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The Tennessee courts seem never to have doubted their power of reviewing the work of the legislature. In 1807 an act granting title to land was declared to transcend the powers of the legislature because North Carolina had, in ceding its western territory, reserved the right of eminent domain until it should fulfill certain engagements not settled at the time. Several early cases declared, without discussion of the matter, that acts of the legislature were not repugnant to certain constitutional clauses."

In 1815, Judge Overton, then the only member of the court, státed clearly the doctrine that the courts must, on occasion, declare legislation unconstitutional. While, "in point of fact," he said, "courts presume that every act of the legislature is constitutional”—“in deference to the legislative organ of the government,” yet

Legislators are under the same obligation to observe the provisions of the Constitution, that is incumbent on this court. But so long as the judiciary is a separate and independent branch of the government, it must result that, if a legislative act should be plainly and obviously opposed to the Constitution, the judiciary is incapable of observing the injunctions of the law and disregarding the Constitution at the same time. One or the other must be dropped, and as the Constitution is paramount to any law the legislature can make in opposition to it, the court is left without any alternative. All the organs of government are bound by the Constitution ; it is the letter of attorney or authority under which all must act. So far as that authority is exceeded, the act is void ; but this excess should be plain and obvious, for it is the duty of the courts to reconcile the provisions of an act of the legislature, with the Constitution, if by any means it can be done.

In 1821 the court declared an act of the legislature void be. cause contrary not only to the state constitution but also to that of the United States.

An attorney or attorneys for the state, appointed by the legislature, held office during good behavior. Several details

Miller's Lessee v. Holt, 1 Overton (Tenn.), 243,

?Shac v. Boven and Terry. 1 Overton, 334 (1803) ; Thompson v. Gibson, 2 Overton, 235 (1814).' See also Cowan's ('ase, 1 Overton, 310 (1808).

Bristoe v, Evans and JcCampbell, 2 Overton, 341 (345), 1815, holding that a grant from the state is a contract between the state and grantee, and any subsequent act of the legislature which impairs the rights thus acquired is unconstitutional. See also Fletcher V. Peck, 6 Cranch (U. S.), 136.

Torensend v. Tourneend and Others, Peck's Reports, 1 (182). See also Townsend y. Shipp's Heirs, Cooke's Reports, 294.

County

the Militia.

of ordinary procedure, such as forbidding judges to charge juries with respect to matters of fact,' were incorporated; every court was to appoint its own clerk” and the legislature was to appoint an attorney or attorneys for the state to serve during good behavior. Citizens of the state could not be fined more than fifty dollars save by a jury.

Justices of the peace were not to exceed two for each cap37. tain's company, except the one including the county town, which Officers and could have three. They continued during good behavior. The

county court was expressly made the appointing power for the other specified county officers.? The constitution of 1796 created the offices of trustee, with a term of two years, and of register and ranger, with tenure during good behavior. Two years was the term for other officers; the sheriff and coroner were to be commissioned by the governor.S

Lengthy provisions relating to the militia system were added.” Officers were for the most part to be appointed by vote of their inferiors, in no case by the legislature. The governor was to appoint the adjustant-general. The passage of laws exempting from attendance at musters persons religiously opposed to bearing arms was made mandatory.'

Among the miscellaneous provisions were continuance of re

ligious qualifications, somewhat moderated,” addition of an Miscellaneous

embryonic corrupt practices law, relating to bribery of electors; regulation of the establishment of new counties ;t a clause declaring that laws in force in the territory should continue in the state if consistent with the constitution ;5 and, finally, a method of calling another convention to alter the constitution -by two-thirds vote of the legislature, ratified by a majority of those voting at the next election for members of the House of Representatives. In that event the legislature was to call a convention to consist of the same number of delegates as it had members, and to be similarly chosen.

Viewed by modern standards, democracy was far from triumphant in the work of the first Tennessee convention, but there

38.

1V, 5.

2V.' '

zy. 2.
4v, 11.
The county subdivision then used.
V, 12. Appointed by legislature under III, 3.
TVI, 1.
SVI. 1.

PVII.
IVII, 7.
2VIII.
IX, 3.
IX, 4.
“X, 2.
•X, 3.

General

of the

Work.

was a distinct advance and it was accompanied by a lessened 39. distrust of government, which the absence of experience with Estimate foreign rulers and the frontier appreciation of the need for convention's leadership had doubtless helped to render possible.

Jefferson's commonly quoted remark that the first constitution of Tennessee was the least imperfect and most republican of the state constitutions that had been adopted at its time must not be accepted, however, as indicative of a very notable degree of progress. Mention has been made of its reactionary tax clause-reactionary because included in the constitution ; —yet, on the other hand, in granting manhood suffrage, in increasing the power of the executive and making fewer officers elective by the legislature, it shows very distinctive advance over its North Carolina predecessor of twenty years previous and in its day, as constitutions went, it may be considered a creditable but conservative specimen.

CHAPTER III.

THE CONVENTION OF 1834.7

Development

1796-1834.

The generation and more following the admission of the 40. state and preceding the constitutional convention of 1834 was of the State, marked by the pushing forward of the frontier beyond the borders of Tennessee; Tennesseans themselves became emigrants. It was an era of expansion and of aspirations for greater expansion. The population of the state between 1800 and 1830 increased more than sixfold—from 105,602 to 681,904,—while the population of the country as a whole little more than doubled. The slave population was increasing still faster and was setting another barrier between the mountains of the East and the hills and lowlands west of the Cumberlands. The atti.

General References: Journal of the Convention, 1834; Caldwell, J. W.. Constitutional History of Tennessee; Garrett and Goodpasture, History of Tennessee; McBain and Mynders, Hoc We are Governed in Tennessee and the Nation : Morris, Eastin. The Tennessee Gazetteer (1834). For text of the constitution and amendments see, infra, Appendix 1,

tude toward free negroes was growing intolerant in the latter while in the former abolition movements were beginning to spring up. Land holdings grew smaller but, except following the opening of new districts to settlement, land was no longer to be cheaply bought. Business enterprises of various kinds were springing up and bearing fruit. Banks, both state and national,s were coming to the aid of commercial transacitons. The extension of commercial opportunities was eagerly sought and the proposal was actually made that the state itself should become "the carrier of the surplus produce of the country," hiring barges and men and charging for the service.

The plan did not meet with favor, but the people were taking advantage of steam for navigation and Tennessee was sharing the development which the use of steam made possible. When the foremost Tennessean was sent to the White House in 1829, the state was ready to take a leading part in the triumph of the agricultural sections of the country, which had been striving for foreign markets and low tariffs, against the manufacturing interests of the northeast.

It was during Jackson's second administration that, yield

ing to the influence of the ascendant political democracy of the Reasons for times; to dissatisfaction (1) with the use the legislature had Constitution made of its power to establish and regulate courts and elect

judges, (2) with land taxation that took no account of value, and (3) with the method of selecting county officers; and finally to the cherished desire for express authorization for state aid to internal improvement schemes, the people sent their representatives to Nashville for a constitutional revision.

The constitution as revised in 1834 contained some 9,500

words, divided between a preamble, reciting the sources of auFeatures of thority of the convention and recommending the product of its Constitution. labor to the ratification of the people, and eleven articles, the

41. Chief

42. General

the New

$i, e., branch of the Bank of the l'nited States.
°A Short Description of the State of Tennessee, 1810 (?).

1 In offering a resolution to the convention Willie Blount argued in favor of internal improvements as a means of military preparedness and for the advantage of obtaining the choice of the best and all desirable markets, at "trifling expense," for the state's redundant produce; and as a means of affording the state, whenever disposed to take an interest in these improvements, a clear revenue sufficient to fill her treasury and support her civil list, as well as provide extensively for the education of her youth, and all these without taxes on her people.-Journal of the Convention, pp. 152-3.

"There were, of course, other minor reasons for the convention, especially objection to the passage of certain kinds of private bills by the legislature.

Reflection of

first of which was a declaration of rights-merely the retention
of those before declared, save that it failed to recognize a right
in free negroess to bear arms, and did not limit the right of
action against the state to the state's own citizens.*
Increased democracy-but democracy limited to the white 43.

Democracy. race—was the keynote of the convention's work. Property privileges in voting and, so far as officials named in the constitution were concerned, property qualifications for holding office, were swept utterly away. Free white men who were citizens of the United States, and had been citizens of the county for six months constituted the electorate. Disfranchisement for crime was, however, authorized.

In response to the economic demands of the times the new 44. instrument ratified by the electorate in 1835, while retaining Economic the economic provisions already in the constitution-except the specific land tax-added (1) that a "well-regulated system of internal improvement ... ought to be encouraged by the general assembly;"8 (2) an express provision that the legislature could grant charters of incorporation ;9 (3) that the leg. islature should fix a uniform rate of interest;1 (4) that laws for the emancipation of slaves without the consent of their owners should not be passed; and, finally, (5) that all property -45.tion reserved for taxation should be taxed "according to its value.”'3 According

Land, bank-stock and slaves between the ages of twelve and fifty were made mandatorily taxable and the legislature was empowered to add to the list indefinitely. Continuance of the practice of taxing “merchants, peddlers and privileges” was made permissive. A tax on white polls4 and the exemption of free negroes was ordained."

• Taxation

to Value.

31, 26:

+1, 17.

SIn State V. Claiborne, Meigs (Tenn.). Reports. 331 (1838), the court in holding that free negroes were not citizens within the meaning of the Constitution of the l'nited States (IV. 2), and of Tennessee (I, 8), said, "An emancipated slave is called a freeman in common parlance, and in reference to his former state he is so . .But in reference to the condition of the white citizen his condition is st that of a degraded man, aspiring to no equality of rights with white men."

IV, 1. It was to the electorate as determined by the convention that the new instrument was submitted for approval.

TIV, 2.
$XI, 9.
"XI
1XI. 6.
PII, 31.
3II, 28, 29.
*This use of the word is common in Tennessee law.
SII, 28; IV, 1.

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