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PART I.

CONSTITUTIONAL DEVELOPMENT IN TENNESSEE.

CHAPTER I.

THE NORTH CAROLINA CONSTITUTION OF 1776.8

Commence

History.

The constitutional history of Tennessee properly begins with the adoption by the revolutionary congress of North Carolina, in 1776, of a permanent written instrument for directing the 6. government of that state. Having joined the other colonies in ment of declaring independence of the British king, there was palpable Constitutional necessity for this action on the part of North Carolina. In place of the discarded royal charter there must be a popular constitution.

The revolution had resulted in a change of sovereignty. No alteration had taken place, however, in the minds of the people relative to their ordinary political institutions and no very radical changes were provided for; in the constitutional his. tory of North Carolina the 1776 instrument is but a link in the chain of development. The student may, of course, in tracing backward the history of anything in the present go as far as his inclination dictates, but for a brief discussion of the constitution of Tennessee, the North Carolina constitution as it went into effect just when the settlement of that state's western

*Part I is a revision of the writer's article entitled The Development of the Tennessee Constitution, published in the Tennessee Historical Magazine, Dec., 1915.

General References: Caldwell, J. W., Constitutional History of Tennessee; Sikes, E. W.. The Transition of North Carolina from Colony to Commonwealth (Johns Hopkins University Studies in Historical and Political Science, Vol. XVI, p. 477.) For text of the constitution see, infra, Appendix 1.

The congress was elected for the particular purpose and sat from November 12th to December 18th.

General Characteristics of the Constitution of 1776.

lands, the future Tennessee country, was getting well under way, forms the only reasonable point of departure.

This constitution is embodied in a modest instrument, of somewhat less than 5,000 words, divided into two main parts,

“A Declaration of Rights, etc,” and “The Constitution, or Form Constitution of Government, etc.” The former contains twenty-five subdivi.

sions; the latter forty-six, besides a lengthy preamble, justifying the action of the representatives of the freemen of North Carolina by reason of the withdrawal of protection by the British Crown and the declaration by the Continental Congress of the independence of the “Thirteen United Colonies.” The instrument was finally adopted by the convention which framed it and was not submitted to the vote of the people..

Its two parts are less distinct in fact than in form. The “constitution” particularly declares that it includes the bill of rights” and, indeed, contains within itself passages suggestive of rights rather than the regulation of governmental functions, -. g., freedom from compulsory payments for the support of any religious organization, immunity from imprisonment for debt, except in case of fraud, provided the debtor shall deliver up all his property for the benefit of his creditors, and the right to bail except in capital offences where the proof is evident or the presumption great." On the other hand, the declaration of rights contains the admonition “that the legislative, executive, and supreme judicial powers of government, ought to be forever separate and distinct from each other,"6 which, in substance, declares that the type of government contemplated was that of the separation of powers, the distinct demarcation of the legislative, executive and judicial functions of government and the officers who should administer them, which, according to Montesquieu's doctrine? was essential to the preservation of liberty. It will be observed, however, that the constitution so

1Concerning North Carolina colonial history see Bassett, Jno. Spencer, The Constitutional Beginnings of North Carolina (Johns Hopkins University Studies in Historical and Political Science. Vol. XII. p. 105): Raper. Charles Lee, North Carolina: A Study in English Colonial Gorernment; Williamson, H.. History of North Carolina.

'XLIV.
3XXXIV.
*XXXIX.
5ib.
IV.
Infra, ch. 8.

exalted the legislative branch of the government as to prevent
the complete realization of this ideal.
The rights declared to belong to the people-apparently used 8.

The Rights of synonomously with "freemen"-of North Carolina include the the People. possession of all political power and all authority to regulate the “internal government and police” of the state ;8 freedom from taxation without their own consent or the consent of their representatives and from the suspension or the execution of laws without the latter's consent; liberty to assemble and peti. tion their representatives ;? free and frequent elections ;freedom of worship* and of the press ;5 the right to bear arms; the strict subordination of military to civil authority. Public privileges to private parties are forbidden save in return for public service;' hereditary emoluments, privileges and honors are prohibited, as are also retrospective legislation and perpetuities and monopolies. 10 It is declared "that a frequent recurrence to fundamental principles is absolutely necessary, to preserve the blessings of liberty.??1

About one-third of the declaration of rights is devoted to setting forth the private rights of individuals in connection with 9. the law: trial by jury in both criminal and civil cases ;? freedom Rights of the from general warrants, the guarantee "that every freeman, restrained of his liberty, is entitled to a remedy, to inquire into the lawfulness thereof, and to remove the same, if unlawful; and that such remedy ought not to be denied or delayed ;4 exemption from answering criminal charges save by indictment, presentment or impeachment, and from excessive bail and fines and cruel and unusual punishments;& trial in open court? and the right to know whereof one is accused, to confront his accusers with other testimony and not to be compelled to give evidence against himself.s

The final subdivision of the declaration of rights, declaring that "the property of the soil, in a free government,” is "one

Private

Individual.

SII.
9XVI.
1v.
2XVIII.
SVI, XX.
XIX, but see Const. XXXIV.
XV.
XVII
III.
XXXII.

$XXIV.
10XXIII.
IXXI. Compare Ariz. II, 1.
PIX; XIV.
3XI.

XIII.
SVIII.

6X.

TIX.

SVII.

10. Organization of the Government.

of the essential rights of the collective body of the people,” recognizes the necessity of ascertaining the limits of the state__in order to avoid future disputes—and so proceeds to set the boundaries of North Carolina. There follow provisions against disturbance of the Indians within limits secured by legislative act, against the upsetting of titles claimed by reason of grants made during the colonial period, and against the construction of the language of the declaration “so as to prevent the establishment of one or more governments westward” of the state, by consent of the legislature.

The prevention of “anarchy and confusion,” for which end the new government is declared to be established," was entrusted by the convention to a legislature of two houses, a Senate and a House of Commons, "both dependent on the people,”2 empowered to appoint a governor and other executive officers* and Judges of the Supreme Courts of Law and Equity and Judges of Admiralty. The old colonial legislature had proven the faithful bulwark of popular contentions in the days when popular authority was extending itself gradually from few to many things, and that its successor should be entrusted with the many things now attained was both natural and logical. The members of this General Assembly, however, were to be kept in close touch with the popular fountain of authority by annual elections which were to be by ballot.

From the point of view of present-day conceptions, this fountain was of somewhat restricted flow, including the sentiments of taxpayers and land owners only,—the former, if they fulfilled certain age and residence requirements, being allowed to vote for representatives, and the latter, if, in addition, they were freeholders, of six months' standing, to the extent of fifty acres in the county, being allowed to vote for senators.? In certain towns which were entitled to separate representation in the House, freemen possessed of freeholds could vote whether resident or not. Property qualifications upon the suffrage were thoroughly characteristic of the state constitutions of that early period.

11. Property Qualifications.

XXV.
1Preamble to Constitution.
2Const., I.
3XV.
4XVI, XXII. XXIV.

5XIII.

VIII. 7VII. SIX.

The

Each county of the state was represented by one senator, 12. who must have “usually resided” therein for one year and must Legislature. during that time have possessed within the county three hundred acres of land in fee.

In the House of Commons each county had two members with similar residence requirements and having similarly owned for six months one hundred acres either in fee or as a life estate.3

Six of the towns of the state had each one member of the House and the townsmen were not entitled to vote for members from their counties. The town members, apparently, could be citizens of the county outside the town.

When assembled, these representatives were vested with all the legislative authority of the state. Each house elected a speaker, passed upon the qualifications of members, directed writs of election to supply vacancies and prepared bills for passage.* All bills were required to be read three times' in each house and signed by the respective speakers. A majority, "actually present,” was necessary to form a quorum ;? on motion “made and seconded” the yeas and nays of all voters had to be entered upon the journals. These journals were to be printed and made public immediately after adjournment. Any member could have included in the journal his protest against any action taken. Each House sat upon its own adjournments and jointly they could adjourn to any time or place."

By joint ballot the two Houses were to elect a governor for or .one year. He must be thirty years of age and a resident of Elected five years and must own in the state "a freehold in lands and Legislature. tenements above the value of one thousand pounds," and he must not be elected for more than three terms in six years. To advise with the governor, they were each year to elect a Council of State of seven persons, of whom four should be a quorum, and who must keep a journal of their advice and proceedings.?

13. Officers

II.

IXI. iv.

2XLVI. 211I.

3ib. VI.

4XLV III. SIX. &VI.

XVI. 11. 8X.

This requirement first found in this constitution. Proceedings of Academy of Political Science, V, 103.

5X. 6XV.

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