peck on that point was, that 
 members favoring the act "were to have a share of and be 
 interested in all the lands which they, the said Gunn, 
 McCallister and Walker and their associates, should pur- 
 chase of said State by virtue of and under authority of the 
 same law, and that divers of said members" voted therefor 
 by and under that corrupt influence. 
 
 Even if Fletcher v. Peck was "a feigned case," as John- 
 son, J. said, in his separate opinion, he suspected, it seems 
 strange that the corruption was not charged more broadly, 
 if the facts were in that regard as Gallatin, Gilmer and 
 Chappell wrote. 
 
 But surely James Jackson, who drew, and the legislature 
 which passed the "rescinding act," stated the case as strongly 
 as they felt that facts would justify, in the preamble to the 
 rescinding act, which undertook to give page after page 
 of reasons justifying its passage. 
 
 That preamble (already quoted in substance) shows 
 how much of politics was there in the "grandstand-play" of / 
 the rescinding act. Had the purchasers of the "Yazoo sale" 
 of 1789 paid for their fifteen millions of acres in cash, 
 Georgia would have been happy. But for the credit amount 
 they tendered at par our paper currency. Our act of 1783, 
 February 11 (Marbury & Crawford's Digest, 185 et seq.), 
 throws Hght on this matter. It fixed the value at which 
 paper currency was to be taken in settling private contracts, 
 Instead of leaving a jury to decide each case on its "equities," 
 as we did as to Confederate contracts. It fixed the values 
 of Georgia paper for each day from January i, 1777 to June 
 I, 1780, beginning with one hundred to one and ending with 
 
 120 
 
sixteen thousand two hundred and twenty-nine to one ; and 
 the values of Continental currency were fixed for every day 
 from January i, 1779, when the value was seven hundred 
 and ninety-eight to one, and ending June i, 1780, when it 
 was eight thousand one hundred and forty-four to one. 
 
 Besides, much of the land covered by the Yazoo fraud 
 was claimed by Spain, and by the United States, and all of 
 it was a waste howling wilderness, occupied by Indians, 
 who, we admitted, had the right of occupancy at least until 
 the United States and Georgia should devise and execute a 
 plan for their removal, and it was all important to have 
 these lands occupied by citizens to come from elsewhere. 
 
 We may well doubt whether, had the bid of $500,000 
 been rejected, and that of $800,000 been accepted and paid, 
 we would have ever heard of "the Yazoo fraud." We may 
 speculate whether it had not been better for Georgia to 
 have large bodies of these lands colonized as was the Vir- 
 ginia reservation along Broad River, etc., than to cut them 
 .up into small parcels as required by our new Constitution 
 of 1798 and subsequent legislation. 
 
 The decision in Fletcher v. Peck hurt the United States 
 more than Georgia, by improving the market value of lands 
 which the United States had agreed to free so that they 
 might be owned and occupied by white citizens of Georgia. 
 By act of March 31, 18 14, Congress provided for scrip 
 to pay "the Georgia claimants." 
 
 We are in the habit of bragging that Georgia gave 
 two States to the Union. The truth is, we reluctantly and 
 after long delay ceded the territory making almost all of 
 Alabama and Mississippi, for a large and valuable con- 
 sideration. We got in return the strip twelve miles wide 
 along our whole northern border, and $1,250,000 out of 
 the first proceeds of sales of our cession. The United States 
 set apart a half million of acres to pay claims against the 
 lands, agreed to extinguish the Indian title to other parts 
 of the lands, paid $3,000,000 to settle the "Yazoo claims," 
 and over $6,000,000 for "Yazoo scrip." Jefferson had 
 
 121 
 
before the decision of Fletcher v. Peck offered $5,000,000 
 in settlement, and paid no more than that sum plus interest 
 after that decision. 
 
 When, in 1824, the United States was trying to adjust 
 accounts with Georgia, they claimed $7)735i243 to have 
 been paid out on account of "Yazoo claims," etc. In reply. 
 Governor Troup, in his message of that year, stated that 
 the payments on account of "Yazoo claims" Avere but $4,284- 
 151, and that Georgia ceded to the United States eighty 
 million acres of land, worth $1.25 per acre at a low valua- 
 tion, and that, therefore, we should charge for that land 
 in settlement $92,264,757. And he then proceeded to tell 
 the legislature of the hostility of the Union to our State, 
 to warn them of the danger of "'consolidation" and the 
 like, and closed his message with the hope for the States 
 that "no baleful comet may, in its irregular course, strike 
 one of them from its place, and, deranging the system, 
 bring back chaos and confusion."' 
 
 THE PINE-BARREN SPECULATIONS 
 
 It had become evident by the year 1794 that the head- 
 right system was not working as it should. By an Act of 
 that year, upon complaint made, the Governor was author- 
 ized to suspend any survey, and after advertising for sixty 
 days, hear evidence of its propriety, and also to inquire into 
 and annul surveys already made. A practice, too, of trans- 
 ferring warrants', and having the same re-issued to the 
 transferree by the land court, seems to have sprung up, 
 for the same Act prohibits the surveyors from surveying 
 under any warrant unless the holder would swear the same 
 was issued on his own head-rights or bounties; and the 
 warrant must have issued since loth of December, 1789. 
 
 The several head-right Acts hereinafter recited, it vrill 
 be noticed, were designed to divide the land among those 
 who should prove settlers, and not to sell them in immense 
 tracts. Each Act limited the amount to be obtained on the 
 head-rights of any one family to one thousand acres. Vari- 
 ous requirements of settlement thereon, and improvement 
 
 122 
 
thereof, were made. And yet these laws were all set at 
 naught and thousands of acres found their way into the 
 hands of single individuals. It is thought to be true that 
 unscrupulous persons obtained these head-right warrants, 
 and finding a market, sold them, before survey, to persons 
 who thus acquired large tracts. 
 
 It is evident from the prohibition in the Act of 1794, 
 that the land courts would re-issue new warrants in lieu of 
 the old, to the purchaser in his own name. In this way 
 much land would be granted to one name. Doubtless 
 unscrupulous speculators procured these warrants to be 
 issued to their creatures and transferred to themselves, in 
 many instances, and it is doubtless true that a construction 
 was put on the law in some cases, whereby hundreds of 
 grants (speaking advisedly) of one thousand acres each 
 were issued to the same person on the same day. The 
 activity of the land office increased greatly, so much so that 
 in the term of Governor Matthews, in i794-'95, over twenty 
 volumes of more than nine hundred grants per volume were 
 registered by the Secretary of State. In some of these 
 upwards of two hundred consecutive pages will contain 
 grants to one individual. The books of the surveyor-general 
 are also full of curious matter. In four books, containing 
 between three and four thousand surveys, each of one thou- 
 sand acres, one entire book, and part of another, contained 
 the lands surveyed to one man, aggregating to one million 
 two hundred and five thousand acres. Seventeen other 
 names embrace the rest of these books. These grants vary 
 from four hundred and seventy trousand acres, down. Many 
 of the surveys are made by the grantee, or surveyor. Very 
 few persons, other than one of the eighteen grantees, acted 
 as surveyor. They exchanged compliments. By a report of 
 the surveyor-general made in 1839, it can be seen that the 
 amount of land granted in these head-right counties far ex- 
 ceeded the land actually within them. It is doubtless true 
 that duplicate grants exist to much of this land. 
 
 A partial explanation to this state of affairs is to be 
 found in the unsettled condition of the country and official 
 
 123 
 
carelessness; a further explanation can be found in the rise 
 and progress of the "pine barren speculations" of i794-'95, 
 which excited much indignation at the time; but into which 
 no full inquiry was ever made. 
 
 By the Act of 1793 the lower part of Washington 
 county had been cut off and formed into Montgomery. It, 
 with a large part of Washington, was composed of barren 
 lands covered only by dense pine forests. Here it was 
 that this great fraud was perpetrated. The story is briefly 
 this: In the year 1794, following the creation of Mont- 
 gomery county, a band of unprincipled speculators combined 
 to debauch the county officials to secure enormous grants 
 of land to which they were not entitled; to have lands 
 granted even beyond the quantities in the several counties; 
 to have their land marks so described as to indicate rich 
 soil; and to go into the far distant States and sell to unsus- 
 pecting purchasers. 
 
 The Hon. Absalom Chappell, in his "Miscellanies of 
 Georgia," thus describes the working of this scheme 
 "f fraud : 
 
 "The plans of the miscreants were well laid and un- 
 flinchingly followed out. In the vast uninhabitable woods 
 they planted or found at wide distances, the necessary 
 accomplices and tools. First, men who were to act as 
 magistrates and form one of those peculiar legal devices 
 of that day called Land Courts; of which the function was 
 to issue or rather to profess to Issue the land warrants 
 which were the initial step under the head-right system. 
 Next, other men were planted or found, who as county 
 surveyors were to make, or rather to profess to make, and 
 return the locations and surveys contemplated by these 
 warrants. And the pains were also taken to have all these 
 oflicial accomplices regularly elected and commissioned to 
 the offices they were intended to abuse; their election to 
 which was a thing not difficult to effect among the ignorant 
 unsuspecting settlers scattered thinly over the immense 
 wilderness, and It was this obvious facility of electing men 
 
 124 
 
that could be used as tools, that undoubtedly stimulated and 
 encouraged, if it did not originally suggest, the idea of the 
 great pine barren speculation; the whole machinery of which 
 stood on these basely designed elections. Here, too, more- 
 over we see the reason why this fraud followed so quickly 
 after the formation of Montgomery county, and had not 
 been attempted or even conceived sooner. For as long as 
 the territory remained a part of Washington county, the 
 voters entitled to a voice in these elections, were altogether 
 too numerous, intelligent and vigilant, to have permitted any 
 hope of success in such a conspiracy. 
 
 "Not satisfied with seizing two or three millions of acres 
 which existed, they trebled the number and went to the 
 extent of issuing from the surveyor-general's office, land 
 forgeries to the extent of six or seven millions of acres. 
 
 "Some genuine grants for good lands were artfully 
 mingled with all of these grants and the character of soil 
 in the pine barrens held up as fertile by describing the 
 corners of the grant in hickory, dogwood, walnut, etc." 
 
 These grants were then carried North and reports of 
 the rich new lands of Georgia, and the new lands on the 
 Oconee River, which had reached there, enabled these swind- 
 lers, in many instances, to sell the lands called for by their 
 grants. It is said that many a person would come to Georgia 
 in expectation of settling the rich grant of land he had 
 bought, only to learn that it was impossible to find it or its 
 boundaries, and to see only the unbroken pine forest 
 around him. 
 
 The utter insufficiency of the head-right system had by 
 this time been demonstrated, and it had become evident that 
 a new method would, of necessity, be adopted in the distri- 
 bution of the new lands which the treaties with the Indians 
 were bringing within the gift of the State. The old counties 
 of the State were so cut up by grants heretofore made, that 
 in them it was not deemed advisable to attempt a new sys- 
 tem. But in the new territory acquired by the treaty of 
 Fort Wilkinson in 1802, and in the lands subsequently 
 
 125 
 
acquired from the Indians throughout the balance of the 
 State, the Lottery System was adopted. The method, as 
 tried the first time with the cession of 1802, was continued 
 with but few alterations until the territory of Georgia had 
 been distributed.* 
 
 THE CONSTITUTION OF 1 798. 
 
 Among the amendments adopted by the convention of 
 1795 was an article declaring that at the general election 
 in 1797 delegates should be chosen to assemble in conven- 
 tion at Louisville on the second Tuesday in May, 1798, to 
 consider further alterations and amendments. The conven- 
 tion thus provided for assembled at the time and place 
 fixed, and on May 13, 1798, adopted and declared of force 
 the constitution known as the Constitution of 1798.^' 
 
 The country was at peace, the people were looking to 
 the future. The wisest and best of the two previous Consti- 
 tutions was retained. The same form of government was 
 preserved, with the same limitations. But much had been 
 learned from experience. The powers of the government 
 were more specifically defined, and the rights of the people 
 were more securely safeguarded against the government. 
 
 The separation of the departments of the government 
 was stated with even greater emphasis.^** 
 
 This Constitution remained in force, except as altered 
 by amendments adopted by the General Assembly, until 
 1 86 1. It contained no separate article known as a "bill 
 of rights," but in it we first find these fundamental principles : 
 
 "No holder of public money shall be eligible to ofiice. 
 No debtor, where there is not a strong presumption of 
 fraud, shall be detained in prison after delivering up his 
 real and personal estate for the benefit of his creditors. No 
 slave shall be maliciously dismembered or deprived of life." 
 
 The organization, composition, election and sessions 
 of the General Assembly provided by the Constitution of 
 1795 were adopted by the convention of 1798, and remained 
 
 126 
 
of force until changed by a special amendment of that Con- 
 stitution in 1840, when the sessions of the Legislature be- 
 came biennial." 
 
 Senators and Representatives were required to be sol- 
 vent; they could not be the holders of public money 
 unaccounted for; nor defaulters as to taxes or other govern- 
 ment contributions.^*' 
 
 The Constitution fixed the qualifications of a Senator as 
 not under twenty-five years of age and nine years citizenship 
 in the United States, and three years an inhabitant of the 
 State, with the further condition that he "is and shall have 
 been possessed, In his own right of five hundred dollars, or 
 taxable property to the amount of one thousand dollars, 
 within the county, for one year preceding his election, and 
 whose estate shall on a reasonable valuation, be fully compe- 
 tent to the discharge of his just debts over and above that 
 sum." The qualifications of a Representative were the same 
 save that the age limit was reduced to twenty-one years, citi- 
 zenship in the United States to seven years, and the value 
 of the freehold estate necessary to own to two hundred and 
 fifty dollars or other taxable property to the value of five 
 hundred dollars.^" 
 
 The property qualification was removed by amendments 
 of 1834 and 1835. They were free from arrest during the 
 sittings of the Assembly, and ten days immediately before 
 and after, except for felony, treason, or breach of the peace; 
 and were required to take the following oath: 
 
 "That I have not obtained my election by bribery, 
 threats, canvassing, or other undue or unlawful means used 
 by myself or others by my desire or approbation for that 
 purpose. "^^ 
 
 This Constitution reads: "Every person shall be dis- 
 qualified from serving as a Senator or Representative for the 
 term for which he shall have been elected, who shall be con- 
 victed of having given or offered any bribe or treat, or 
 canvassed for such election; and every candidate employing 
 like means and not elected, shall on conviction, be ineligible 
 
 127 
 
to hold a seat in either house, or to hold any office of honor 
 or profit for the term of one year, and to such other disabil- 
 ities and penalties as may be prescribed by law." 
 
 It is probable that these unusual and rigorous qualifica- 
 tions were due to the disclosures of the Yazoo Fraud. 
 Many and serious were the charges of corruption, debauch- 
 ery and bribery of members of the General Assembly in 
 order to secure the passage of that objectionable Act. A 
 Justice of the Supreme Court of the United States (Mr. 
 Justice Wilson, who had rendered the country great serv- 
 ice in the Constitutional Convention and who had gained 
 wonderful fame as a lawyer of splendid power. His was 
 the master mind which accomplished the passage of the 
 Acts under which the Frauds were consumated.^'), a Dis- 
 trict Judge of the United States and a United States Sena- 
 tor of Georgia were alleged to be implicated in the bribery 
 of the Legislature, and it would seem that when the Consti- 
 tution of 1798 was written, the people, profiting by their 
 experience in this matter, thought they could insure them- 
 selves against a repetition of this fraud by these qualifica- 
 tions for membership in the General Assembly.^" 
 
 The Governor was to be elected by the General Assem- 
 bly; and, until the amendment of i845-'47, he must have 
 possessed, over and above just debts, five hundred acres 
 of land, in his own right, within the State, and other 
 property to the amount of five thousand dollars.^" 
 
 The Executive Department was enlarged in 1798 by 
 the creation of two new offices, those of the Treasurer and 
 Surveyor-General.^* 
 
 Originally, practically all the officers were elected or 
 appointed by the General Assembly. From time to time 
 amendments were adopted, providing for election by the 
 people. 
 
 The plan of appointment, however, remained as to the 
 Secretary of State, the Treasurer and Surveyor-General. 
 
 Official purity was assured by making all persons con- 
 victed of felony ineligible to any office or appointment of 
 honor, profit or trust, within the State.^** 
 
 128 
 
The judicial powers were vested in a Superior Court 
 and such inferior judicatures as the Legislature should 
 establish. ==" 
 
 No higher court was authorized by any constitution 
 of the State prior to 1843. The power to establish a court 
 of review, with authority to set aside verdicts, was, no doubt, 
 purposely withheld as inconsistent with that principle of 
 government, then regarded as fundamental, that all power 
 and authority resided in the people, and especially with the 
 Anglo-Saxon conception of that principle, that the people 
 were alike the source of authority and of justice. With 
 that principle both the Legislative and the Judicial depart- 
 ments of the government were made to conform. Legis- 
 lators and judges were alike given short terms and other 
 limitations equally significant were prescribed. Every juror 
 was made the judge of the law as well as of the facts of 
 every case submitted to him, and the verdict of the jury was 
 deemed to be the ultimate expression of justice. Upon 
 the juries, therefore, was placed the responsibility for the 
 protection of society and for the administration of justice. 
 The seat of power was not on the Bench, but in the jury 
 box. The fear of a concentration of power in a few officials 
 was sufficiently strong to prevent a disregard of any of the 
 limitations imposed upon the judicial systems, authorized by 
 the Constitutions of 1777, 1789 and 1798. But gradually 
 that fear subsided. The good behavior of the Judges, their 
 considerate demeanor and wise discretion In the exercise of 
 their limited functions evinced a purpose on theln part 
 to conform themselves and their administrations to popular 
 ideals. Such was the condition when the bill to amend the 
 Constitution, so as to authorize the establishment of a 
 Supreme Court, was passed by the Legislatures of 1842 and 
 1843. By that amendment there was Imbedded into the 
 Constitution of 1798 the foundation of a temple, destined 
 to become the chiefest glory of the State. ^' 
 
 The Superior Court was given exclusive jurisdiction 
 In criminal cases, and in cases involving title to land, 
 and was empowered to correct the errors of Inferior judica- 
 
 129 
 
tures. The Inferior Court was given jurisdiction in all other 
 civil cases, but the Legislature was authorized to confer 
 concurrent jurisdiction on the Superior Court. 
 
 The powers of a Court of Ordinary, or register of 
 probate were vested in the Inferior Court, its decision being 
 subject to the right of an appeal to the Superior Court. ^"^ 
 
 The Justices of the Peace were given "power to try 
 all cases of a civil nature within their district w'here the 
 debt or demand does not exceed thirty dollars. "-' 
 
 The Judges of the Superior Court were elected by the 
 General Assembly for a term of three years. The Justices 
 of the Inferior Court were elected by the General Assembly 
 to hold during good behavior. The Justices of the Peace 
 were appointed by the Justices of the Inferior Court of 
 the county, two for each district, to hold during good 
 behavior. 
 
 The Judges of the Superior Court and the Justices of 
 the Inferior Court were removable by impeachment, or on 
 the address of two-thirds of the General Assembly. 
 
 Justices of the Peace were removable by conviction for 
 malpractice, felony, or infamous crime, or on the address 
 of two-thirds of the General Assembly, (Watkins' Digest, 
 PP- 39-40).^" 
 
 This provision for the "recall of Judges" was carried 
 forward Into the amendment of 1834; was retained in the 
 Constitutions of 1861, 1865, and 1868." 
 
 In the Constitutions of 1789 and 1798, no limitations 
 were laid upon legislative authority, either as to the raising 
 or appropriation of the revenues.^^ 
 
 Our first legislature exercised the privilege of granting 
 divorces on such grounds as they saw fit, having taken this 
 over from Parliament. In 1798 the Constitution provided 
 that divorces could not be granted by the legislature except 
 upon two-thirds vote and after a jury in the Superior Court 
 had authorized a divorce upon "legal principles." This 
 prevailed until the amendment to the Constitution of 1835, 
 
 130 
 
which provided that a divorce could be had by the concurrent 
 verdicts of two juries, finding a divorce upon "legal 
 principles." 
 
 Our Supreme Court first defined "legal principles" in 
 1846 holding that the Canon Law of England, as a part of 
 the Common Law, was adopted by our Statute of 1784, 
 and prescribed the grounds of divorce, — that total divorce 
 could be granted only for adultery and cruel treatment.''^ 
 
 "It is an ill wind that blows nobody good," and so 
 with all the charges against the celebrated Yazoo Act, it 
 was the occasion of Georgia's devising a novel and radical 
 restraint upon legislation, one which has made the courts 
 more potent in arresting and setting aside laws than any- 
 thing in the history of legislation, unless it be the decision 
 in the Dartmouth College case; with this difference, how- 
 ever, that decision, whether it made for good or for evil, 
 has largely spent its force, but this provision of the Consti- 
 tution of 1798, with its twin principle of requiring single- 
 ness of subject-matter copied into most of the new Consti- 
 tutions promises to make the courts yet more powerful in 
 the future. Prior to the time of this constitutional require- 
 ment. Parliament and legislative bodies adopted their own 
 methods of passing laws. The title was no more a part of 
 an Act than the title of a volume is a part of the book. 
 The Constitution of 1798 created a new rule and provided 
 that "no law or ordinance shall pass containing any matter 
 different from what is expressed in the title thereof," "The 
 tradition being that it was inserted in the Constitution at the 
 Instance of Gen. James Jackson; its necessity being caused 
 by the Yazoo Act, which is alleged to have been smuggled 
 through the Legislature under the caption of 'An Act for 
 the payment of the late State troops'," (4 Ga. 38.) 
 
 This is believed to be the first Constitution in which 
 any such provision is to be found. The Constitution of the 
 United States and the older Constitutions of the thir- 
 teen original Colonies contain no such restriction, although 
 nearly all of the more recent Constitutions of the old as 
 
 131 
 
well as the new States have the same or analogous pro- 
 visions.^ 
 
 Mr. McElreath in his recent admirable work on the 
 Constitution of Georgia, says : 
 
 "It is an interesting fact that the Constitution of 1798 
 is the only constitution ever adopted by the people of Geor- 
 gia at a time when there was not a virtual revolution of the 
 government itself. The Constitution of 1777 was adopted 
 in consequence of the casting off of the State's allegiance to 
 Great Britain and of the necessity of setting up an indepen- 
 dent government; that of 1789, on account of the abandon- 
 ment of the Articles of Confederation, and the adoption of 
 the Federal Constitution; that of 1861, on account of the 
 secession of the State from the Federal Union; that of 
 1865, on account of the fall of the Confederacy, and the 
 necessity of obtaining re-admission into the Union; that of 
 1868, on account of the refusal of the Federal Government 
 to re-admit the State under the Constitution 1865, making 
 the adoption of another Constitution a condition precedent; 
 that of 1877, when the people of Georgia resumed control 
 of their own affairs after the end of the reconstruction era. 
 The Constitution of 1798, and the present Constitution are 
 the only ones which represent a settled condition of the 
 State's organic law; the others represent temporary condi- 
 tions and transitional periods." (McElreath on the Consti- 
 tution of Georgia, p. 114, Sec. 87.)^' 
 
 The Constitution was to be amended only by two-thirds 
 vote of each House at two consecutive sessions of the 
 Assembly. 
 
 During its life of 63 years, it was amended 22 times, 
 but while it was democratized by removing property qualifi- 
 cation from representatives, and by the election of officers 
 by the ballot of the people, there was, with the exception of 
 the creation of the Supreme Court, no radical change in the 
 spirit and form of the government and the limitations on its 
 powers. How long this great instrument, but for the seces- 
 sion, would have survived, is beyond the ken of states- 
 men. Certain it is that in 1861 it showed no evidence of 
 weakness or decay. ^^ 
 
 132 
 
THE LAWS COMPILED AND PUBLISHED 
 
 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 
 together 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). -^ 
 
 In 1786 an Ordinance was adopted "to appoint some 
 person therein named to digest and arrange all the laws 
 passed in this State before or since the Revolution," but 
 nothing was done under Its provisions, and Georgia still 
 remained without any accessible or printed records of its 
 Statutes. It had existed for sixty-seven years; many laws 
 had been passed, some had been lost, and from what Is said 
 In Watkins' Preface we may infer that the failure to publish 
 was caused by some unknown but selfish Interest. For It 
 is there quaintly stated that the compilers "had determined, 
 though, strange to relate, not without opposition, to encoun- 
 ter the task of compiling the whole of the State's laws into 
 one view * * * * upon the credit of their own 
 fortunes, and hazard its success upon their individual repu- 
 tations * * * * Many laws have never been pub- 
 lished; some are entirely lost or destroyed; others are in 
 a tattered and mutilated condition, and the mass from 
 
 133 
 
which this collection is made has hitherto been as much out 
 of the reach of the public use as the laws of Caligula."^ 
 
 Robert Watkins took a prominent part in the public 
 affairs about this time (28 Ga. 338), and may have been 
 the draftsman of that clause of the Constitution (1798) 
 which provided that "within five years * * * * ^j^g 
 body of our laws, civil and criminal, shall be digested 
 and arranged under proper heads, promulgated in such 
 manner as the Legislature may direct." At any rate, it 
 is evident from the commendation of Geo. Walton and 
 others, dated November 15th, 1798, that Watkins' Digest 
 was in preparation before the adoption of this provision of 
 the Constitution. The Assembly of 1799, when the Digest 
 was actually in press, (note to preface to Watkins' Digest) 
 passed a Resolution "that from a conviction that the Digest 
 is a work of great labor, and must and will be of importance 
 in forming a complete Digest agreeable to the 8th Section 
 of the Constitution, * * * * George and Robert 
 Watkins are entitled to generous retribution for their labor 
 and exertion * * * * ^nd that the sum of $1,500 be 
 appropriated accordingly." 
 
 But because the Digest contained the Yazoo Act, Gov. 
 Jackson disapproved the appropriation. Watkins insisted 
 that other Acts, which were repealed, were also published 
 in full, and he had, in the same way, inserted the Yazoo 
 Act with the Act repealing it. The Governor replied that 
 the rescinding- Act had declared that the Yazoo Act never 
 had been law. It, therefore, needed no repeal and conse- 
 quently had never been entitled to a place in the Digest. 
 
 It has not often, if it ever before, happened that a law 
 book caused the shedding of blood, but the correspondence 
 and feeling between the author and the Governor became 
 so acrimonius that it resulted in an old-time, dignified, cour- 
 teous and bloody duel "which was conducted in the highest 
 style of punctilio." While the seconds were arranging the 
 terms of the combat, the principals conversed with great 
 elegance and entire politeness on different matters." Then 
 
 134 
 
the seconds notified the combatants of the terms agreed on. 
 "You are to stand at a distance of ten paces; you are to 
 fire at the words 'make ready, fire!' A snap or flash to 
 be counted as a shot, etc., etc." At the first fire both pistols 
 went off into the ground. The second was a blank. At 
 the third Gov. Jackson fell, shot secundem artem, in the 
 right hip. He insisted on another fire, but the surgeons 
 claimed the right to first examine him, and on their report 
 that the bullet might have entered the cavity, hostilities 
 ceased. Mr. Watkins, with great civility, offered his ser- 
 vices to bear the wounded man from the field, and on being 
 
 carried off, the Governor most affably remarked: "D n 
 
 it, Watkins, I thought I could give you another shot." 
 (History of Augusta, 1890, p. 227.) 
 
 After ten years, the Supreme Court of the United States, 
 in Fletcher v. Peck, 6 Cranch, 87, having decided that the 
 Yazoo Act was not only constitutional, but could not be 
 repealed to the injury of third persons, Watkins and his 
 friends claimed the decision to be a more substantial vindi- 
 cation of his Digest than had been the precision of his aim in 
 the duel. 
 
 Still, with a view of obviating all objection and to 
 appease so influential an opponent, another edition was 
 printed in 1801 from identically the same plates, but omit- 
 ting the pages containing the Yazoo Act. This explains 
 why the title-page is sometimes dated 1800 and sometimes 
 1 80 1. The issue, however, had been made, and even this 
 omission did not satisfy the Legislature. It is true that the 
 Watkins brothers secured a small appropriation, but their 
 book was not only never authorized, but in 1800 the Legis- 
 lature passed a Resolution that "the appropriation of $2,000 
 in favor of Robert and George Watkins was solely intended 
 as an advance to cari-y on a work, which they represented to 
 be a collection of the laws now of force in Georgia; and 
 by no means, nor in any shape, contemplated to establish 
 the same as a Digest or Constitutional arrangement of said 
 laws; nor to give any legislative sanction to the same as a 
 
 135 
 
Code to be received in the Courts of Law and Equity; 
 reserving the revision, expulsion, or sanctioning of the same 
 or any law thereof to future sessions of the Legislature." 
 
 And further to emphasize the hostility to this famous 
 Act, a resolution was adopted December, 1800, that "the 
 Commissioners appointed to digest the laws, previous to 
 entering on their duties, shall subscribe the following oath : 
 "I solemnly swear that I will to the best of my power and 
 ability, and agreeable to the Constitution, revise, digest and 
 arrange under proper heads and subjects the Civil and 
 Criminal laws of this State, and that I will in no wise or 
 manner whatsoever insert in said Digest, a certain usurped 
 Act, entitled "An Act for the appropriating a part of the 
 unlocated territory for the payment of the State troops." 
 (Marbury & Crawford, 190-191.)^ 
 
 To carry into effect the provision of the Constitution, 
 Horatio Marbury and Wm. H. Crawford, Esquires, under 
 authority of the Legislature, prepared what was styled a 
 "Digest of the Laws of the State from its Settlement as a 
 British Province in 1755 to the Session of the General 
 Assembly in 1800, inclusive." It was published in the year 
 1802. In it the laws of the State were brought together and 
 bound in one volume. The entire acts, embracing captions, 
 preambles, and all the signatures, were reprinted. They 
 were arranged alphabetically according to subject-matter. 
 The book was not a revision, nor was it a digest; it was a 
 compilation, pure and simple.^- It omitted many acts which 
 had been repealed, and Watkins' Digest, — now out of print 
 and very scarce and the most valuable of all our books for 
 historical purposes — while giving in chronological order our 
 known statutes, yet failed to print, except by title, many acts 
 which had been repealed: — others because they were obso- 
 lete, or "repugnant to the form of our Government" (p. 
 ,54) — a round-about way of saying "unconstitutional". 
 Still Watkins' contains the great body of Colonial and early 
 statute law." 
 
 136 
 
THE JUDICIARY ACT OF 1 799- 
 
 Under the authority conferred upon it in the Constitu- 
 tion of 1798, the General Assembly, by the Judiciary Act 
 of 1799 (Cobb's Digest 185 1, p. 1135), established the 
 procedure in the Superior and Inferior Courts. The juris- 
 diction of and the procedure in the Justices' Court remained 
 substantially as provided in the Act of 1797,^" but it was 
 provided that no Justice should "sustain or try any satis- 
 faction in damages for any trespass on the person or 
 property.^^ 
 
 It may be said with reasonable accuracy that this Act 
 marks the real beginning of our present system. 
 
 It was a system which embraced three courts. The 
 Superior Court with exclusive jurisdiction in criminal cases 
 and land cases, and concurrent jurisdiction with the Inferior 
 Court in all other civil cases. The Inferior Court with ex- 
 clusive jurisdiction in matters of probate, and concurrent 
 jurisdiction with the Superior Court in all civil cases except 
 land cases. The Justices' Court with civil jurisdiction of 
 suits on debts where the amount involved was thirty dollars 
 or less, and with such jurisdiction in criminal matters as 
 were derivable from the common law. 
 
 The Superior Court had the right to review the judg- 
 ments of all the other courts. There was no court which 
 had the right to review the judgments of the Superior Court. 
 
 In 1799 there were twenty-four counties in the State. 
 These were grouped into three circuits. Eastern, Middle 
 and Western, and there was a judge for each circuit. 
 
 The distinguishing defect in this system was the absence 
 of a single court of last resort. There were three courts 
 of last resort independent of each other, and whenever a 
 new circuit was created a new independent court of last 
 resort came into existence. =" 
 
 Georgia alone of any American commonwealth had a 
 judicial system without an Appellate Court. Georgia alone 
 had no tribunal to correct errors affecting the rights of the 
 private citizen, and Georgia alone of any Anglo-Saxon 
 
 137 
 
State attempted for many years to conduct government with- 
 out a supreme judicial tribunal necessary to preserve uniform- 
 ity in the administration of justice. It was not accidental, 
 but intentional, and in pursuance of a definite public policy. 
 It furnishes a rare fact in history, worthy of study by the 
 student of political affairs. 
 
 Immediately after the Declar'atlon of Independence, 
 twelve of the newly-created States had courts Tor the correc- 
 tion of errors. These Supreme Courts had begun to publish 
 their opinions, and before the year 1800, as many as thirty 
 volumes of these early reports had been printed. 
 
 But there was nothing like this in Georgia. Neither 
 of our three early Constitutions said anything about a Su- 
 preme Court. The Constitution of 1798 authorized the 
 Superior Court to correct errors in and to grant new trials; 
 but the new trials were to be granted and the errors were to 
 be corrected in the county in which the action originated. 
 But there was no appeal to any other or higher tribunal. 
 
 The next year after the adoption of the Constitution the 
 Legislature passed the Judiciary Act of 1799, a statute which 
 has permanently affected and molded our whole system. 
 It was the great work of great men. They endeavored to 
 supply the deficiency in the Constitution by establishing a kind 
 of Court for the correction of errors. The 59th section of 
 the Act of 1799 provided that the Judges of the Superior 
 Court should meet annually at the seat of government for 
 the purpose of making rules and while they were thus in 
 convention, the Judges were required to "determine upon 
 such points as may be reserved for argument, and which may 
 require a uniform decision." 
 
 This in effect would have been a Supreme Court com- 
 posed of the Superior Court Judges sitting in banc — some- 
 what after the fashion of the one then in South Carolina, 
 and not essentially different from the Court of King's Bench 
 in England and the Supreme Court of the United States, 
 where the Judges of the Appellate Court are also Judges of 
 the Circuit Court. 
 
 138 
 
But this provision of the Judiciary Act was never allowed 
 to become operative. So much of the Act of 1799, as re- 
 quired the Judges to meet at the seat of govrnment to make 
 rules of court was allowed to remain of force, but the provi- 
 sion that they should there "determine cases reserved for 
 argument" was repealed by the Act of 1801, and — "all 
 points reserved for argument, and now awaiting a decision 
 at the seat of government are hereby directed to be sent 
 back to the respective counties from whence they have been 
 sent, to be there decided by the presiding judge." — ^Watlcins' 
 Digest 39 (i), 708 (59) ; Clayton's Digest 38 (3 and 4). 
 
 So that, what the wisdom of the authors of the Judiciary 
 Act of 1799, had attempted in creating, at least, a statutory 
 Supreme Court, was destroyed by the Legislature of 1801, 
 and the State was led to a continuance of an experiment that, 
 in the end, proved to be an admitted and pronounced 
 failure. ^^ 
 
 It evidently did not require very much to run the govern- 
 ment, and taxes may have been of less importance than 
 now; $1,000 of old public debt could be paid with one 
 dollar, and judges only received a salary of $1,400, besides 
 being required by the Judiciary Act of 1797 and that of 1799 
 to preside in each circuit alternately, "so that no two terms 
 shall be held by the same judge in the same circuit succes- 
 sively," which practice is still followed in North and South 
 Carolina. (Marbury & C. 272, 308, 60) 
 
 Strange to say, the author of the Judiciary Act Is not 
 certainly known. The credit for Its preparation has been 
 assigned by Col. Chas. C. Jones to Abraham Baldwin; by 
 Judge Richard H. Clark to Robert Stith, one of the early 
 judges of the Superior Court; while many others refer it to 
 Arthur Fort. It is possible that all these claims may be 
 well founded. There were several Judiciary Acts before 
 that of 1799, and the latter is largely a revision of those 
 which had previously been adopted. So that each of these 
 reputed authors may have had part In one or the other 
 of these Acts.^ 
 
 139 
 
David Dudley Field is justly regarded as the foremost 
 law reformer of the age. He has received international 
 recognition; and his fame is as assured as that of Kent or 
 Story. His admirers are justly indignant that in many juris- 
 dictions whole sections and titles from his Code of Civil 
 Procedure have been copied, almost word for word, without 
 any acknowledgment to him. But what shall we say of the 
 injustice of fame, when even in our own state we do not 
 know the name of that unheralded reformer, who, in 1799, 
 in the legislature of the then sparsely settled state of Geor- 
 gia, introduced and passed the Judiciary Act, which in form 
 and substance accomplished exactly the same result wrought 
 by Mr. Field by his Civil Code. 
 
 Abroad our jurisprudence has utterly failed to win rec- 
 ognition for the priority and success of this first and most 
 vital of the law reforms. 
 
 Forerunner that she was, multitudes of well posted 
 lawyers are ignorant that back in the eighteenth century, at a 
 time when the system of special pleading was regarded as 
 the very embodiment of perfection, Georgia, was first in 
 condemning its evils, and was the pioneer in establishing 
 the simple and wise method of procedure which England 
 herself has substituted for the arbitrary, though logical, 
 system of Coke and Littleton. 
 
 The very fact that Georgia so outran all others, and 
 had had the new system in successful operation half a 
 century before other states even began to discuss the ques- 
 tion, seems to have resulted in her being absolutely ignored 
 as the originator of the greatest of the modern law reforms. 
 
 The Act of 1799 in terms abolished special pleading; 
 repealed all distinction between forms of action; in a sen- 
 tence requiring the "cause of action to be fully, plainly and 
 distinctly set forth," announced a principle governing plead- 
 ings which a century of actual experience has demonstrated 
 to be both comprehensive and elastic enough to meet the 
 requirments of the simplest or most complicated case.^* 
 
 The curious customs of that day which Watkins' Digest 
 
 140 
 
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 reformers 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 Replication, 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 com- 
 mon 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 i8th Century.*' 
 
 141 
 
APPENDIX 
 
 ADDRESSES AND PAPERS USED IN THIS COMPILATION 
 
 The Arabic numeral following a passage indicates that it 
 is quoted, generally literally, from the address or paper in- 
 dicated. 
 
 (1) Walter B. Hill— "Bar Associations," 5 G. B. A. (1889) 51. 
 
 (2) Walter B. Hill, — "The History, Objects and Achievements of 
 
 the Georgia Bar Association," 19 G. B. A. (1902) 119. 
 
 (3) Joseph R. Lamar,— "Georgia Law Books," 15 G. B. A. (1898) 
 
 118. 
 
 (4) Alexander C. King,— "Sketch of the History of Land Titles 
 
 in Georgia," 2 G. B. A. (1885) 126. 
 
 (5) N. J. Hammond— "Georgia Driftwood," 13 G. B. A. (1896) 171. 
 
 (6) Joseph R. Lamar, — "The Bench and Bar of Georgia During 
 
 the Eighteenth Century," 30 G. B. A. (1913) 52. 
 
 (7) Walter G. Charlton,— "A Lawyerless Court," 18 G. B. A. 
 
 ! (190^) 261. 
 
 (8) Mrs. J. Render Terrill, — "The Georgia Lawyer as Viewed by 
 
 a Womtan," 18 G. B. A. (1901) 197. 
 
 (9) Charlton E. Battle,— "The Georgia-Tennessee Boundary Dis- 
 
 pute," 19 G. B. A. (1902) 87. 
 
 (10) Orville A. Park,— "The Military Record of the Georgia Bar," 
 
 35 G. B. A. (1918) 53. 
 
 (11) Chas. C. Jones, Jr., — "Compensation of the Judiciary," 1 G. B. 
 
 A. (1884) 89. 
 
 (12) Jno. L. Hopkins,— "The Evolution of the Code," 16 G. B. A. 
 
 (1899) 66 
 
 (13) Walter ^cElreath,— "The Provisions of the Constitution of 
 
 1877 Relating to Finance, Taxation and the Public 
 Debt," 30 G. B. A. (1913) 162. 
 
 (14) Benj. E. Pierce,— "Taxation," 38 G. B. A. (1921). 
 
 (15) Chas. C. Jones, Jr.,-— "Biographical Sketch of Jno. McPher- 
 
 son Berrien,'^8 G. B. A. (1891) 92. 
 
 (16) Luther Z. Rosser,— "Some Old Saws Resharpened," 37 G. B. 
 
 A. (1920) 85. 
 
 (17) Andrew J. Cobb, — "Report of Permanent Commission on the 
 
 Revision of the Judicial System," 30 G. B. A. 
 (1913) 199. 
 
 (18) William M. Reese,— "The Constitutions of Georgia," 2 G. B. 
 
 A. (1885) 90. 
 
 (20) Andrew J. Cobb, — Report of Committee on Jurisprudence, 
 
 Law Reform and Procedure, 27 G. B. A. (1910) 72. 
 
 (21) Walter McElreath,— "Justice Courts" 27 G. B. A. (1910) 152. 
 
 (22) Samuel Hall,— "The Jury System," 2 G. B. A. (1885) 111. 
 
 142 
 
(23) Edgar Watkins,^'A Constitutional Convention Unnecessary," 
 
 30 G. B. A. (1913) 183. 
 
 (24) Joel Branham, — "The Emancipation of Woman in Georgia," 
 
 31 G. B. A. (1914) 184. 
 
 (25) Robert C. Alston,— "A State within the State of Georgia," 
 
 29 G. B. A. (1912) 137. 
 
 (26) John W. Park, — "Georgia as a Litigant in the Supreme Court 
 
 of the United States," 13 G. B. A. (1896) 106. 
 
 (27) Robert C. Alston, — "Development of the Federal Constitution," 
 
 31 G. B. A. (1914) 100. 
 
 (28) Joseph R. Lamar, — "Georgia's Contribution to Law Reform," 
 
 9 G. B. A. (1892) 62. 
 
 (29) Z. D. Harrison,— "The Supreme Court of Georgia," 33 G. B. A. 
 
 (1916) 122. 
 
 (30) William B. Hornblower,— "The Constitution in 1795 and in 
 1895." 12 G. B. A.,(1895) 55. 
 
 (31) William W. Gordon, Jr., — "Defects in our Criminal Procedure," 
 
 23 G. B. A. (1906) 236. 
 
 (32) R. D. Header,— "The Circuit Rider by the Sea," 31 G. B. A. 
 
 (1914) 227. 
 
 (33) Joseph R. Lamar, — "History of the Establishment of the Su- 
 
 preme Court of Georgia," 24 G. B. A. (1907) 85. 
 
 (34) Andrew J. Cobb, — "Report of Committee on Legal Education 
 and Admission to the Bar." 26 G. B. A. (1909) 76. 
 
 (35) Lamar C. Rucker, — "Marriage and Divorce in Georgia," 32 
 
 G. B. A. (1915) 196. 
 
 (36) John W. Akin,— "The Circuit Judge," 4 G. B. A. (1887) 84. 
 
 14[ 
 
H 77 78 '^ 
 
 

 
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