CHAPTER VII.

POLITICAL INSTITUTIONS OF GEORGIA.

THE departure of Oglethorpe from Georgia caused an entire change in the government of the colony. The administration of its affairs, during his residence. there, has been briefly alluded to; but its civil history demands other than a passing notice, and shall therefore receive a more ample examination.

According to the royal charter the Trustees had the power of forming and preparing laws, statutes, and ordinances proper for the administration of the colony, not repugnant to the laws and statutes of the English realm. The task of framing a body of laws that should be the civil and judicial constitution of Georgia, was one which required of them much legal knowledge, large political experience, profound wisdom, and a full acquaintance with the wants and necessities of the people for whom they legislated.

The forming of statutory codes requires peculiar wisdom; but the "animation" of those laws, the giving to them life and activity, demands other qualities—the calm judgment, the strong will, the firm hand, the quick eye, and that weight of dignity and uprightness of character which command respect, and ensure obe

TOWN COURT ESTABLISHED.

217

1❝ the

dience. For," as Lord Bacon well observes,' wisdom of a law-maker consisteth not only in a platform of justice, but in the application thereof, taking into consideration by what means laws may be made certain, and what are the causes and remedies of the doubtfulness and uncertainty of law; by what means laws may be made apt and easy to be executed, and what are the impediments and remedies in the execution of laws." The Trustees, debarred by the charter from having any personal interest in the colony, other than as its public managers, had no other motive to govern them in erecting this "platform of justice,' than the sincere desire to benefit those committed to their care. They were competent to make laws, having the requisite wisdom, intelligence, and experience; but, separated three thousand miles from the territory they governed, they were not able to apply their laws with that aptness and ease which would have made them sit well upon the people, to whose tempers and necessities they should have been carefully fitted. Their primary scheme of government was of the simplest kind, and unlike any that had been previously established in America. Before the first embarkation sailed, they appointed from among the emigrants, officers for the new town, consisting of three bailiffs, a recorder, two constables, two tithingmen, and eight conservators of the peace. At the same time they erected a court of judicature, in which "all manner of crimes, offences, pleas, processes, plaints, actions, matter, causes, and things whatever, arising or happening within the province of Georgia, or between persons inhabiting or residing there,

2

1 Bacon's Works, vol. i., Introduc- 2 Minutes of Common Council, i. 15. tory Essay, xxvi.: London, 1838.

218

JUDICIAL POWER OF BAILIFFS.

whether the same be criminal or civil, or whether the said crime be capital or not capital, and whether the said pleas be real, personal, or mixed, are to be tried according to the laws and customs of the realm of England and of the laws enacted for the said province." This tribunal, known by the name and style of the "Town Court," was composed of the three bailiffs, the recorder acting as clerk; and freeholders only were admitted as jurymen. It was opened with due form by Oglethorpe, on the 7th of July, 1733, when the first case was tried, and the first jury in Georgia empannelled.

The conferring of such civil and judicial powers upon a bailiff's court, was as unsound in law as it was unique in practice. The French bailiff, from whom our officer and name is borrowed, was the prefect of a province, administering justice within one of the several districts pertaining to each of the eight parliaments of that kingdom. In England the term and office have various significations and various powers, but none answering to the character of the officers styled such in Georgia. The bailiffs of Savannah and Frederica, like those of Scotland, were empowered by the Trustees, as proprietors of Georgia, to give enfeoffment; and like them were magistrates of burghs. They had more judicial power than the English bailiff of hundreds; they had a different power from that possessed by the bailiff of courts baron; and though, to this day, in some parts of England, the chief magistrate of particular towns is styled bailiff, yet he exercises no

4

8 Journal of Trustees, ii. 319. 4 Tomline's Law Dictionary, article Bailiff. Dr. Cowel's "Interpreter of

Words and Terms, used either in the Common or Statute Laws," &c.; London, folio, 1701, sub. Bayliff.

GREAT POWER OF THE TOWN COURT.

219

such civil or judicial jurisdiction as did the bailiff of Savannah.5

6

It was giving large powers to men with humble titles; and though it is the power, and not the title, which confers greatness, yet the majesty of law, and the dignity of the colony, demanded that its executive officers should bear a name more linked with the nobler offices of state and the higher tribunals of justice, than with a sheriff's court or a baronial steward. In England these minor courts communicated with others of larger jurisdiction, and these again with others of still greater power, ascending gradually from the lowest to the supreme courts; the course of justice, as Blackstone happily describes it, "flowing in large streams from the king as the fountain, to his superior courts of record, and then subdivided into smaller channels, till the whole and every part of the kingdom were plentifully watered and refreshed." But the Town Court of record of Savannah had no communication with a higher-it was itself supreme, blending in one tribunal the several powers usually lodged in common pleas, chancery, probate, nisi prius, sheriff's, coroner's, and exchequer, and all committed to men unread in the principles of law, and unversed in the usages of courts. As for some years there was no lawyer in Georgia, every suitor, as in the old Gothic courts, was obliged to appear in person to prosecute or defend his cause.

The common law of England was the groundwork of all judicial proceedings, except so far as certain provincial necessities made other laws necessary;

5 It is observable that all the corpo- as heads or assistants in municipal rations in the county of Surrey, where affairs. Oglethorpe resided, had bailiffs, either

6 Commentaries, book iii. chap. iv.

220

UNHAPPY SELECTION OF OFFICERS.

which new enactments of the Trustees had, however, no force or legality until they had received the sanction of the king in council.

But while the colonists were nominally vested with the fundamental rights of Englishmen, the guardianship of those rights was entrusted to hands unaccustomed to poise the scales of justice. In making their first selection of officers, the Trustees were compelled to do it upon slight knowledge of the individual's character, appointing them rather on probation than for permanency, which gave rise to frequent changes and unhappy wranglings.

During the earlier years of its existence, the civil government of Georgia was mostly vested in Oglethorpe as the executive and representative of the Trustees, though without any formal commission or official title. While Oglethorpe therefore was in Savannah, the power of the bailiffs was merged in him; his views were their guide, and his decisions their law. But his residence was an intermittent one, and at his second return to Georgia he was seldom there; and then it was that the evil of the magisterial system of the Trustees became apparent. Forced, as the Trustees were, to support the colonists for several years, they erected for that purpose a dépôt for provisions, and stored in it such supplies as they sent to Savannah. This was placed under the care of Mr. Causton, the second bailiff, whose office it was to deal out the monthly supplies to the proper recipients, and to purchase such articles as were needed for their sustenance. He was the commercial agent of the Trustees, and his position as their storekeeper, joined to his office as second bailiff, placed him at the head of power Georgia. That power he soon exhibited by grasping

in