Commentaries on the Constitution of the United States (1833)

by Joseph L. Story



§ 143. In the same year, in which Carolina was divided [1732], a project 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, etc. 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 corporation 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 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 obviously intended 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.4 It continued to languish, until at length the trustees, wearied with their own labours, and the complaints of the people, in June, 1751, surrendered the charter to the crown.5 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.6

§ 145. In respect to its ante-revolutionary jurisprudence, a few remarks may suffice. The British common and statute law lay at the foundation.7 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 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.


     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.
     4.    Marshall’s Colon. ch. 9, p. 248, 249, 250; 2 Holmes’s Annals, 4-45. 2 Hewatt’s South Car. 41, 42, 43.
     5.    2 Holmes’s Annals. 45.
     6.    Stokes’s Hist.of Colonies, 115, 119;2 Hewatt’s South Car. 145; 2 Holmes’s Annals, 45,117.
     7.    Stokes’s Hist.of Colon. 119, 136.