USA > Tennessee > Williamson County > History of Tennessee, from the earliest time to the present; together with an historical and a biographical sketch of Maury, Williamson, Rutherford, Wilson, Bedford and Marshall counties, besides a valuable fund of notes, reminiscences, observations, etc., etc. Vol. 1 > Part 42
USA > Tennessee > Maury County > History of Tennessee, from the earliest time to the present; together with an historical and a biographical sketch of Maury, Williamson, Rutherford, Wilson, Bedford and Marshall counties, besides a valuable fund of notes, reminiscences, observations, etc., etc. Vol. 1 > Part 42
USA > Tennessee > Rutherford County > History of Tennessee, from the earliest time to the present; together with an historical and a biographical sketch of Maury, Williamson, Rutherford, Wilson, Bedford and Marshall counties, besides a valuable fund of notes, reminiscences, observations, etc., etc. Vol. 1 > Part 42
USA > Tennessee > Wilson County > History of Tennessee, from the earliest time to the present; together with an historical and a biographical sketch of Maury, Williamson, Rutherford, Wilson, Bedford and Marshall counties, besides a valuable fund of notes, reminiscences, observations, etc., etc. Vol. 1 > Part 42
USA > Tennessee > Bedford County > History of Tennessee, from the earliest time to the present; together with an historical and a biographical sketch of Maury, Williamson, Rutherford, Wilson, Bedford and Marshall counties, besides a valuable fund of notes, reminiscences, observations, etc., etc. Vol. 1 > Part 42
USA > Tennessee > Marshall County > History of Tennessee, from the earliest time to the present; together with an historical and a biographical sketch of Maury, Williamson, Rutherford, Wilson, Bedford and Marshall counties, besides a valuable fund of notes, reminiscences, observations, etc., etc. Vol. 1 > Part 42
USA > Tennessee > History of Tennessee from the earliest time to the present , together with an historical and a biographical sketch of from twenty-five to thirty counties of east Tennessee, besides a valuable fund of notes, original observations, reminiscences, etc., etc. V. 1 > Part 42
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The Territorial Assembly, soon after its organization in 1794, passed an act establishing courts, but it was little more than a confirmation of those already in existence, with the exception that provision was made for the appointment of a State's attorney in each county. No change was made in the judges, and they continued to hold their office until the admission of Tennessee as a State, 1796. The constitution adopted in that year did not establish any courts, but left the matter entirely to the Leg- islature. The following is the article relating to the judiciary:
ARTICLE V.
SECTION 1. The judicial power of the State shall be vested in such superior and in- ferior courts of law and equity as the Legislature shall from time to time direct and estab- lish.
*This district, for some reason not satisfactorily known, was named for a Spanish officer residing in the " Mississippi Country," with whom the Cumberland settlements had some sort of dealings and disagreements.
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SEC. 2. The General Assembly shall by joint ballot of both houses appoint judges of the several courts of law and equity, also an attorney or attorneys for the State who shall hold their respective offices during good behavior.
SEC. 3. The judges of the superior courts shall at stated times receive a compensa- tion for their services to be ascertained by law, but shall not be allowed any fees of office, nor shall they hold any other office of trust or profit under this State, or the United States.
SEC. 4. The judges of the superior courts shall be justices of oyer and terminer, and general jail delivery throughout the State.
SEC. 5. The judges of the superior and inferior courts shall not charge juries with respect to matters of fact, but may state the testimony and declare the law.
SEC. 6. The judges of the superior court shall have power in all civil cases to issue writs of certiorari to remove any ease or transcript thereof, from any inferior court of re- cord into the superior, on sufficient cause supported by oath or affirmation.
SEC. 7. The judges or justices of the inferior courts of law shall have power in all cases to issue writs of certiorari to remove any case or a transcript thereof from any inferior jurisdiction, into their court on sufficient cause supported by oath or affirmation,
SEC. 8. No judge shall sit on the trial of any cause wherein the parties shall be con- .
nected with him by affinity or consanguinity, except by consent of the parties. In case all the judges of the superior court interested in the event of any cause, or related to all or either of the parties, the governor of the State shall in such case specially commission three men of law knowledge for the determination thereof.
SEC. 9. All writs and other processes shall run in the name of the State of Tennessee and bear test and be signed by the respective clerks. Indictments shall conclude "against the peace and dignity of the State."
SEC. 10. Each court shall appoint its own clerk, who may hold office during good ยท behavior.
SEC. 11. No fine shall be laid on any citizen of the State that shall exceed fifty dol- lars, unless it be assessed by a jury of his peers, who shall assess the fine at the time they find the fact, if they think the fine ought to be more than fifty dollars.
SEC. 12. There shall be justices of the peace appointed for each county, two for each captain's company, except the company which includes the county town, which shall not exceed three, who shall hold their office during good behavior.
The failure of this constitution to establish any court may justly be considered as one of its weakest points. A supreme court which owes its existence to the legislative body, and which at any time by the re- peal or the amendment of a single act might be altered or abolished, could scarcely be expected to retain its independence, nor could it be ex- pected to endanger its own life by calling into question the validity of a law. For such a court to pronounce an act unconstitutional would be useless, as the Legislature, having a sufficient majority to pass such an act, would upon any question of importance, have a majority to repeal the law creating the court itself. The danger from this was manifested in several instances, and was one of the strongest arguments in favor of the adoption of the new constitution in 1834. In 1829 a controversy arose between the judiciary and the Legislature, and the result was the introduction of a bill which, had it become a law, would have abolished the then existing supreme court. The bill failed to pass by a single vote.
The first General Assembly convened on the 28th of March, 1796,
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and soon after passed an act establishing a superior court of law and equity, and a court of pleas and quarter sessions, and defining their jurisdiction and mode of procedure, which did not differ materially from that of the courts under the authority of North Carolina and the Territory. In 1806 the district of Mero was divided into three separate and distinct judicial districts. The counties of Robertson, Montgom- ery, Dickson and Stewart were constituted one district by the name of Robertson, for which the courts were held at Clarksville. Jackson, Smith and Wilson Counties were organized into the district of Winchester, and courts were held at Carthage. The remaining counties, Davidson, Sumner, Williamson and Rutherford constituted the district of Mero, with the seat of justice at Nashville. The district of Hamilton had been formed in 1793 from the counties of Jefferson and Knox.
On November 16, 1809, an act was passed abolishing the superior court and establishing circuit courts, a supreme court of errors and appeals in its stead. The former was made to consist of one judge, and was to be held twice annually in each county. It was given the same jurisdiction in all matters in common law and equity as belonged to the former superior court, exclusive jurisdiction in all criminal causes and appellate jurisdic- tion in all cases from the court of pleas and quarter sessions. A solicitor- general and a judge for each circuit were elected by a joint vote of both houses of the General Assembly. The State was divided into five ju- dicial circuits, as follows: First Circuit, Greene, Washington, Carter, Sul- livan, Hawkins, Grainger, Claiborne and Campbell. Second Circuit, Cocke, Jefferson, Sevier, Blount, Knox, Anderson, Roane, Rhea and Bledsoe. Third Circuit, Smith, Warren, Franklin, Sumner, Overton, White and Jackson. Fourth Circuit, Davidson, Wilson, Rutherford, Williamson, Maury, Giles, Lincoln and Bedford. Fifth Circuit, Montgomery, Dick- son, Hickman, Humphreys, Stewart and Robertson.
The supreme court of errors and appeals was made to consist of two judges in error and one circuit judge, and was to be held annually at the following places: Jonesboro, Knoxville, Carthage, Nashville and Clarks- ville. The jurisdiction of this court was appellate only. The act creat- ing these courts went into effect January 1, 1810, and Hugh L. White and George W. Campbell were appointed judges of the supreme court. In 1811 that part of the act which required the attendance of a circuit judge in the court of errors and appeals was rescinded, and it was pro- vided that when the two judges of that court differed, the judgment of the circuit court was to be sustained. By the same act the supreme court was given exclusive jurisdiction in all cases in equity arising in the circuit courts. In 1813 a change was made in the court of pleas
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and quarter sessions, by which five justices were appointed to hold the court, although the county business was transacted as before by all the . magistrates on the first day of the session. New judicial circuits were formed from time to time as new counties were organized. In 1817 the Sixth Circuit was established from the counties of Lincoln, Giles, Maury, Bedford and Lawrence. Two years later the counties of Roane, Rhea, Bledsoe, Marion, McMinn, Hamilton and Monroe were constituted the Seventh Circuit. The counties of Henry, Carroll, Madison, Shelby, Wayne, Hardeman, Hardin and Perry were erected into the Eighth Circuit in 1821. The Ninth Circuit was formed in 1823, from the coun- ties of Perry, Henderson, Carroll and Henry, and all the counties to be , established west of Carroll and Henry. The Tenth Circuit, composed of Wayne, Hardin, McNairy, Hardeman, Fayette and Shelby was formed in 1830. At the same time Warren, Franklin, Bedford, Rutherford and Wilson Counties were constituted the Eleventh Circuit, and Henderson and Perry were attached to the eighth. In 1815 the number of judges of the supreme court was increased to three, and Archibald Roane was appointed as the third judge. A fourth judge was added in 1823, and the following year a fifth. In a few months, however, it was again re- duced to four and so continued until the change in the constitution was made. In 1831 the office of chief justice was created.
As has been stated, the Legislature of 1829 discussed and voted upon a bill amending the judiciary system. The Senate committee in report- ing upon a bill from the House making some changes in the inferior courts, stated that they considered the judiciary system of Tennessee the most expensive and the least efficient of any in the United States. The objections to it as stated by them were "the multiplicity of courts which, either as original or appellete, can take jurisdiction of the same subject matter, the defective mode by which these courts are governed, the great delay of common right to the parties, and the unnecessary expense incurred by the number of courts in which the same cause may be in- vestigated."
The following description of the "law's delay," as given by this com- mittee, leads one to infer that modern law courts are not so degenerate as they are usually considered: "A suit may be commenced before a jus- tice of the peace for a sum not exceeding 50 cents, trial be had thereon, and an appeal taken to the county court; and notwithstanding the small sum in dispute, ambition, spite and other malicious motives frequently operate so as to influence one or both of the parties into a determination to run his adversary into as much cost and trouble as possible. For this purpose lawyers are employed on either side, witnesses are summoned by
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neighborhoods to attend court, often at the most busy season of the year, much to their inconvenience and greatly to the injury of their private affairs. The cause may be continued from term to term for years, during which time ill-will, strife, and party animosity prevail, not only between the parties litigant, but unfortunately, the surrounding neighborhood often engages in feuds in consequence of it. At length the cause is tried in the county court where, in all well regulated governments, it should end so far as relates to matters of fact. But instead of ending there, and re- storing tranquillity to the neighborhood and relieving a host of witnesses who have been drawn from the cultivation of their farms or from pursuit of their ordinary employment, an appeal is taken to the circuit court, where additional fees must be given to lawyers, clerks, sheriffs, consta- bles and jurymen, and the parties have not gained one inch of ground toward terminating their controversy, but must travel over the same ground in relation to law and facts in the circuit court, and if their purses have not increased in size their animosity toward each other has in- creased threefold. An appeal then is taken to the supreme court. Law- yers' and clerks' fees are again to be paid, and should judgment be ob- tained for the plaintiff he may conclude that notwithstanding his road to justice has been tedious, yet he has at length reached the end of his trouble. But even here his hopes, perhaps, are succeeded by disappoint- ment. A bill in equity may be filed in the circuit court or district chancery court and the neighborhood again be disturbed in the taking of depositions. The parties are again compelled to give additional fees to lawyers, clerks and sheriffs. At length the cause is tried before the fifth tribunal. An appeal is again taken to the supreme court from the decree of the chancellor where it is tried a sixth time with additional fees to clerks and other officers."
In estimating the expense of the courts to the State, the committee placed the cost of jurors in the county courts alone at $58,652 per an- num, "an amount more than sufficient to defray the whole expense of our government, including a session of the Legislature each year." The costs in cases taken by appeal to the circuit court are estimated at $46,- 500 annually, and the cost of grand jurors at $30,876.
Previous to 1834 the finding of articles of impeachment against judges and other officers was of quite frequent occurrence. The first case of the kind was that of David Campbell, one of the judges of the supe- rior court of law and equity, impeached in 1503. The articles as pre- sented by the House of Representatives charged him with taking a bribe to the value of $50 from one James Miller, for which he agreed to procure a favorable decision for the latter in a case brought by John Den
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to recover the possession of two tracts of land situated in the county of Knox. The managers on the part of the House were Wharton, Kennedy and Claiborne, who procured Jenkin Whiteside as counsel for the prose- cution. The counsel for the defense was Edward Scott, John Williams and Robert Whyte. The oath was administered to the senators by Hugh L. White, and Senator MeMinn was chosen to preside. After hearing the evidence and the arguments by the counsel a ballot was taken, which resulted in a verdict of not guilty, the vote standing three for conviction and nine for acquittal. Leave was then given to the senators to have the reasons for their votes recorded, when the following were given by John Gass: "My reasons for saying not guilty on the articles of im- peachment exhibited against David Campbell, one of the judges of the superior court of law and equity in this State, are because, if the wit- ness in behalf of the prosecution could have such a corrupted heart as to attempt to bribe a judge to the injury of another man, it is a doubtful case whether the evidence ought to be taken in such latitude as to con- vict any person, therefore as it appears to me to be a doubtful case, if I should err at all, I wish to err on the side of mercy."
In 1811 articles of impeachment were exhibited by the House against William Cocke, judge of the First Circuit. The first two articles charged him with neglecting to hold court on various occasions, and with failing to open and close the sessions of the court properly. The third article charged that "for the corrupt purpose of partiality to his friend," he had refused on one occasion to issue certain writs, to the great injury of the defendant. The case was continued until the next session of the Legislature, when the defendant was acquitted on the first two articles but convicted on the third by a vote of ten to three, and was accordingly removed from his office. One of the most ably contested cases of impeachment in the history of the State was that of Samuel H. Williams, surveyor of the Seventh District of the Congressional Reser- vation. He was charged with having demanded and taken extortionate fees, and with having allowed false entries to be made. The trial was begun during the session of 1821, but was continued at the request of the defendant until the next session of the Legislature in 1822. It was taken up again on July 24, of that year, and continued for nearly a month, when he was found guilty upon four of the eleven articles. The attor- neys for the defense were Jenkin Whiteside, Samuel Houston, Thomas Washington, Alfred Balch and Charles G. Olmstead, while one of the managers on the part of the House was Felix Grundy.
In 1829 articles of impeachment were found against Joshua Haskell, a judge of the Eighth Circuit, charging him with having, on several oc-
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casions, left the court house during the progress of a trial to engage in conversation, business and amusement. The testimony given at these trials throws some light on the character of the courts of those early times and of the houses in which they were held. During the trial of Judge Haskell a witness testified that the house in which the court was held in one of the counties was a very uncomfortable one-"occupied by hogs during the recess of the court and infested with fleas." Another witness, an attorney, stated that during the progress of a certain trial the judge was off the bench from between 9 and 10 o'clock until 12 o'clock, and that upon another occasion during the argument of the counsel, the judge went with him outside of the court house and ate a part of a watermelon-a doubtful example of judical dignity. Gabriel Fowlkes testified that at one time during a trial he was sent for the judge, and found him "either at the show or in the court house yard;" he was not positive at which place. During the progress of this trial a difti- culty arose between the counsel employed as to the admissibility of testi- mony; the question was referred to a disinterested attorney, the judge being absent, who gave a decision, and the cause progressed. Judge Haskell, however, seems to have been a universal favorite on his circuit, and notwithstanding the testimony he was acquitted of the charge, the vote of the Senate being equally divided.
In 1829 N. W. Williams, judge of the Third Judical Circuit, was tried upon charges of neglect of official duty. One of the articles of impeachment charged that "while Hopkins L. Turney, an attorney of , that court, was arguing before him a certain civil suit concerning an In- - dian reservation, which suit then and there was and had been on trial for one day, he, the said judge, unmindful of the duties of his office and his obligation to perform them faithfully and impartially to the best of his skill and ability, did carelessly, negligently and unlawfully go to sleep and continue asleep for the space of one hour; waking from his sleep he inquired what suit it was, and being told by said attorney, said he was related to some of the parties, and could not sit in that case." Charges of partiality were also preferred against him. He was acquitted, and it was generally believed that the prosecution was inspired by the animosity of some of the attorneys who practiced before him.
The new constitution of 1834 made no radical change in the judicial system then in existence, but the supreme court was rendered indepen- dent of the Legislature by embodying provision for its establishment in that constitution. For the purpose of comparison, the article relating to the judiciary is given in full:
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ARTICLE VI.
SECTION 1. The judicial power of this State shall be vested in one supreme court, in such inferior courts as the Legislature shall from time to time ordain and establish, and the judges thereof, and in justices of the peace. The Legislature may also vest such juris- diction as may be deemed necessary in corporation courts.
SEC. 2. The supreme court shall be composed of three judges, one of whom shall re- side in each of the three grand divisions of the State; the concurrence of two of said judges shall in every case be necessary to a decision. The jurisdiction of this court shall be appellate only, under such restrictions and regulations as may from time to time be prescribed by law; but it may possess such other jurisdiction as is now conferred by law on the present supreme court. Said court shall be held at one place, at one place only, in each of the three grand divisions in the State.
SEC. 3. The General Assembly shall, by joint vote of both houses, appoint judges of the several courts of law and equity: but courts may be established to be holden by jus- tices of the peace. Judges of the supreme court shall be thirty-five years of age, and shall be elected for the term of twelve years.
SEC. 4. The judges of such inferior courts as the Legislature may establish shall be thirty years of age, and shall be elected for the term of eight years.
SEC. 5. The Legislature shall elect attorneys for the State by joint vote of both houses of the General Assembly, who shall hold their offices for the term of six years. In all cases when an attorney for any district fails or refuses to attend and prosecute according to law, the court shall have power to appoint an attorney pro tempore.
SEC. 6. Judges and attorneys for the State may be removed from office by a concur- rent vote of both houses of the General Assemby, each house voting separately, but two- thirds of all the members elected to each house must concur in such vote; the vote shall be determined by aves and noes, and the names of the members voting for or against the judge or attorney for the State, together with the cause or causes of removal, shall be entered .on the journals of each house, respectively. The judge or attorney for the State, against whom the Legislature may be about to proceed, shall receive notice thereof, accompanied with a copy of the cause alleged for liis removal. at least ten days before the day on which either house of the General Assembly shall act thereupon.
SEC. 7. The judges of the supreme and inferior courts shall, at stated times, receive a compensation for their services, to be ascertained by law, which shall not be increased or diminished during the term for which they are elected. They shall not be allowed any fees or perquisites of office, nor hold any other office of trust or profit under this State or the United States.
SEC. 8. The jurisdiction of such inferior courts as the Legislature may from time to time establish shall be regulated by law.
SEC. 9. Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law.
SEC. 10. The judges or justices of such inferior courts of law as the Legislature may establish shall have power in all civil cases to issue writs of certiorari to remove any cause or transcript thereof, from any inferior jurisdiction, into said court on sufficient cause, supported by oath or affirmation.
SEC. 11. No judge of the supreme or inferior courts shall preside in the trial of any cause in the event of which he may be interested or where either of the parties shall be connected with him by affinity or consanguinity within such degrees as may be prescribed by law, or in which he may have been of counsel or in which he may have presided in any inferior court, except by consent of all the parties. In case all or any of the judges of the supreme court shall be thus disqualified from presiding on the trial of any cause or causes the court or the judges thereof shall certify the same to the governor of the State, and he shall forthwith specially commission the requisite number of men of law knowledge for the trial and determination thereof. In case of sickness of any of the judges of the su- premie or inferior court so that they, or any of them, are unable to attend, the Legisla-
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ture shall be authorized to make provision by general laws that special judges may be ap- pointed to attend said courts.
SEC. 12. All writs and other processes shall run in the name of the State of Tennessee, and bear test and be signed by the respective clerks. Indictments shall conclude "against the peace and dignity of the State."
SEC. 13. Judges of the supreme court shall appoint their clerks, who shall hold their offices for the period of six years. Chancellors (if courts of chancery shall be established) shall appoint their clerks and masters, who shall hold their offices for a period of six years. Clerks of such inferior courts as may be hereafter established, which shall be required to be holden in the respective counties of the State, shall be elected by the qualified voters thereof for the term of four years. They shall be removed from office for malfeasance, incompetency or neglect of duty in such manner as may be prescribed by law.
SEC. 14. No fine shall be laid on any citizen of the State that shall exceed fifty dol- lars, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact, if they think the fine should be more than fifty dollars.
SEC. 15. The different counties in the State shall be laid off, as the General Assembly may direct, into districts of convenient size, so that the whole number in each county shall not be more than twenty-five, or four for every one hundred square miles. There shall be two justices of the peace and one constable elected in each district by the qualified voters therein, except districts including county towns, which shall elect three justices and two constables. The jurisdiction of said officers shall be co-extensive with the county. Justices of the peace shall be elected for the term of two years. Upon the removal of either of said officers from the district in which he was elected his office shall become va- cant from the time of such removal. Justices of the peace shall be commissioned by the governor. The Legislature shall have power to provide for the appointment of an addi- tional number of justices of the peace in incorporated towns.
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