128 HISTORY OF THE COLONIES. [BOOK I.
§ 143. In the same year, in which Carolina was divided , a
was formed for the settlement of a colony upon the unoccupied territory
between the rivers Savannah and Altamaha.1 The object of the projectors
was to strengthen the province of Carolina, to provide a maintenance for
the suffering poor of the mother country, and to open an asylum for the
persecuted protestants in Europe; and in common with all the other colonies
to attempt the conversion and civilization of the natives.2 Upon
application, George the Second granted a charter to the company,
(consisting of Lord Percival and twenty others, among whom was the
celebrated Oglethorpe,) and incorporated them by the name of the Trustees
for establishing the Colony of Georgia in America.3 The charter conferred
the usual powers of corporations in England, and authorized the trustees to
hold any territories, jurisdictions, &c. in America for the better
settling of a colony there. The affairs of the corporation were to be
managed by the corporation, and by a common council of fifteen persons in
the first place, nominated by the crown, and afterwards, as vacancies
occurred, filled by the corporation. The number of common-council-men
might, with the increase of the corporation, be increased to twenty-four.
The charter further granted to the cor-
1 1 Holmes's Annals, 552; Marsh. Colonies, ch 9, p. 247; 2 Hewatt's
South Car. 15, 16; Stokes's Hist. Colonies, 113.
2 1 Holmes's Annals, 552; 2 Hewatt's South Car. 15, 16, 17.
3 Charters of N. A. Provinces, 4to. London, 1766.
CH. XV.] GEORGIA.. 129
poration seven undivided parts of all the territories lying in that part of
South Carolina, which lies from the northern stream of a river, there
called the Savannah, all along the sea-coast to the southward unto the
southernmost stream of a certain other great river, called the Alatamaha,
and westward from the heads of the said rivers respectively in direct lines
to the South seas, to be held as of the manor of Hampton Court in Middlesex
in free and common soccage and not in capite. It then erected all the
territory into an independent province by the name of Georgia. It
authorized the trustees for the term of twenty-one years to make laws for
the province " not repugnant to the laws and statutes of England, subject
to the approbation or disallowance of the crown, and after such approbation
to be valid. The affairs of the corporation were ordinarily to be managed
by the Common Council. It was farther declared, that all persons born in
the province should enjoy all the privileges and immunities of natural born
subjects in Great Britain. Liberty of conscience was allowed to all
inhabitants in the worship of God, and a free exercise of religion to all
persons, except Papists. The corporation were also authorized, for the
term. of twenty-one years, to erect courts of judicature for all civil and
criminal causes, and to appoint a governor, judges, and other magistrates.
The registration of all conveyances of the corporation was also provided
for. . The governor was to take an oath to observe all the acts of
parliament relating to trade and navigation, and to obey all royal
instructions pursuant thereto. The governor of South Carolina was to have
the chief command of the militia of the province; and goods were
130 HISTORY OF THE COLONIES. [BOOK I.
to be imported and exported without touching at any port in South Carolina.
At the end of the twenty-one years the crown was to establish such form of
government in the province, and such method of making laws therefor, as in
its pleasure should be deemed meet; and all officers should be then
appointed by the crown.
§ 144. Such is the substance of the charter, which was
for a temporary duration only; and the first measures adopted by the
trustees, granting lands in tail male, to be held by a sort of military
service, and introducing other restrictions, were not adapted to aid the
original design, or foster the growth of the colony.1 It continued to
languish, until at length the trustees, wearied with their own labours, and
the complaints of the people, in June, 1 751, surrendered the charter to
the crown.2 Henceforward it was governed as a royal province, enjoying the
same liberties and immunities as other royal provinces; and in process of
time it began to flourish, and at the period of the American Revolution, it
had attained considerable importance among the colonies.3
§ 145. In respect to its ante-revolutionary jurisprudence, a
may suffice. The British common and statute law lay at the foundation.4
The same general system prevailed as in the Carolinas, from which it
sprung. Intestate estates descended according to the course of the English
law. The registration
1 Marshall's Colon. ch. 9, p. 248, 249, 250; 2 Holmes's Annals, 4-45.
2 Hewatt's South Car. 41, 42, 43.
CH. XV.] GEORGIA. 131
2 2 Holmes's Annals. 45.
3 Stokes's Hist.of Colonies, 115, 119;2 Hewatt's South Car. 145; 2
Holmes's Annals, 45,117.
4 Stokes's Hist.of Colon. 119, 136.
of conveyances was provided for, at once to secure titles, and to suppress
frauds; and the general interests of religion, the rights of
representation, of personal liberty, and of public justice, were protected
by ample colonial regulations.
136 HISTORY OF THE COLONIES. [BOOK I.
Christians, deemed, as if it were inhabited only by brute animals. There
is not a single grant from the British crown from the earliest grant of
Elizabeth down to the latest of George the Second, that affects to look to
any title, except that founded on discovery. Conquest or cession is not
once alluded to. And it is impossible, that it should have been; for at
the time when all the leading grants were respectively made, there had not
been any conquest or cession from the natives of the territory comprehended
in those grants. Even in respect to the territory of New-York and
New-Jersey, which alone afford any pretence for a claim by conquest, they
were. conquered from the Dutch, and not from the natives; and were ceded
to England by the treaty of Breda in 1667. But England claimed this very
territory, not by right of this conquest, but by the prior right of
discovery.1 The original grant was made to the Duke of York in 1664,
founded upon this right, and the subsequent confirmation of his title did
not depart from the original foundation.
§ 153. The Indians could in no just sense be deemed a
who had been stripped of their territorial possessions by superior force.
They were considered as a people, not having any regular laws, or any
organized government; but as mere wandering tribes.2 They were never
reduced into actual obedience, as dependent communities; and no scheme of
general legislation over them was ever attempted. For many purposes they
were treated as independent communities, at liberty to govern themselves;
1 4 Wheaton, 575,576,568. See also 1 Tuck. Black. Appx. 332. 1
Chalm. Annals, 676.
2 Vattel, B.1, ch. 18, § 208,209; 3 Kent's Comm. 312, 313.