USA > Tennessee > History of Tennessee the making of a state > Part 16
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The first General Assembly of the State met at Knox- ville, March 28, 1796.1 James Winchester was elected speaker of the Senate, James Stuart of the House. Wil- liam Maclin was elected secretary of state. An aet was passed continuing the North Carolina judiciary system and directing the appointment of superior judges. The three districts were Washington, Hamilton, and Mero. and the first judges were John McNairy, Willie Blount,2 and Archibald Roane. In 1806 Mero district was di- vided into three, Winchester, Robertson, and Mero. In
1 This is singular but true. The State was not admitted until three months later.
2 Who declined.
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1807 the number of superior judges was increased to four, of whom at least three were to be present at each term of court, but it was to be so managed that only one of the judges who resided in East Tennessee was to attend the courts in West Tennessee and vice versa.
This was the beginning of the sharp geographical dis- tinetion between the general divisions of the State which is a leading feature of our state government to this day. In 1809 an act was passed establishing a supreme court of error and appeals, and dividing the State into five judi- cial circuits, in each of which was a circuit judge having common law and equity jurisdiction, whose duty it was to hold circuit courts twice a year in each county in his eir- cuit. The judges, both of the supreme court and the eirenit courts, were to be elected by the General Assembly and commissioned by the governor. In 1811 the equity jurisdiction of the circuit court was taken away and given exclusively to the supreme court. The constitutional con- vention which met May 19, at Nashville, and adjourned August 30, 1834, made no radical changes in the judi- ciary as it was constituted at the time it met, but the sheriff, trustee, and register were to be elected by the people instead of the county court. The number of su- preme judges was increased to five. These and a few other changes were the consummation of the reforms which began with the election of Carroll to the governorship.
Institutional changes since 1834 have not been of great moment, except that in 1853 the election of supreme and inferior judges was given to the people. One of the finest illustrations of the striet coincidence between English and Tennessee institutions is the history of equity jurisdic- tion in this State. This is something not known to the common law, having been imported into England by the ecclesiastical and Roman lawyers. It does not fit into institutions derived from the hard, inhuman Anglo-Saxon law. In Tennessee it was long a matter of dispute as to
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whom and to what court should be given the extraordinary powers of chancery. At first they did not exist at all; then they were given to the circuit court, then to the supreme. When it was suggested that chancellors should be ap- pointed, great opposition arose. The discussion was Ha- grant when the convention of 1834 met. The question was finally settled by dividing the State into chancery di- visions and electing separate chancellors. Judges of the circuit court still claim to have equity jurisdiction in many cases.
CHAPTER XXII.
LOCAL SELF-GOVERNMENT.
THE continuity of institutional development which is discovered in the machinery for the general goverment of the State as a whole is even more clearly exemplified when we come to an investigation of the instruments used by the people in the various local communities, and we find here especially a coherent development in the methods of local self-government, which are full of interest for those who wish to study the course of American history and the philosophy of its formation. Among other things, we shall be struck first by the fact that there is a pecul- iarly intimate relation between geographical divisions and the means of self-government exercised by those occupying them and then by the apparent paradox that the smaller and more decidedly differentiated the institution, the less liable to change, modification, or substitution. We shall find that the time which has elapsed since 1584 has in this domain developed nothing new. The present is the logical result of the past. The institutions of England were not made. They grew with the growth of the nation, and it would be as easy for the English and their descend- ants to form and carry out a resolution of being born with black eyes and crisp, curly hair and with the quick and cunning tongue of a Sevillian barber as to change their principles of government and live peaceably under forms foreign to their traditions and their education. The insti- tutions of Tennessee are in every particular English institutions, and though embodied in constitutions and
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legislative enactments, they were as far from being in- vented by the law-making power as the principles con- tained in Magna Charta and the Westminster statutes from being made by the old kings and barons of England. On the contrary, these very statutes are but a kind of winnow- ing process, each successive one discarding what was obso- lete and unnecessary, and adding fresh wheat that had ripened since the last use of the flail. Beginning with, and in fact previous to the reign of Alfred the Great, this has continued to the present time. When a new combina- tion of circumstances has arisen requiring an expedient not in active existence, a return has at once been made to the magazine where that which had been discarded is stored up and it has always been found in a state of per- feet preservation. It would be impossible in a book of this size to make anything like a thorough and satisfactory investigation of this subject. But it will not be amiss or unprofitable, at least, to imitate the earlier settlers of our State, who, being unable to build roads, blazed their way through the woods by occasional strokes of the hatchet. We shall have to be on our guard, however, even in doing so much, lest we be led astray by those who have studied the local institutions of other States. When we begin to get into the dusk of the forests it will be easy enough for us to imagine we see a great many things that in reality are not there and which are merely accidental resem- blances such as we occasionally see in a tangle of vines or cluster of undergrowth.
There are two well defined systems of local government in the United States, one of which has as its centre the town, the other the county. The former is found at its best in New England, the latter in the Southern States. All others oscillate between these two, being in a measure compounded, as in Pennsylvania, or existing side by side in the same State, as in those States which were formed from the Territory northwest of the river Ohio. The
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township system of local government is, in its most salient features, a revival of Præ-Normanie customs and is rather an Anglo-Saxon than an English institution. The main feature is, of course, the direct action of the citizens by popular assembly on matters of local interest rather than through elected representatives. Investigations into the origin of this township system have discovered numerous details showing not merely a revival of the Anglo-Saxon tungemot, but also a resurrection of many peculiarities of Anglo-Saxon land law and official life which after a dor- mant existence or scant livelihood in several English shires were revived in full vigor by the Pilgrims, who were themselves a species of revival of old Saxon and Angle and Jute invaders. The leading fact to be borne in mind in the investigation of Tennessee and Southern institutions of self-government is this : that there is noth- ing here at all resembling anything that existed in Eng- land previous to William the Conqueror, but which failed to survive the Norman Conquest. Everything which we now find in Tennessee we also find in England. But while it or its germ may have been in existence before the date of the various charters in which the Norman kings were forced to confirm to the English their old laws and customs, yet it necessarily existed in England subsequent to that date. The survival of village communities. of land communities, of the tithing-man and the gooseherd in New England has no parallel in Tennessee. The institu- tions of local government in New England and the South are as distinct as two branches, though both be shoots of the same tree. There are several reasons for this marked difference between the settlements of the East and Tennes- see, in the fact that the population of the former spread from towns or plantations or bodies of people, whereas the population of the latter may be said to have grown towards them. In a community of scattered families that system of government was best which regulated most successfully
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the large area over which they were scattered. There can be no doubt that the county organization filled this require- ment. Hence the lower or smaller divisions of self-gov- ernment were never called into requisition. They were practical impossibilities until a time when they were no longer institutional possibilities. Another cause of differ- ence is found in the fact that New England was settled by different bodies of people having a common interest and generally having their lands in common, whereas land in the South was owned by non-resident corporations or pro- prietors, the title of which, in the main, was only parted with to individuals. The township system of New Eng- land grew up around the community of land ownership. Not only did the communal idea not exist in Tennessee and the Carolinas, but the prevailing idea was directly antagonistic. The claim of title to every acre of land in Tennessee can be traced back to the original proprietors The tenure is distinctly feudal. The customs and rights distinctive of certain Germanic stages of development found no opportunity for expansion in a system which had scarcely a trace of the allodial tenure. The contests which in New England arose between the old inhabitants and the new-comers in reference to communal land found no parallel in Tennessee. Even the proprietorship of lands which is found in the state domain subject to grant is communal in appearance rather than in fact. Here the title is in the sovereignty, not in the community. There is no doubt that there would have been a revival in Ten- nessee of some form of local government parallel to the town-meeting in New England if there had been any op- portunity for settlements to obtain and hold in common contiguous bodies of land. When, therefore, the superior system of the North is attributed to the superior foresight of those who made it, they receive a credit not justly their due. Both are sprigs from the same stock, and adapted themselves to different circumstances in a different man-
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ner, both acting unconsciously. In the West and North- west, it is true, the New England system has been repro- duced in States of younger growth than Tennessee. But here, again, the same conditions which existed in New England produced the township also. The western town- ship is formed about the school, and when Congress gave a square mile of land in every six square miles for a township school fund, the seed was planted. When the State gave each township corporate functions for the pur- pose of fostering the interests of the school. it began to germinate. Especially is this so, when we consider that that part of the population which came from New Eng- land and which finally preponderated, brought the town- ship traditions with them. The lands given by Congress for school purposes in Tennessee were in large tracts, and each county received merely a proportionate share. It is apparent from this, that the township system was impossi- ble in the settlements of Carolina and Tennessee, and that the causes which introduced it into the West had no exist- ence in this State.
The centre of county government in this State is of course the county court or the court of pleas and quarter sessions. This is but an adaptation of the English quar- ter sessions court, which in turn was derived from the old court leets and manor courts. "The court leet is the lineal ancestor of the New England town-meeting. Thus the two systems met at a common point centuries before the discovery of the continent on which both exist. In 1749 an act was passed in North Carolina enabling the justices of the several courts to provide certain law books for the use of their county courts. The titles of these law books would alone tell the history of North Carolina law. They are Nelson's " Justice," Cary's " Abridginent of the Statutes," Swinburn on " Wills" or Godolphin's " Or- phan's Legacy," and Jacob's "Law Dictionary " or Wood's " Institutes." If now we seek for the origin of
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our county court system, we can trace it back to the old English statutes which, as already said, merely made use of that which already existed, inventing nothing new. The statutes of Westminster of 1330 preseribe that " there shall be good and lawful men in every county to keep the peace."
In 1360 a statute of Edward III. prescribed " what sort of persons shall be justices of the peace and what authority they shall have." They are to be " one lord and with him three or four of the most worthy in the county with some learned in the law," whose duty it is to look after rioters, barrators, and offenders generally. Also to " hear and determine at the king's suit all mat- ter of felonies and trespasses done in the same county according to the laws and customs aforesaid, and that writs of over and determiner be granted according to the laws and customs aforesaid." Here we see the shad- dowy outline of the county court. This very act gives them jurisdiction of one matter which they still retain : "to inquire also of n.easures and also of weights." In 1391 they were given power to redress forcible entries on real estate, also a species of jurisdiction which the Ten- nessee justice has. Being descended from the hundred reeve, the criminal jurisdiction predominates, and for a time all increase of power and authority is in that direc- tion. In 1411 they were required to arrest rioters, and in 1483 they were allowed to " let to bail," and three years later a limitation was added to this power, allowing this privilege to two, one to be of the quorum. In 1530 these justices of the peace, who had been gradually gaining in authority, were empowered to lay a tax for the building of bridges and repairing of highways, another power which they have possessed to this day. Among the powers granted to the lords proprietors by the charter of 1663 was, " to erect and make so many manors as to them shall seem meet and convenient, and in every of the said man-
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ors, to have and to hold a court baron with all things whatsoever which to a court baron do belong, and to have and to hold views of 'frank pledge ' and 'court leet' for the conservation of the peace and better government of those parts." These courts, however, which necessarily presuppose a population sufficiently large to perform the duties required, were never established. The circum- stances did not justify a revival of old forms, and it was found necessary to adopt the forms then in existence in England. In 1679 John Harvey, "governor-president of the council and commander-in-chief of the forces in Albemarle County," granted a commission of peace for the precinct of Berkely to his " well beloved and faith- ful George Durant, Alexander Lillington, Ralph Fletcher, and Caleb Callaway, Esquires."
Locke's fundamental constitution provided for a court in each county, consisting of the sheriff and four justices, one from each precinct, appointed by the palatine's court, and a precinct court consisting of a steward and four justices. The precinct courts were to be held quarterly and had jurisdiction of all offenses not punishable with death, and of all civil causes whatsoever.
These provisions of Locke may have tended to strengthen and render more decided the power and jurisdiction of justices of the peace, although those appointed in 1679 by Governor Harvey are evidently not the same officers pro- vided for in Locke's constitution. Later, the justices of the peace in North Carolina were appointed by the gov- ernor, and the council insisted, only with their consent. By the constitution of 1796, justices of the peace in Ten- nessee were appointed by the General Assembly. During the earlier days of storm and stress, the militia was, in many cases, the nucleus of local self-government both in Tennessee and other Southern States. Justices of the peace were appointed at first according to the captain's companies in each county, not exceeding two for each
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company except in the ease of the county town. Not more than three were to be appointed for the company embra- cing this. The constitution of 1834 divided the counties into districts, not more than twenty-five in each county, or four for every hundred square miles. Each district was to elect, by popular vote, two justices of the peace and one constable, except the distriet in which the county town is. This, three justices of the peace and two con- stables.
The single justice of the peace appears to have had certain judicial powers in civil matters involving forty shillings or less, at a very early period in the history of North Carolina. The precinct court, the sessions of which were quarterly, was composed of all justices of the peace in the precinct. This court occupied a position about midway between our present county court and the circuit court. It required three justices of the peace, one of them to be of the quorum, to hold court. The officer who served their writs was the sheriff, or, previous to 1738. the provost marshal. It was not until 1734 that the precinet court had the power of taxation. In that year an aet directed " that the justices of the aforesaid preeinets shall have full power and authority to appoint a place for a church, court-house, and prison ; to tax all taxable persons in the said preeinets for raising a sum of money sufficient to defray the expenses of the above publie buildings." It is curious that the first instance in our history of local taxation was that which the vestries in North Carolina were allowed to levy for the support of the ministers, and also to purchase glebes and to build churches. The parish as a unit of local self-government plays an important part both in English and New England history, and in the latter was an influence in the develop- ment of the township system. In North Carolina, how- ever, the parish and the vestry never possessed great influ- ence. An aet in 1701 established the Church of England
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in the Province of Carolina, and some attempts were made to organize under it, although against the bitter opposition of the Quakers. In 1715, however, a second attempt was successful. The Province was divided into nine parishes, a parish to each precinct except in the case of Chowan and Pasquotank, which contained two each. Twelve vestrymen were appointed in each parish, who elected two of their number wardens. The wardens were the executive officers, and could levy a double distress to collect the parish taxes, namely, a poll-tax of five shillings or less, for the minister's support, and the same for pur- chasing the glebe and building churches. These were levied by the vestry. The vestrymen were at first ap- pointed by the General Assembly, but in 1741 their elec- tion was relegated to the people. The church establish- ment lasted until the adoption of the constitution of 1776. It never gained a foothold in Tennessee.
In 1738 an act enlarged the powers of the county court, the name having been changed from precinet court. In 1741 their criminal jurisdiction as individual officers was increased. The county court was also in this year required or allowed to levy a tax to build court-houses, prisons, and stocks in every county. In 1754 an act for establishing county courts and enlarging their jurisdiction and settling the proceedings therein was repealed by proclamation, the General Assembly and Governor Dobbs being in a state of perpetual hostility and disagreement.
In 1760, however, an act to establish inferior courts of pleas and quarter sessions in several counties in North Carolina was passed, and two years later their civil juris- diction was extended to all matters that did not exceed fifty pounds proclamation money. In 1764 they were em- powered to direct the laying out of public roads. to estab- lish and settle ferries, and to appoint where bridges shall be built, and to clear navigable rivers and crceks. In 1777 an act was passed for erecting county courts, for
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holding sessions of the peace, and also appointing and commissioning justices of the peace and sheriff's in and for the several counties and the District of Washington within this State.
In 1777 the "act establishing courts of law and for regulating the proceedings therein " became a law, and this, as already said, is the basis of Tennessee jurispru- denee to this day. By this act, the justices of the county courts of pleas and quarter sessions, or any three of them, are given jurisdiction of matters above five pounds and of petit larceny, assaults and battery, trespasses, breaches of the peace, and all inferior misdemeanors, and are given full power to keep and maintain the peace in their re- spective counties. Matters of five pounds and under are determinable before any individual justice of the peace, with right of appeal reserved to the court of pleas and quarter sessions, now to the circuit court. In 1785 an act extended the jurisdiction of the county court to all actions of trespass in ejectment, formedon in descender, remainder and reverter, dower, partition, and trespass quare clausum fregit. The same act extended to simple justices of the peace jurisdiction of all debts and demands of ten pounds and under, where the balance is due on any specialty, contract, note, or agreement for goods, wares, and merchandises sold and delivered, or work or labor done. The act of 1786, for raising troops to protect the inhabitants of Davidson County, directed the justices of the peace to levy a tax payable in pork, beef, or other species of provision, to support them. It is unnecessary to follow the development of the county court beyond this. The county court of to-day is in all essential par- ticulars the county court of North Carolina, which in turn was taken bodily from the English quarter sessions court. The county officers, the sheriff, the constable. the coroner, all three of them bearing names that were once high in honor and strong in authority, are lineal descendants of
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what has gone before, and could in like manner be traced back to the time when America was unknown to the peo- ple among whom they performed their official functions. There has been constant growth, modification, change, and even exchange of duties and responsibilities. The most careful analysis and comparison could not, without the aid of historical investigation, find in the coroner of Ten- nessee any very decided resemblance to the coronator of the time of Henry II. But the functions of the coroner of to-day were surely performed in that day, and the coro- nator has grown into the coroner by historical processes as undoubted and as natural as those which carry the tree back to the acorn. Even the county ranger and the city pound-master are remnants of Anglo-Saxonism. When the Tennessean of to-day forces his neighbor to erect his share of the common fence, he is merely doing what his ancestors did even before they migrated to England. When the overseer of roads calls on those living on the highways to meet him on a certain day in order to work the roads, he is following a precedent that was old in the days of the Heptarchy. The hue and cry can still be raised in Tennessee, and if any man is called on by an officer in pursuit of a felon to assist in his arrest and refuses to give aid, he is liable to a fine. When the people of Memphis held the successive meetings which began with the abolition of the city charter and ended with the compromise of the city debt, and passed the reso- lutions which each time were embodied in laws by the state legislature, they were but reviving a custom of their race. the first record of which is found in the Germania of Tacitus. In short, it would not be difficult to multiply examples of this kind. There is nothing in the State to- day the importance of which is greater than a recognition of the fact that the institutions under which we live are the result of growth. They can be changed. In fact, the urgent need of a total revision of our entire machinery
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