A Digest of the Laws of the State of Georgia from Its First Establishment

% v APPENDIX. N°. I. The Boundary and Territorial Right OF THE >tate of Georgia examined IN attempting to define the limits and deduce the territorial right of the State, in conformity to our engagement with the public, we have to regret that docu- ments more definite and Satisfactory are not, at prefent, to be had. In our re- searches we have been not a little difappointed in difcovering that fcarcely an original paper, which can throw light on this fubject, is to be found among the records of the State. Nothing however, in our power, has been omitted, in collecting evi- dence, and endeavouring to exhibit a candid and impartial view of thofe important and litigated points, which, with due deference, we fubmit to the examination and confederation of the public. Befides being a frontier State, Subject to the vicifitudes and various fortune of fuch an expofed Situation, it has been the unhappy lot of Georgia to be embroiled on the Subject either of boundary or territorial right from the moment of her existence. Thefe differences commenced with our filler Province, now State of South-Carolina, and extended to the mother country, were Succeeded by a mifunderftanding with the court oS Spain, a renewal oS differences with South-Carolina, and now the claim of the United States. In the midft of thefe, not to mention the embaraffments of our own government, the fanguinary and destructive warfare, in which we have too of- ten been involved with Indian tribes, on the fame Subject, has by no means been the leaft: And, unfortunately for the prefent inhabitants, they appear to be, not without juft caufe of apprehenfion that a happy termination may yet be protracted to a diftant period. Whether thefe calamities have refulted from accident, want of information, or defign in the ruling powers, or their agents indefignating the original demarkation of limits would, perhaps, be as difficult to afcertain at this day, as the difcovery would be unavailing. They have no doubt all in turn contributed. To endeavour to arreft the evil by removing the caufe has now become the duty of every friend to the peace, happinefs and proSperity of this country. —Deeply impreffed with this important truth, 4 X we •* i4 APPENDIX. 7 we have been prompted no lefs by inclination than duty to render our mite towards the accomplifhment of fo defirable an object. With regard to the claim of the United States. Living under a mild and equal government of our own choice, by which the rights of all are effectually fecured, this State has, in our opinion, nothing to fear from tyranny or injuftice. To maintain our rights, it is neceflary that we fhould underftand them : When known and affert- ed they will, no doubt, be duly refpected. In this examination, it is with pleafure, we acknowledge ourfelves to have been great- ly aided by the abilities and refearches of Mr. Attorney General Lee, Meffrs. Harper, Morfe and Chalmers. Believing that their valuable labors were intended for the ad- vancement of public information, we have taken the liberty to infert many of their obfervations literally, and comment freely on fuch parts as appear to us to be excep- tionable. The better to inveftigate this fubject, it feems to be neceflary to carry back our attention, as Mr. Harper obferves, to the fir ft difcovery of North America, and take a view of the various public acts by which the rights of foil and jurifdiction, to that part of it where the lands in queftion lie, have been affected from that period to the prefent time. Such other tranfactions as it may be neceflary to recur to in other parts of the inveftigation, though they have no immediate relation to this point, will, for the fake of perfpicuity, be noticed in the order in which they occurred. It was a principle admitted by all European nations, in the eftablifhment and regulati- on of their American colonies, that prior difcovery, acompanied by actual occupation, and, in fome cafes, without it, vefted the right of foil and jurisdiction. Spain thus ac- quired her extenfive dominions in South America; and by the fame title fhe laid claim to Florida in the fouthern parts of the North American Continent. England, alfo, by virtue of difcoveries made under her flag in the reign of Henry VII. claimed the whole extent of North America from Florida to Hudfon's Bay. The boundary be- ween her difcoveries and Florida remained for a long time uncertain, and was fre- quently the fubject of difpute between the two crowns. She claimed, however, as far fouth as the latitude twenty-nine \ and Spain at length ceded Florida to her, which put an end to the contention. England made fettlements, at a very early period, in the northern and middle parts of this extenfive region, and erected governments which now compofe the States from Virginia to New-Hampfhire, inclufive. Thefe governments were of two kinds, royal and proprietary. In the former, the right of foil and jurifdiction remained in the crown j and their boundaries, though defcribed by its letters patent, were fubject to alteration at its pleafure: For, as it poffeffed the rights of foil and government, and delegated them to its governors, during pleafure, it might difpofe of them in what manner and to whom it thought fit, might alter, extend, or abridge the delegati- on as its inclination or policy might dictate. In the latter, the proprietary governments, the right of foil as well as jurifdiction was vefted in the proprietors. Their charters were in the nature of grants, and their limits being fixed by thefe charters could not be altered but by their own confent. This diftin&ion is particularly noticed **"*•- % APPENDIX. 715 ticed here, becaufe in the progrefs of the difcuflion it will appear to be of very great importance. Molt of the governments were at firft proprietary; but, in procefs of time, the greater part of them, either by the forfeiture or furrender of the charters, became royal. The firft of thefe charters, under which any fettlement took place, was given by queen Elizabeth to Sir Walter Raleigh in the year 1584*. Like the previous charters from her and Henry VII. to Cabot, Sir Humphrey Gilbert and othersf, it was merely a commiffion to difcover any countries not occupied by chriftian people, to take pofleflion of them, and form fettlements under the allegiance of the crown of England. It alfo prohibited any other perfons from fettling within two hundred miles of any place where he fhould form a fettlement, " within fix years." Under this charter he made two fettlements: One fouth of the Chefapeake, compofed of about one hundred perfons, who arrived in June 1585, and returned to England in the June following: The other near the mouth of James' River, and confiding of about the fame number of fettlers, who arrived in the year 1587, and continued there. In the title of the charter it is faid, that it fhall continue in force for fix years, and no more; but in the body of it there is no limitation. In the year 1603J, however, it was forfeited by the attainder of Sir "Walter Raleigh, for treafon, and the right re-vefted in the crown. In the year 1606, James I. by letters patent dated April io§, gave permifEon to two companies to form fettlements on any part of the coaft of North America, between latitudes 34 and 45. Thefe companies were denominated the firft and fecond colonies of Virginia: The firft was to make its fettlements between 34 and 41 degrees of latitude, the fecond between 38 and 45. Neither was to fettle within two hundred miles of any place previoufly fettled by the other. Each was to poffefs all the lands along the coaft fifty miles in both directions from the place of its firft fettlement, one hundred miles back into the country, and all the iflands within one hundred miles of the coaft. A council was appointed for the government of each colony, and it was provided that all the lands contained within the above mentioned limits ftiould, on petition to the crown, be granted to fuch perfons as the refpe&ive councils (hould recommend. It does not appear that any fuch grants were ever made; but James I. by letters patent, dated May 23, 1609H, feparated the firft colony from the fecond, and, on the petition of the perfons compofing it, erected them and a number of others into a cor- poration under the name of " the treafurer and company of adventurers and planters *' of the city of London, for the firft colony of Virginia." All the lands along the coaft, two hundred miles fouth, and an equal diftance north, of Point-Comfort, and extending weft to the South-Sea, with the iflands within one hundred miles of the coaft, were granted to this company, commonly called the London company, and their • Hazard's Collection, State I. 33. J Trials, Vol. p. 186. || Same Collection, 58. f Same Collection, 9, II, 04. <j Hazard's Collection, 50. 7 i<S APPENDIX. • their fuccefibrs, in fee fimple; in truft however, to be diftributed among fettlers: And the powers of government were veiled in two councils, one in England, and one in America. Point-Comfort being about latitude 36, 30, the limits of this charter muft have extended fouth to about latitude 33. It is not eafy to determine whether the government erected by it ought to be confidered as royal or proprietary; but it has more the appearance of the former.

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