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Netherland, Nicholson, Porter of Haywood, Porter of Henry, Seay, Shepard, Shelton, Stephens, Taylor, Thompson of Davidson, Thompson of Maury, Walters, Warner, Williamson and Wright --50.
Those voting in the negative are:
Messrs. Branson, Brown of Davidson, Coffin, Cypert, Fentress, Garner, Gibson, Heiskell, House of Montgomery, etc., Ívie, Kennedy, Key, Mabry, Morris, Sample, Staley and Turner—17.
Mr. BURTON entered a motion to reconsider the vote adopting the amendment; which lies over.
On motion of Mr. NICHOLSON, the Schedule and the amendments adopted thereto were re-committed to the Committee on the Judiciary.
On motion of Mr. THOMPSON, of Maury, the Convention adjourned until to-morrow morning at 9 o'clock.
The Convention met pursuant to adjournment, Mr. President BROWN in the Chair.
The Journal of yesterday was read and approved.
MEMORIALS AND PETITIONS.
Mr. IVIE presented a memorial from a number of citizens of Bedford County, praying that the Constitution be so amended, that towns and civil districts shall have power, by vote, to prevent the sale of spirituous liquors in their limits, which was read and referred to the Committee on Miscellaneous Provisions.
Mr. BRANDON presented a memorial from sundry citizens of Stewart County, praying that the Constitution be so amended that
old counties, in the formation of new ones, may be reduced to four hundred square miles, which, without being read, was referred to the Committee on New Counties and County Lines.
Mr. THOMPSON, of Maury, presented the following memorial:
Your memorialist states that the Bank of Tennessee is the holder of two notes drawn by Isaac M. Jamieson ; the first, dated January 16, 1862, for two hundred dollars, and payable at four months; the second is dated February 12, 1862, for two hundred dollars, and also payable at four months. Thé Bank of Tennessee assigned these notes after they had become due, and when said Bank was insolvent, to Samuel Watson, in trust for the benefit of its creditors. Subsequent to said assignment the said Watson instituted separate suits upon said notes in the Circuit Court of Maury County, where the same are now pending. The said Isaac M. Jamieson hath since the institution of said suits departed this life intestate, and
your memorialist is his administrator. Your memorialist now states that since his appointment he has tendered to the attorney and agent of said Bank, and said Watson, payment of said notes, and the legal interest thereon to date of tender, in the bills and notes of said Bank issued prior to the assignment made to the said Watson, and said Watson and said agent refuses to accept the tender so made, alleging that the bills and notes so tendered by your memorialist were issued by the Bank after the 6th day of May, 1861, and that being so issued they have been declared by the amendment made to the Constitution of the State, and adopted in February, 1865, to be illegal and void. Your memorialist states that he has been informed and believes that the Judges of the courts of Tennessee believe and hold that said amended Constitution is a law unto them which they are not at liberty to disregard.
Your memorialist is informed that Section 6, of the schedule adopted as a part of the Constitution of the State, in February, 1865, and to which said agent of the Bank, in refusing to accept the tender aforesaid referred is in violation of Section 10, Article I, of the Constitution of the United States; and is also in conflict with Section 20, of the Bill of Rights of the Constitution of the State, said Section 6, does “ impair the obligation of a contract” must be evident to the mind of every one. It takes away the rights and equities secured to the holders of the bills and notes of the Bank under the general Banking law of the State, adopted by the General Assembly in 1857–8. The rights that belonged to the holder of the note of the Bank as a payee, and the rights and equities that belonged to him as debtor of the Bank were vested and perfect prior to the adoption of said amendment. Yet, as your body well knows, your memorialist cannot test the question involved herein (if at all) in the Courts of the United States without great expense to himself and his estate. His condition in this re
gard is that of hundreds of other citizens of Tennessee, who are debtors to the Bank. Your memorialist is informed that said Section 6, of the amended Constitution, was adopted under the belief that the issue made by the Bank, after May 6, 1861, was made with a view of aiding the rebellion. But your memorialist is informed and so believes, that the issue was made for no such purpose, and was in fact not so used or circulated. On the contrary, the issue was made to meet the wants and necessities of the people of Tennessee, owing to the suspension and insolvency of the Banks of neighboring States that had previous thereto supplied a large portion of the currency of the State. Your memorialist is informed, and so believes, that this alledged new issue was paid out by the Bank to its customers without regard to date of issue and in payment of its debts to depositors and other creditors, and not otherwise.
Under these facts your memorialist submits to the Convention that inasmuch as the faith of the State was pledged to make good any of the deficiencies, or losses, made by said Bank, and inasmuch as great injustice is done him, and others in like condition, by said amendment; that it is equitable, legal and in obedience to the Constitution of the United States that said amendment should be stricken out, and if no more be done, that at least your memorialist should be left unembarrassed by such provision to litigate his rights before the Courts of the State. It is submitted that it must be apparent that the State (the State being the ultimate party to be benefitted under the guarantees as contained in the charter of said Bank) is seeking, by the collection of the notes given by your memorialist's intestate, to avail itself of the acts of the officers of said Bank after May 6, 1861, where it is to be benefitted, and that it seeks to repudiate the acts of said officers where it is likely to be injured. Your memorialist feels assured that such a position is not a just one to the State; wherefore, he prays that said amendment, repugnant, as aforesaid, to the Constitution of the United States be stricken from the Constitution of the State of Tennessee.
R. H. JAMIESON,
Which was read and referred to the Committee on the Judiciary.
RESPECT TO MRS. JUDGE CATRON.
Mr. NETHERLAND offered the following resolution :
Resolved, That a committee of three be appointed to wait on Mrs. Catron, the widow of the late Chief Justice, and ascertain and report when it would suit her convenience to receive a visit of respect from this body.
On motion of Mr. NETHERLAND the rules were suspended and the resolution adopted.
Mr. GIBSON presented the following
The undersigned cannot consent to the removal of all the Judges, Chancellors, Attorneys for the State. Justices of the Peace, Supreme, Chancery, Circuit and County Court Clerks and Registers without entering a respectful, yet decided protest:
The undersigned do not subscribe to the doctrine, here dogmatically promulgated, that the amending of a Constitution, ipso facto, vacates every office in the State not expressly allowed to remain filled. The undersigned admit that, if there be any office incompatible with the Constitution as amended, or if there be any office the tenure or duties whereof, or the qualifications wherefor, are fundamentally, changed, then would such office be abolished or vacated ; but the undersigned go no further, and the undersigned maintain that this is the true doctrine: Where the amendments to a Constitution do not materially change the duties or tenure of an office, or the manner of filling the same, or the qualifications therefor, that then such office continues undisturbed, and its occupant is neither necessarily nor impliedly ousted. In other words, where the office is, in all its essentials, precisely the same in the old as in the amended Constitution, there the office and its incumbent remain precisely the same as though the old Constitution was still in full force. Because, by ratifying the amendments the people do not thereby make a new Constitution : they merely accept the old Constitution as amended. Their ratification vitalizes the amendments only: for the body of the Constitution was already vitalized and the amendments are merely engrafted on this already vitalized body. Suppose this Convention had done nothing but make every man a voter and liable to poll tax and military duty, would any one have maintained that the adoption of these amendments would ipso facto vacate every office in Tennessee?
Having disposed of the political heresy that the adoption of this. imended Constitution, ipso facto, vacates all the offices in the State, he undersigned would enumerate the following additional reasons or their vote against the removal of said officers :
1st. The vacation of said offices was not an issue before the people when the delegates where elected: and to vacate these offices is no part of the professed object of this Convention.
2nd. The vacation of the offices of Judge, Chancellor and States Attorney is a direct violation of political faith, said offices having een recently filled by a popular election demanded and brought on
by the very men who now seek to empty them again, seek indeed to empty them before fully warmed by their new occupants !
3rd. The vacation of the offices of Justice, Court Clerks and Register is an act of littleness, of petty persecution, utterly unworthy the dignity of a Constitutional Convention, especially when that Convention in no single particular changes the term or tenure of said offices, the method of filling the same, or the qualifications therefor.
4th. The vacation of all of said offices will be construed by the Republicans as a direct partisan blow at them, and as an exhibition of political malice, prompted only by a desire for party vengeance. And thus will strife be perpetuated in Tennessee.
5th. The vacation of said ofñces is the basest ingratitude to those members of the Republican party, who made this Convention possible, by putting the ballot in the hands of the disfranchised. But those Republicans never dreamed that the weapon they restored would be used to strike down those who restored it. It sounds like the old story of the viper stinging the bosom that had warmed it into life.
6th. The vacation of said offices is in violation of all good precedents, is not required by the necessities of the times, is an ingenions device to put out “the ins” and to put in the outs,” it is a beginning that may be dangerous in its ending, and as a political invention may yet “torment the inventor.”
7th. The vacation of said offices is a summary and ex-parte judgement of condemnation pronounced alike on the just and the unjust, the worthy and the unworthy. If any of the incumbents of said offices deserve removal, the amplest power to remove already exists. This summary removal is an act of tyranny, and, as made, is inviolation of the Constitution of the United States.
8th. The vacation of said cffices will make the North distrust the South, will be deemed a proclamation of war against Union men, will discourage immigration to the State, will prevent the investment of capital and the development of our resources, will postpone the general removal of Constitutional disabilities by Congress, will give additional reasons for federal intervention, and will delay the return of peace and harmony and the altimate restoration of the Union.
The undersigned therefore protest against the vacation of said offices, or any of them, and ask that this, their protest be spread upon the Journal.
HENRY R. GIBSON,