State v. Campbell

1 Charlton 166

• Court: Chatham Superior Court, Ga.
• Decided: May 15, 1808
• Status: Published

Opinion

Charlton, Judge.

. _ When the American colonies were first settled by our ancestors, it was held as well by the settlers, as by the judges and lawyers of England, that they brought hither as a birthright and inheritance, so much of the common law as was applicable to their local situation and change of circumstances. But each colony judges for itself what parts of the common law were applicable to its new condition, and in various modes, by legislative acts, by judicial decisions, or by constant usage, adopted some parts and rejected others. 2 Dal. 394.

In 1732 this state was settled by James Oglethorpe, and the 116 persons who came over from England with him ; and from that period the colonization of Georgia is to be dated. From that period we began to adopt such parts of the common and statute laws of England, as were applicable to the then relations of the colony. The government of the trustees assimilated itself, in the tenure of lands, to the feudal system, and in that respect deprived our ancestors of many of the benefits which they would have derived from the laws of England ; but the penal code of the mother country was still in force to the utmost that it could be applied to the relations of an infant colony.

Was the statute 9 Geo. 1, ever in force in this state as a colony, a province, or an independent republic ? Is it applicable to our present relations ?

It was observed by Mitchell and Bulloch, that the statute of 9 Geo. 1, never could have been in force, because that statute, as is discoverable from the preamble and the context, is founded upon a tender solicitude for the amusement and property of the aristocracy of England. It was made to protect from the violation or profanation of the people, the forest of his majesty or the park of the peer. How then could it apply to a country which was but one extended forest, in which the liberty of killing a deer, or cutting down a tree, was as unrestrained as tjie natural rights of the deer to rove, or the tree to grow : and where was the aristocracy whose privileges were to be secured ?

In this view of the statute, there was nothing left for its provisions to operate upon in this state. It was therefore a local state, fit only for the internal polity of England.

I accede to this construction. It is very evident from the reasons stated, that this statute was not applicable to the relations of the colony at its first settlement, and if not applicable at that period, its subsequent operation must depend upon some legislative or judicial recognition of it, neither of which can be found.

None of our reviving statutes can comprehend it by the utmost stretch or latitude of construction. They refer to those statutes and principles of English law, which were applicable and in force. The intention of the 9 Geo. 1, has been sufficiently explained ; that intention is deducible from the preamble, and the preamble of an act is in general a good mark to come at the meaning of the legislature. I am disposed, in this case, to resort exclusively to the preamble for the intention; for this law is not only penal to a feudal degree, but it is productive of tyranny. I shall give my consent to narrow the construction. 1 Durn. and East, 49.

I cannot agree with Mr. Solicitor Leake, that one part of this statute can be considered as applicable, and the rest not so. Mr. East says, that in the construction of that branch of the statute, which refers to malicious shooting at any person, or the rescuing any person in custody for that offence, it has been holden that it has no relation to the preceding part of the clause ; and in confirmation of this he cites the case of Rex 'vs. Arnold, 8 State Trials, 290. 213, as approved by all the judges. 1 East, 412.

This rule of demarkation may be drawn by the English judges, but it cannot be drawn here; we cannot, as it was observed by my brother Mitchell, cull this flower or that flower of the English statutory law, and (to pursue the metaphor) make a pleasant bouquet of the whple.

Mr. Solicitor Leake, for the state. Mitchell and Bulloch, for prisoner.

We must adopt the statute en masse, or not at all: legis- , ,. . , , . . lative wisdom may select, but judicial discretion cannot.

I consider, that our own statute is sufficiently penal to guard against any personal injury or mayhem which may result from malicious shooting, and perhaps the indictment for an assault, with intent to murder, may always inflict a punishment equal to the nature of the offence. This mode of prosecution is recommended in the present case.

It is ordered that the indictment be quashed.