USA > Tennessee > History of Tennessee the making of a state > Part 15
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new State. But it is not true that he suggested a name which otherwise might not have been adopted. The ter- ritory south of the river Ohio was already very generally known as the Tennessee country. In Bishop Asbury's diary, under date of May, 1788, he makes an entry as in " Tennessee." The convention met in 1796. Winter- botham's " America," an old history published at London in 1795, contains a map on which the Cherokee River has given place to the Tennessee River, and the Territory is noted as the " Tennassee Government." 1
The convention adjourned on the 6th of February, 1796. On the 28th of March following, the first General Assembly of the State of Tennessee met at Knoxville. John Sevier, of course, was found to have been elected governor. William Blount and William Cocke were elected to the United States Senate.
But for one drawback the new State would have moved off like newly set machinery. well balanced and fitly organ- ized and adjusted, without a jar or a creak. This draw- back came from an unexpected quarter, and raised a storm among those who had just been congratulating them- selves on the success of the movement. Having the ex- ample of Kentucky before their eyes, Blount, MeNairy, Jackson, Anderson, Cocke, and other leading members of the convention had a particular regard for what they considered the utmost possible requirements of technical regularity. Only after repeated conventions had Ken- tueky been allowed to become a state, and only then when it appeared that insurrection might be the result of fur- ther hindrance. When, therefore. the news came to Knoxville that in the Senate of the United States the bill admitting Tennessee as a state had been adversely re- ported, there was a momentary lull. followed by a storm
1 This map, prepared evidently with great care, though not abso- lutely accurate, is the best I know of Tennessee at that period of its history.
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that swept from Jonesboro to Nashville, carrying with it even those who had voted against it at the ballot-box. For a time the question assumed serious proportions and threatened to convulse the country. The balance of power, as a determinative principle in the admission of states, had not yet attained the full development of later years, when slavery became a deeply-rooted institution : but it was there, and derived an increased vitality, not only from the local prejudices existing between North and South, but also from the fear on the part of the older States that their power might ultimately slip from them and fall to the share of those yet to be created.
The chief ground of opposition to the admission of Tennessee was that it was " necessary for Congress to lay out and form the Territory into one or more States, and that the proof of their numbers should have been given under direction and by order of Congress, the people not being competent to give proof themselves." In the House, the right of admission was supported by Nathaniel Macon, James Madison, and Albert Gallatin. It was carried by a vote of forty-three to thirty. In the Senate, the bill passed by the casting vote of Mr. Livermore, acting president, who was severely criticised for his action. Underlying every other motive was that of party interest ; the Fed- eralists opposed the admission of Tennessee, knowing its electoral vote would be given to Mr. Jefferson in the ap- proaching election. Chauncey Goodrich, in a letter written to Oliver Wolcott (Senior), said, referring to Livermore's vote, " It must be left for him to account for his conduct ; his friends are chagrined. It is possible this act may have some serious effect." Again he says : " No doubt this is but one twig of the electioneering cabal for Mr. Jefferson."
In the mean while Governor Sevier had called an extra session of the legislature to obviate all questions as to the validity of acts done by Tennessee before the date of its
ADMISSION TO THE UNION.
formal admission to the Union. Blount and Cocke we again elected. the former in his letter of acceptance referring to the quibbles resorted to in order to deprive Tennessee of its equal share of representation. Andrew Jackson was elected to Congress. The mode of eleeting presidential electors was regulated. Thus finally Tennes- see became a State of the Union, on the first of June, 1796.
CHAPTER XXI.
TENNESSEE INSTITUTES.
IN every organized society there are certain fundamen- tal duties which are common to all governments. On these, which are a substratum, each nation has built a superstructure peculiarly its own. This superstructure of customs, this edifice of local institutions, makes the dif- ference which exists among the nations of the earth. Customs and laws differ as languages differ. There is a Grimm's Law in the study of economic institutions as well as in the study of the Indo-Germanic languages. But each nation speaks its own tongue, each locality has its fine variations of phrase, each individual his peculiarities of speech. In like manner. each nation has its individual customs and laws, each precinct its traditional institu- tions, each town its own system of minutely varied self- government. To apply the old and beautiful illustration, the bits of glass in the kaleidoscope are the same, but each nation shakes the box and we behold each time a new arrangement of pleasing figures, delicate colors, and graceful results.
The study of philology itself has not done more to establish the kinship of races than the study of govern- mental institutions. If all books and manuscripts bearing on the history of England from the twelfth century to the present time were lost, there would be no difficulty in establishing the fact that America is peopled by descend- ants of the same race that then inhabited England. And this is true, although the attention of students has only
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within the last few years.been turned to the study of this subject. But even what has been done has already formu- lated as a general law the absolute continuity of political institutions. There are changes and modifications, re- adaptations and revivals, but rarely a new invention. The essayists of Johns Hopkins University have, in the study of New England townships, pointed out the sur- vival of old Anglo-Saxon institutions that have been lost even in the old England of to-day.1
The institutions, both general and local, of American States are, with the exception of Louisiana parishes, directly derived from Anglo-Saxon and English sources. A wide breach is popularly supposed to have taken place at the Revolution, and since then we are generally sup- posed to have invented an entirely new and original set of laws and institutions for ourselves. It is this popular error which later investigation is rapidly breaking down.
Nowhere is the chasm popularly supposed to exist be- tween the laws of England and the laws and institutions of this country so palpably and clearly bridged as in the case of Tennessee. In 1792 Francis Xavier Martin pub- lished, " according to a resolve of the General Assembly," " a collection of the Statutes of the Parliament of Eng- land, in force in the State of North Carolina."
The legislative authority for Martin's book is a recogni- tion of the right by descent which the people of North Carolina and of this State have to the store of legal wis- dom in the common magazine of Teutonic, Anglo-Saxon, and English traditions and precedents. An aet passed in North Carolina in 1715 enacts that the common law is
1 The author takes this opportunity of paying his tribute of re- spect to the new school of historical investigation, which, under the careful and scholarly editorship of Professor Herbert B. Adams, is introducing the same comparative methods into the study of American history which have been fruitful of the best results in Germany and England.
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and shall be in force in this government, except such part in practice in the issuing and return of writs and proceed- ings in Westminster which for want of several officers cannot be put into execution. In 1778 we find another act on the same subject. " All such statutes and such parts of the common law as were heretofore in force and use within this Territory which are not destructive of, re- pugnant to, or inconsistent with the freedom and inde- pendence of this State and the form of government therein established and not otherwise provided for, are hereby declared to be in full force within this State." The courts of Tennessee have time and again decided that the common law is still in force in this State, with such conditions and limitations as we find in North Caro- lina.
The general organization of the machinery of state in Tennessee is directly derived from England, but those changes and modifications necessary to adapt English forms to the needs of American society which were made in the original colonies were, in our ease, made in North Carolina. When the first constitution was adopted. it was practically the constitution then in force in North Caro- lina, and showed the influence of the colonial develop- ment of that State. In the grant of 1663 the king had been careful to reserve the colonists a voice in the fash- ioning of the laws by which they were to be governed. The lords proprietors themselves were not a new inven- tion, but were merely the grantees of a monopoly differ- ing in no legal respect from those that had been causes of contention between the English people and their sov- ereigns from the time of William the Conqueror. The difference was found in the monopoly itself, which, instead of being salt or woolen cloth. was land. The attempt to people this land under their supervision brought into play the same forces and factors that were and had been working in England under the supervision of chiefs, head-
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men and kings from the times of the earliest Angle inva- sions. As a governmental incident, the proprietors were foreign to anything known to English law. Indeed, they made no attempt to govern otherwise than through the regular channels. They were not the centre. This was the governor or governor-general whom they appointed, and apart from a few appointments, their interference was clearly in the nature of a revolution. One of the clearest proofs of this faet was the reserved veto power. In a manifesto issued by the proprietors, shortly after they obtained the grant, they set forth their intention of appointing a governor and council from among the colo- nists, " to see the laws of the Assembly put in due execu- tion."1 The Assembly itself was to be elected by the colonists, with the sole power of making laws and laying taxes for the common good when need should require. The council consisted of six, and subsequently twelve mem- bers. Of these, six were appointed by the governor, and six elected by the General Assembly. This was a combi- nation of the English Cabinet and the Privy Council and the upper house of Parliament, being also a constituent part of the General Assembly.2
Subsequently, the number of councilors was reduced to six and these, with the governor, constituted the upper house of the General Assembly, which, before this, con- sisted of but one body. The House of Burgesses, whose meetings were biennial, was elected by borough franchise. The qualifications of the voters were, allegiance to the king, white color, twenty-one years of age, a year's resi- dence in the province before voting, and the payment of
1 This provision was never apparently carried out, the governors being appointed regardless of any expression of preference on the part of the colonists.
2 This, perhaps, is the precedent which suggested to the framers of the federal constitution the device of giving the Senate a semi- executive function in the matter of appointments, treaties, etc.
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at least one levy of taxes. A quorum was one half of all the members. The province itself was divided into pre- cinets for judicial purposes and into parishes for religious purposes. The judiciary consisted of the general court, the chancery court, the precinct conrts, and the courts of oyer and terminer. The judges of the general court were eight -one chief justice and seven others. The former was appointed by the voice of all the lords proprietors, and the latter were appointed by them individually, each assistant judge being also a deputy of the lord proprie- tor from whom he received his commission. Subsequently this right appears to have been waived by the proprietors, the number of judges being reduced to three, one chief justice appointed by the lords proprietors, and two as- sistants by the governor and council, who also nominated an attorney-general. The clerk was elected by the court. The jurisdiction of the court extended to all parts of the province and included all cases both civil and criminal, with the exception of cases where the smallness of the amount claimed gave che lower courts exclusive jurisdic- tion, which could only be when both parties lived in the same precinct. Original suits were begun by writs, served by the provost marshals, of whom there was one in each precinct, appointed by the governor. In addition to its original jurisdiction, the general court had also appellate powers for the correction of errors below. It is signifi- cant that on several occasions appeals to the king in council were refused by this court. The chancery court consisted of the governor and the councilors. The usual practice was upon bill and answer, and testimony was given only in depositions. The court of over and ter- miner, the origin of our "criminal docket of the circuit court," and of our criminal courts where such are estab- lished, was the criminal docket of the general court.1
1 Two instances, in 1722 and 1729, are of record of this court being held by order of the governor and council. In each case the
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Proceedings were begun either by indictment, brought in by a grand jury for the precinct where the offense was committed, or by information from the attorney-general.
Such were, in outline, the prominent features of the government originally established in North Carolina, each of which was taken in full development from England, and each of which under some name and in some guise still exists in Tennessee. It is but necessary to read an indictment in a court of oyer and terminer, or to follow the pleadings of a case in the general court, to understand the origin of Tennessee jurisprudence. There were sub- sequent changes, but they were, for the most part, imma- terial. After the cession of the colony to the crown in 1729, the governor and a council of seven were appointed by the king. The governor and three of the council made a quorum. In 1738 the precincts were changed to counties. Sheriffs were appointed in place of marshals. The office of provost marshal of the province was abol- ished. Circuit courts were established, taking the place of the general court in so far as its jurisdiction was origi- nal both for the trial of civil causes and as the court of oyer and terminer. The powers of the county, formerly precinct court, were enlarged. In 1740 was passed an act to appoint able and skilful clerks for the several courts within this province and for the better securing and safe-keeping the records of the same.
An attempt made in 1754 to establish the supreme courts of justice, oyer and terminer and general gaol delivery miscarried, the acts for this purpose being re- pealed by proclamation. In 1762, however, an act became a law dividing the province of North Carolina into five several districts and establishing a superior court of jus- tice in each of the said districts and regulating the pro-
person tried was an Indian. It is very likely chat Indians, being as a rule the inhabitants of no particular precinct, could only be tried by a special court.
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ceedings therein. In 1774 another act established courts of oyer and terminer and general gaol delivery, consti- tuting the judges thereof a court for hearing and deter- mining appeals and writs of error. In 1777 the State was divided into six districts, one of which was Salisbury, a part of this judicial district being the geographical district of Washington or Tennessee. Here we see the laws of Carolina in the very act of crossing the bound- aries of this State. In each district was a superior court of three judges who appointed a clerk. This act also pro- vides that all suits for breaches on penal statutes and the like, directed to be prosecuted in the name of the King of Great Britain, shall be prosecuted and proceeded on in the name of the State, in like manner as if such suits had been begun in the name of the State. Here, as in the constitution of 1776, we see the transfer of sovereignty as distinctly as if it were an estate passed from grantor to grantee in livery of seizin.
If now we examine the constitution of 1776 we shall find that it has introduced absolutely not a single feature into North Carolina institutions with which we are not already familiar. The complete breaking loose from old landmarks, the introduction of a new and original system whose salient points are antagonistic to all the despotic and autocratic ordinances of English government are no- where to be found. It is true, a great deal that was not serviceable has been discarded, but it is merely obsolete. It is not destroyed, and at any moment the same conjunc- tion of circumstances that rendered it necessary and use- ful in England may again quicken it into renewed life and vigor in America. The greatest change has taken place in exactly those institutions which are popularly supposed to have copied most nearly the English model. The Governor, Senate, and House of Representatives are as far from being the King, House of Lords, and House of Commons as a bank of clouds is from being a camel.
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The King has no executive power. The Governor has. Parliament is omnipotent. The General Assembly can legislate only upon a very limited number of subjects. The King is a constituent part of Parliament ; the Gov- ernor is distinctively the executive factor as opposed to the legislative. The Governor now has the veto power ; the King has lost it. The sovereignty of the English peo- ple is in Parliament ; with us it is in the constitutional con- vention, and even then with the limitations provided by the federal compact. The executive power in England lies in the hands of the cabinet. The House of Lords has certain judicial powers. The Senate has absolutely none, except in cases of impeachment. The constitution of North Carolina of 1776, which is also, with a few varia- tions, the constitution of Tennessee of 1796, rested the legislative authority in two distinct branches, a Senate and a House of Commons, called as a body the General Assembly. The Senate was composed of representatives annually elected, one for each county.1 Members of the lower house were to be elected annually by ballot. ac- cording to the principle of borough-representation, two for each county and one each for the six larger towns. Each senator must have resided one year previous to his election in the county that elects him, in which he must also possess three hundred acres of land in fee. Each member of the lower house must have resided one year immediately preceding his election in the county he rep- resents, and must also have possessed in the same county one hundred acres of land in fee or for the term of his
own life, for six months preceding his election. The Senate and House of Commons each have the power to elect their own speaker and other officers, and be judges of the qualifications and elections of their members. The General Assembly, by joint ballot of both houses, ap-
I The prevalence of the idea of proportionate representation dates from the federal constitution of 1787.
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points judges of the superior courts of law and equity, judges of admiralty, and an attorney-general, who shall be commissioned by the governor and hold their offices during good behavior. The Senate and House of Com- mons, jointly, at their first meeting after each annual election, shall by ballot eleet a governor for one year, who shall not be eligible to that office longer than three years, in six successive years. No person under thirty. and who has not been a resident in this State above five years, and having in the State a freehold in lands and tenements above the value of one thousand pounds, shall be eligible. The Senate and House of Commons, at the first session after their annual election, shall elect by bal- lot seven men as a "council of state," for one year, who shall advise the governor in the execution of his office. Four members make a quorum. Their advice and pro- eeedings shall be entered in a journal to be kept for that purpose and signed by the members present, to any part of which any member present may enter his dissent. And such journal shall be laid before the General Assembly when called for by them. The governor, by and with the advice and consent of the "council of state," may lay embargoes, grant reprieves and pardons, and appoint offi- cers to fill unexpired terms. In case of his death, he is succeeded first, by the speaker of the Senate, and in case of his death, inability, or absence from the State, the speaker of the House of Commons. The General As- sembly shall by joint ballot annually appoint a treasurer or treasurers of the State, and triennially elect a secre- tary of state. All indictments shall conclude "against the peace and dignity of the State."
The plan of government devised for the territory north- west of the river Ohio, the provisions of which were extended to the territory south of the river Ohio in 1790, was temporary both in its nature and its effects. The entire Territory was made one district. The exec-
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utive office was filled by a governor appointed by Con- gress, who was commander-in-chief of the militia. There was a secretary whose duty it was to keep the acts and laws passed by the legislature, the public records. the executive acts of the governor, and transmit copies of the documents every six months to the secretary of Congress. In the absence of the governor, he performed that officer's duties. There was also a court consisting of three judges having a common law jurisdiction. It was the duty of the governor and judges, or a majority of them, to adopt and publish in the district such laws of the original States, criminal and civil, as might be necessary, until the organ- ization of the General Assembly.
Tennessee, or the Territory south of the river Ohio, lived under this scheme of government from 1789 to 1794, when the first General Assembly met. It had been pro- vided that as soon as there were 5,000 free male inhab- itants of full age in the Territory, representatives should be elected to a General Assembly, one representative for every 500. A legislative council, modeled upon the old council of the Southern States, was to be a constituent part of the General Assembly. The number of these coun- cilors was five. These were selected by the president from ten names submitted to him by representatives, and held office for five years. The council performed gener- ally the functions of the Senate as we now have it. Thus we see that institutionally the Senate or Upper House of the representative body in Tennessee is the lineal descend- ant, as well of the English Cabinet as of the Ilouse of Lords. The first session of the General Assembly under the territorial form of government was held at Knoxville, August 26, 1794. The constitutional convention met in 1796, and made such changes in the North Carolina con- stitution as were commensurate with the progress of demo- cratic ideas in America, giving less power to the represen- tatives of the people and more to the people themselves,
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but leaving the seed of future dissensions in the election of county officers and the taxation of land which were not healed until the constitutional convention of 1834. One of the main features of the constitution of 1796 is the ap- pointment by the General Assembly of state and judicial officers and by the county courts of county officers. The governor is to be elected biennially by the people instead of the General Assembly. The council of state disappears. The freehold qualifications of fifty aeres for voters is changed to any freehold whatsoever. The principle of proportionate representation takes the place of borough representation. A treasurer or treasurers and a secretary of state are to be appointed by the General Assembly. The provisions relating to the judiciary are drawn chiefly from the precedents of North Carolina. The judicial power of the State is to be vested in such superior and inferior courts of law and equity as the legislators shall from time to time direct. The judges are to be elected by the General Assembly and also an attorney or attorneys for the State who hold office during good behavior. The judges of the superior court are also to be justices of over and terminer and general gaol delivery throughout the State. Clerks are to be appointed by the courts.
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