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Cornell University Library
JK5225 1796 .S22
The constitutional convention of Tenness
olin
3 1924 030 493 153
■
CONSTITUTIONAL CONTENTION
TENNESSEE OF 1796.
EDWARD T. SANFORD.
Reprinted from the Proceedings of the Bar Association of Tennessee
...for 1896...
MARSHALL & ORUCE CO., NASHVILLE. TERN.
The original of this book is in
the Cornell University Library.
There are no known copyright restrictions in
the United States on the use of the text.
http://www.archive.org/details/cu31924030493153
THE CONSTITUTIONAL CONVENTION OF 179b,
EDWARD T. SANFORD.
On July 31st, 1797, Francis Baily, a young English traveler,
then unknown to fame, but afterwards I'resident of the Royal
Astronomical Society, while stopping at the town of Nash-
ville, before starting on his fifteen days' overland journey
through the Indian territory to Knoixville, after noting in his
Journal the recent formation of the State of Tennessee and
the fact that the Governor had, "in pursuance of the law,
called a convention who lately met at Knoxville, (and) formed
a Constitution," added, by way of comment, this foot note:
"All this sounds terrible in England, but is is a matter of
course in America," after which digression he continued:
"This Constitution breathes the true spirit of republicanism,
and is formed much after the same manner as others, with all
the improvements which time and experience have pointed out
in the science of legislation." (1)
The Constitutional Convention thus referred to was that of
1796. I shall use Mr. Baily's commentaries as the text for
the two salient features of that convention upon which it is
my purpose to lay especial emphasis: First, the fact that
while the holding of such a convention would indeed have
been an extraordinary thing in England, with its unwritten
constitution, it was, in America, "a matter of course," and
only one link in an orderly and legal chain of events; and
second, that the Constitution thus formed was not in any
sense a sudden and spontaneous creation, but was the natural
outcome of those experiments in constitution-making with
which its. framers were acquainted, with such improvements
as their own experience and the spirit of the times suggested.
Taking up then the first of these points, it will be necessary,
(1) Francis Baily's Journal of a Tour in Unsettled Parts of America,
p. 413.
in order to understand the legal ground upon which this Con-
vention rested, to briefly review the principal events and leg-
islative enactments of which it was the logical outcome.
It was natural that North Carolina, claiming under the
charters of 1663 and 1665, by which Charles II., by the Grace
of God, King of England, France, Scotland and Ireland, and
Defender of the Faith, had granted to his right trusty and
right well beloved cousin and counsellor, Edward, Earl of
Clarendon and High Chancellor of England, and the six other
Lord Proprietors of Carolina, a province extending westward
"as far as the South Seas," (2) should have been one of those
States which, towards the close of the Revolutionary War,
under the leadership of Virginia, stoutly resisted Maryland,
Delaware and the other smaller States, whose territorial limits
being clearly defined and scarce extending out of hearing of
the surf upon the Atlantic shores, insisted, with the strenuous
energy bom of the instinct of self preservation, that the vast
empire west of the Alleghanies, which was unsettled at the
commencement of the Revolution, and claimed by both the
British Crown and the native Indians, when "wrested from
the common enemy" by the blood and treasure of the thirteen
States, should be considered as a common property, held for
the common good and the payment of the common debt. (3)
And hence, the Articles of Confederation having failed to
settle the dispute, and Maryland stoutly withholding her as-
sent thereto. Congress, by resolution of Sept. 6, 1780, urged
upon the States claiming western lands a liberal surrender
of a portion of their claims in order that "the stability of the
general confederacy" might be preserved, and the only ob-
stacle removed to a final ratification of the Articles of Con-
federation; (4) this recommendation being followed by another
resolution on October 10 of the same year, by which Congress
pledged itself that such unappropriated land as might be re-
linquished to the United States, pursuant to the former res-
olution, should be "disposed of for the common benefit of the
(2) Ben. Perley Poore's Constitutions and Cliarters, Vol. 3, pp. 1383
and 1390.
(3) The Public Domain, p. 60 et seq.
(4) The Public Domain, p. 64.
— 3 —
United States, and be settled and formed into distinct repub-
lican states" containing a suitable extent of territory, as near
as might be, from one hundred to one hundred and fifty miles
square, which should "become members of the Federal Union,
and have the same rights to sovereignty, freedom and inde-
pendence as the other States." (5)
And, accordingly, when in December, 1789, the General As-
sembly of North Carolina, following the patriotic example of
New York, Virginia, Connecticut and South Carolina, and
reciting the repeated recommendations of Congress for a ces-
sion of western lands, for the second time authorized the
cession to the United States of all her lands lying west of
the Great Smoky Mountains, and constituting the present
State of Tennessee, (6) it followed, by virtue of the last men-
tioned resolution, that the inhabitants of the ceded territory
became entitled to the benefit of the Nation's pledge that they
should be formed into a State or States as members of the
Federal Union.
But, as if to make this yet more specific. North Carolina
provided as an express condition of the cession, that the ceded
territory should be "laid out and formed into a State or States
containing a suitable extent of territory, the inhabitants of
which shall enjoy all the privileges, benefits and advantages
set forth in the ordinance of the late Congress for the govern-
ment of the western territory of the United States," and that
the inhabitants of the ceded territory should never be barred
or deprived "of any privileges which the people in the ter-
ritory west of the Ohio enjoy." (7)
The ordinance thus expressly made the basis of our rights
and privileges was the famous ordinance passed by the Con-
federation Congress on July 17, 1787, commonly known as the
Northwest ordinance, by the fifth article of which it was spe-
cifically provided that whenever any of the three new States
therein contemplated should have "sixty thousand free in-
habitants" it should be "admitted by its delegates into the
(5) The Public Domain, p. 64.
(6) 2 Poore's Charters and Cons.titutions, p. 1664.
(7) 3 Poore's Charters and Constitutions, p. 1666.
Congress of the United States, on an equal footing with the
original States in all respects whatever," and should be "at
liberty to form a permanent constitution and State govern-
ment,'' provided only it should be republican and in con-
formity with the principles of the ordinance, and that so far
as consistent with the general interests of the confederacy,
such admissions should be allowed earlier and with a less
number of free inhabitants. (8)
And the two North Carolina Senators, one of whom was the
same Benjamin Hawkins, who had recently defeated William
Blount as a candidate, having on February 25, 1790, executed
the deed of cession, which was accepted by the United States
the following month, (9) Congress, a few weeks later, by an
act approved May 26, 1790, provided "that the territory of
the United States south of the Ohio Eiver, for the purpose of
temporary government," should "be one district," and that its
inhabitants should enjoy "all the privileges, benefits and ad-
vantages set forth" in the Northwest ordinance. (10)
And thus, by the resolution of October 10, 1780, and by
express reference to the provisions of the Northwest ordi-
nance, was the right of ultimate Statehood doubly guaran-
teed to the inhabitants of the Territory South of the River
Ohio, or Southwestern Territory, as it was commonly called.
This territory, it should here be noted, did not include
merely the present State of Tennessee, as is commonly sup-
posed and generally stated, at least impliedly, by our his-
torians, including even Eoosevelt, the last and best, but also
embraced a strip some twelve miles in width and about four
hundred miles in length, containing over forty-eight hundred
square miles, lying immediately south of the present State
of Tennessee, extending from the western boundary of South
Carolina to the Mississippi Eiver, and now forming the north-
ern portion of Georgia, Alabama, and Mississippi.
This strip of territory, which includes the battlefield of
Chickamauga and such towns as Stevenson, Ala., and Cor-
(8) 1 Poore's Charters and Constitutions, p. 433.
(9) 3 Poore's Charters and Constitutions, p. 1664.
(10) 3 Poore's Charters and Constitutions, p. 1667.
inth, Miss., had been ceded to the United States by South
Carolina in 1787, (11) after a series of confused legislation
which has been admirably described by Prof. W. E. Garrett
in his valuable paper on the history of the South Carolina
cession; (12) it was, therefore, at the date of the passage of
the Southwestern ordinance a component part of the terri-
tory owned by the United States south of the Eiver Ohio, and
was hence included in the terms of that ordinance. However,
as it was inhabited at that time principally by wolves, rattle-
snakes and Indians, it was apparently unnoticed, and no actual
jurisdiction was ever asserted over it by the territorial gov-
ernment, the only counties which were created in the territory
during its whole existence being subdivisions of the old North
Carolina counties; and in 1796, as we shall see, at the time
our State Constitution was formed, still unnoticed, it passed
out of our history forever.
Passing by the intermediate phases of our territorial gov-
ernment, not relevant to the present subject, we are brought
to September 29, 1794, upon which date there appears the first
recorded evidence of the sentiment that eventually led to the
formation of the new State, in a joint resolution of the two
houses of the Territorial Assembly, requesting Gov. William
Blount to direct that in taking the census in the following
June, the sense of the people should be inquired into as to
their wish for admision into the Union as a State. (13)
On the following day Gov. Blount jjrorogu'ed the Assembly
until October, 1795, (14) but in a letter, apparently written in
December, 1794, to Gen. Sevier, he expressed his opinion that
the territory should become a State as early as possible, and
stated that he had already written to friends in Congress re-
questing them to have an act passed for that purpose, (15) and,
shortly afterwards, with that political tact which, as Phelan
says, "was but little beloV statesmanship." and probably in
(11) The Public Domain, p. 75.
(13) Published among- the Tennessee Historical Society Papers.
(13) Journal of Legislative Council (reprint of 1853), p. 33; Journal of
House of Representatives (reprint), p. 40.
(14) Journal of House of Representatives (reprint), p. 41.
(15) Ramsey's Annals of Tennessee, p. 639.
obedience to what was undoubtedly a rapidly growing pop-
ular desire for admission as a State, he issued a proclamation
calling a special session of the Assembly at Knoxville on
June 29, 1795, and on its meeting stated in his message that
Ms principal object in calling them together was to afford
an opportunity to inquire whether it was, as he had "been
taught to believe, the wish of the majority of the people that
this territory should become a State" when there should be
found to be sixty thousand free Inhabitants, or at such earlier
period as Congress should enact; and if so, to take prompt
measures to effect the desired change. (16)
In reply to this message, John Sevier, as Chairman of a
special joint committee of the Assembly, reported an address
to his Excellency, expressing their approbation of the object
for which they had been called together and their conviction
that the great body of their constituents were "sensible of
the many defects" of their present mode of Gotemment, and
of the great and permanent advantages to be derived from a
change." (17)
A few days later an act was passed providing for the
enumeration of the inhabitants of the territory by the sheriffs
of the various counties and for the return of same on schedules
showing separately the number of free white males over and
under sixteen years of age, of free white females, and of all
other free persons and of slaves, and further providing that if
it should appear that there were "sixty thousand inhabitants,
counting the whole of free persons, including those bound to
service for a term of years, and excluding Indians not taxed,
and adding three-fifths of all other persons," the Governor
should recommend to the people the election of five persons
from each county to represent them in a convention to meet
at Knoxville "for the purpose, of forming a Constitution, or
form of Government, for the permanent government of the
people who are or shall become residents upon the lands by
the State o f North Carolina ceded to the United States." (18)
(16) Journal of Legislative Council (reprint), p. i.
(17) Journal of Leg-islative Council (reprint), p. 9.
(18) Acts of 3nd Session of 1st Territorial Assembly, Ch. 1 p. 3 Julv
11, 1795. ' f ) J
— 7 —
The act furthermore provided that the sheriifs should ask
each free male person of eig-hteen years and upwards the fol-
lowing question: "Is it your wish, if upon taking the enumera-
tion, there should prove to be less than sixty thousand inhabi-
tants, that the Territory shall be admitted as a State into the
B^ederal Union with such less number, or not?" and should
make a separate return of this vote to the G-overnor, who, if
the number should be less than sixty thousand and the ques-
tion be determined in the affirmative, was requested to call a
special session of the General Assembly as early as might
be. (19)
It was also provided that the members of the convention
should receive the same "wages" per diem and the same mile-
age as members of the General Assembly, that is to say, $2.50
per diem for attendance, and |2.50 for every thirty miles of
travel, but no provision was made for the payment of clerks
or other expenses of the convention. (20)
There are three noteworthy points in this act: First, the fact
that while the Northwest ordinance had provided for the ad-
mission of States, as a matter of right, when they should don-
tain sixty thousand "free inhabitants," this act provided for
a convention if there should be sixty thousand inhabitants,
counting all free persons, and "three-fifths of other persons,"
this last phrase, with its euphemistic description of slaves, be-
ing evidently borrowed from the Constitution of the United
States; second, that while the act purported to provide for
the enumeration of the inhabitants of the entire Territory, it,
in fact, only made provision for an enumeration of the peo-
ple residing in the eleven counties that had been formed out
of the North Carolina cession, there probably being no one
else in the Territory to enumerate, and specifically recited that
the new State was to be formed out of the land ceded by North
Carolina; and, third, a point generally overlooked by our his-
torians, that the census takers were not directed to ascertain
the wishes of the people upon the broad question of admission
into the Union, but only whether they wished for admission
(19) Ibid, sec. 8.
(30) Ibid, sec. 9; Journal of Legislative Council, p. 13.
if there should be found to be less than sixty thousand inhab-
itants.
On July 10, Thomas Hardiman, a representative from David-
son County, entered upon the journal his dissent from this
act on the ground: First, that it was leading the people to a
change of government which they had not requested, and bur-
dening them with additional taxes without a certainty of any
advantages; second, that there were only two sources of rev-
enue for paying the expenses of the Grovernment, one by
travelers, the other by the United States, both of which would
be inadequate; and, third, that in taking the census travelers
might be numbered in each of the counties through which they
traveled, and the people thereby imposed upon. (21)
The census, however, was duly taken, and the Territory-
found to contain 65,776 free white males and females, 973
"other free persons," and 10,013 slaves, making a total of
66,650 free inhabitants, and an aggregate population (includ-
ing slaves) of 77,263. The conditional vote in favor of admis-
sion was 6,504, and the negative vote 2,562, being a majority
ratio of about 13 to 5. In all coimties east of the Cumberland
Mountains the vote in favor of admission largely preponder-
ated; in the Middle Tennessee counties the negative. (22)
Thereupon Gov. Blount issued a proclamation recommend-
ing the people of each county to elect, all free males twenty-
one years and upwards voting, five persons, who should repre-
sent them in a Constitutional Convention, to meet at Knox-
ville on the 11th of the succeeding January. (23)
The elections having been duly held, the convention, on Jan-
uary 11, 1796, assembled in Knoxville, the new town beauti-
(31) House Journal, p. 17.
(■2■^) Certified Schedule of Gov. Blount, dated November 38, 1795; Ram-
sey's Annals, p. 648. Of the three Middle Tennessee counties, tlae con-
ditional vote of Davidson County ag-ainst admission was 517 to 96, and
of Tennessee County, 331 to 58, that of Sumner County not iDeing- given.
It is stated by Mr. Goodpasture, in the article on "Andrew Jackson,
Tennessee, and the Union," cited in note 34, tnfirt, that the adverse vote
in the Cumberland River counties "grew out of the question concerning
the free navigation of the Mississippi River." 1 Am. His. Mag., p. 313.
(33) Proclamation, dated November 38, 1795; Ramsey's Annals, p. 649.
fully situated on. the banks of the Holston, which Gov. Blount
had established as the seat of the Territoirial Grovemment, then
containing some three hundred houses, and enjoying the ad-
vantages of a printing olfice and newspapers, the United
States post, and the sessions of the various courts. (24) Here
writes Dr. Eamsey in the flowing rhetoric with which he
speaks of the associations clustering around the early history
of Knoxville, the "chieftains of the Cherokee nations met Gov.
Blount in Council, smoked the pipe oiE peace and formed the
treaty of Holston; here the pious White pitched his tent in the
wilderness, lived his life in patriarchal simplicity and unos-
tentatio'us usefulness. . . . Here the infant Government of the
Territory was cradled, and nurtured in its youth by the pa-
ternal care of Blount, of Anderson and Campbell. Here, too,
the sages and patriots of 1794 met and made laws." (25).
The sessions of the Convention were held in the office of
David Henley, Esq., Agent of the Department of War, a small,
wooden building, whose last vestiges have long since been
destroyed, but which then stood in the outer part of the town
and was still surrounded by the ancient forest. (26) In this
modest edifice, plain wooden seats and a stand covered with
oil cloth had been arranged, and candles provided to light
their midnight sessions. (27).
However, the convention, though poor in material trap-
pings, was rich in the character of its members. It can safely
be asserted that at no other time in the history of our Com-
monwealth has there ever been assembled a body of men repre-
senting more of the integrity and intellect of the community
than the flfty-flve members of that convention.
(34) Gilbert Imlay's Topographical Description of the Western Terri-
tory of North America (3d English edition, 1797), pp. 516, 535.
(35) Ramsey's Annals, p. 635.
(26) Journal of the Convention (reprint of 1853), p. 31; Ramsey's An-
nals, p. 656. Our fellow member. Col. W. A. Henderson, has informed
me, since this paper was read, that he was told by Dr. Ramsey that the
building was a one-roomed building covered with clapboards and painted
red, the first of that character in the community, and that it stood in a
vacant lot near the edge of a pond, about where the Northern Methodist
Church now stands, on the north side of Church street.
(37) Journal of Convention (reprint), p. 31.
— 10 —
Conspicuous among the representatives from Davidson
County, was a young attorney of whom men were already be-
ginning to prophecy great things, a man of inflexible honesty,
far reaching sagacity and invincible determination, who after-
wards achieved reputation as the first member of Congress
from Tennessee, and as a Judge of its Superior Court, but at-
tained greater fame as a General and the hero of the battle of
New Orleans, and crowned his career as President of the
United States and the people's steadfast friend, that Andrew
Jackson whom history loves to remember by his title of "Old
Hickory."
With him there came from Davidson County, James Eobert-
son, the wise and brave Scotch-Irishman, who had been a
leader among his fellows on the Watauga, and was pre-emi-
nently first among the Cumberland settlers, perhaps, all in all,
the strongest and noblest figure in the pioneer history of Ten-
nessee, whom John Haywood, our learned historian, ornately,
but truly, describes as having "not a noble lineage to boast of,
nor the escutcheoned armorials of a splendid ancestry," but "a
sound mind, a healthy constitution, a robust frame, a love
of virtue, an intrepid soul, and an emulous desire for honest
fame," (28) and of whom it is written in the Blount papers that:
"To his wife he was indebted for the knowledge of the alphabet,
and for instruction how to read and write. To his Creator, he
was indebted for rich mental endowments — to himself for
mental improvement. To his God, was he indebted for that
firmness and indomitable courage, which the circumstances
that surrounded him called so constantly into exercise." (29).
Davidson County also sent another honored son in the person
of John McNairy, who had, under North Carolina, been Judge
of the Superior Court of the counties of Davidson and Sumner,
had been subsequently appointed a Territorial Judge by Presi-
dent Washington, and was later elected a Judge of the Su-
perior Court of the State under the new Constitution, though
he decline d the last office. (.30) With them also came that
(38) John Haywood's History of Tennessee (reprint of 1891), p. 53.
(39) Quoted in Ramsey's Annals, p. 6G5.
(30) Ramsey's Annals, p. 663; The American Historical Mag-azine
(Nashville), vol. 1, pp. 381, 386.
— 11 —
Thomas Hardeman to whose protest against the Census Act I
liave already referred.
Hawkins County sent as its most distinguished representa-
tive, Joseph McMinn, an old Eevolutionary soldier, originally
a Pennsylvania farmer, who was afterwards Speaker of the
State Senate and Governor of Tennessee for three successive
terms; and William Cocke, a former leader and Brigadier Gen-
eral in the Franklin Government and its delegate to Congress,
according to tradition the foremost orator of our pioneer
times, who afterwards, with William Blount, first repre-
sented Tennessee in the Senate of the United States, and
in his varied career served in the Legislature of the four States
of Virginia, North Carolina, Tennessee and Mississippi. (31)
Jefferson County sent, among others, Joseph Anderson, who
had been a Major in the Continental Army, and later one of the
Territorial Judges, and who afterwards succeeded Blount in
the Senate of the United States, (32) and Archibald Koane,
who was afterwards elected a Judge of the Superior Court
and later Governor of the State.
Among the representatives of Knox County was William
Blount, the courtly Governor of the Territory and Superinten-
dent of Indian Affairs, who had already enjoyed the distin-
guished honor of serving as a member from North Carolina in
the Convention of 1787, which framed the Constitution of the
United States, and who was afterwards one of Tennessee's first
(31) Eamsey's Annals, p. 296. In the first volume of the American
Historical Magazine, a work of inestimable value to the students of
Tennessee history, which is now being published at Nashville under the
editorship of Prof. W. E. Garrett, there will be found, at pag-e 234, an
admirable sketch of the life of William Cocke by William Goodrich, con-
taining many interesting incidents and facts not elsewhere accessible.
A genealogy of ' ' The Cocke Family of Virginia, " of which William Cocke
was a member, will be found in volume 4 of The Virginia Magazine, pp.
36-217.
(33) Ramsey's Annals, p. 543. On September 3, 1791, Governor Blount,
in a. letter to General Robertson, said: "Judge Anderson will be at your
Court. I am highly pleased with him both as a man and as a Judge;
he has been a Major in the Continental Service continued to the end of
the War, has supported since the character of a good citizen, is a gen-
teel man and a learned judge and a very agreeable open Companion."
1 American Historical Magazine, p. 193.
— 12 —
two Senators in the Congress of the United States; a command-
ing figure in our pioneer history, standing in bold relief, pre-
eminent in the elegance of his manners, the courtliness of his
demeanor and his political tact; at one and the same time an
aristocrat, and a man of great popularity with the people,
whose fair reputation has, however, been somewhat dimmed
by the unfortunate letter which he wrote to James Carey in
1787, resulting in his expulsion from the Senate, though not
forfeiting the affection and esteem of his fellow-citizens. With
Blount there came James White, the honored founder and first
proprietor of Knoxville, (known in its infant days as "White's
Fort"), whose virtues were transmitted to posterity in the per-
son of his son, the distinguished statesman, Hugh Lawson
White; also, Charles McClung, a prominent pioneer of Scotch-
Irish descent, of first distinction in the early history of Knox-
ville; and John Adair, the former North Carolina entry taker,
who had entrusted to John Sevier the public moneys in his
hands for the purpose of furnishing the expedition of mount-
ain men who marched to and defeated Ferguson at King's
Mountain, and turned the tide of the Revolution. (33)
From Sullivan County, there came William C. C. Claiborne,
who was afterwards elected a Judge of the Superior Court, and
succeeded Andrew Jackson as a Representative in Congress,
being subsequently the first Governor of the Mississippi Terri-
tory, Governor of Louisiana, and one of her United States
Senators-elect at the time of his death; (34) John Rhea, also of
Scotch-Irish lineage, who was for eighteen years a member of
Congress, and George Rutledge, a former member of the Ter-
ritorial Honse of Representatives, for whom the county seat
of Grainger County was afterwards named. (35)
(33) Address ty Judge O. P. Temple on "The Scotch-Irish in East
Tennessee, "published in "The Scotch-Irish in America," third Congress,
p. 170; Ramsey's Annals, p. 236.
(34) See a very interesting and valuable article on "Andrew Jackson.
Tennessee, and the Dnion," by Albert V. Goodpasture, published in vol.
1 of the "American Historical Magazine," at page 209, which is replete
with biographical data as to prominent Tennesseans of early times, that,
so far as I am aware, can nowhere else be obtained.
(3.5) Chapter 13 of the Acts of the 1st Session of the 3nd General As-
sembly of Tennessee.
— 13 —
Samner County sent among its delegates Isaac Walton,
whether of not a descendant of the genial angler does not ap-
pear, and Daniel Smith, who had been the Secretary of the
Territorial Government.
Among the Representatives of Tennessee County were
Thomas Johnson, written in the Journal of the Convention
"Johnston," who was afterwards a member of both houses of
the State Legislature, a Brigadier General, serving in the
(jreek War under Jackson, a candidate for Governor against
Joseph McMinn in 1819, and the father of the more distin-
guished Cave Johnson. (36)
Among the delegates from Blount County was James Hous-
ton, a first cousin of the Rev. Samuel Houston, who drafted the
rejected Franklin Constitution, and of the father of the great
Sam Houston, and afterwards a member of both houses of the
Tennessee Legislature. (37)
Washington County sent, among others, Landon Carter, a
son of that John Carter who had been the oflflcial head of the
Watauga Association, and the father of William B. Carter,
who presided over the Constitutional Convention of 1834, him-
self formerly Secretary of the State of Franklin,
and Speaker of its Senate, and a worthy representative of the
most distinguished family of East Tennessee; (38) John Tipton
the old-time rival of John Sevier in the days of the Franklin
feud, one of the strongest men of our early history, to whose
great ability and forceful character our historians, in their
fondness for his more popular rival, have done but scant
justice; and James Stuart, afterwards first Speaker of the Ten-
nessee House of Representatives. (39)
The other members of the convention, while less notable than
most of those whom I have mentioned, were nevertheless men
(36) See letter from T. D. Johnson, M.D., one of his descendants,
which appeared in the Nashville Banner in the early part of January,
1896; also a sketch of the Johnson family in a letter addressed by Cave
Johnson to his sons January 10, 1862, published in "Picturesque Clarks-
ville,'' at page 289, for many interesting details of which, relating- to
Henry Johnson, I am indebted to the kindness of Mr. Goodpasture.
(37) "The Houston Family," by Rev. S. H. Houston, pp. 25, 126, 210.
(38) Ramsey's Annals, pp. 298, 296, 666.
(39) Ramsey's Annals, p. 658.
— U —
of high standing in the community, who had, almost without
exception, filled various positions of public trust and honor. (40)
It is interesting to note, in passing, that the family names of
at least seventeen members of the convention, to-wit, McNairy,
Robertson, Hardeman, McMinn, Cocke, Anderson, Eoane,
Tjlount, Ehea, Tipton, Shelby, Johnson, Jackson, White,
Smith, Claiborne and Carter, have been preserved to posterity
in the names of the various counties of the State; and two at
least, Jackson and Eutledge, in the nam.es of county seats.
The one unexplained and remarkable fact about the mem-
bership of this convention is that dashing John Sevier, the
handsomest man on the frontier, and the most popular man in
the Territory, who, as we have seen, as a member of the Terri-
torial Assembly, had been an ardent advocate of the Consti-
tutional Convention, was not a delegate. History, so far as I
am aware, fails to solve the riddle of his absence. That it was
not due to waning popularity is shown by the fact that shortly
afterwards he was elected as the first Governor of the State
by a practically unanimous vote.
Dr. Ramsey states that: "Besides the members there was an
immense gathering of the most enlightened, patriotic and in-
fluential citizens, from all parts of the Territory and some
(40) The lull list of the members, as appears fromi the Journal, was
as follows: ITrom Blount County — David Craig-, James Greenaway. Joseph
Black, Samuel Glass and James Houston; from Davidson County — John
McNairy, Andrew Jackson, James Robertson, Thomas Hardeman and
Joel Lewis; from Greene County — Samuel Frazier, Stephen Brooks, Will-
iam Rankin, John Galbreath and Elisha Baker; from Hawkins County —
James Berry, Thomas Henderson. Joseph McMinn, William Cocke and
Richard ]\Iitchell; from JefCerson County— Alexander Outlaw, Joseph
Anderson, George Doherty, James Roddy e and Archibald Roane; from
Knox County— William Blount, James White, Charles JlcClung-, John
Adair and John Crawford; from Sullivan County— George Rutledge, Will-
iam C. C. Claiborne, John Shelby, Jr., John Rhea and Richard Gam-
mon; from Sevier County— Peter Bryan, Samuel Wear, Spencer Clack,
John Clack and Thomas Buckenham; from Tennessee County — Thomas
Johnston. James Ford, William Fort. Robert Prince and William Prince;
from Washington County— Landon Carter, John Tipton, Leeroy Taylor,
James Stuart and Samuel Handley; and from Sumner County— David
Shelby, Isaac Walton, Daniel Smith, William Douglass and Edward
Douglass.
— 16 —
from other States. The occasion demanded great wisdom and
moderation, as well as public spirit and pnblic virtue — and
these were there." (41)
His Excellency William Blount was unanimously chosen
I'resident of the convention; William Maclin, afterwards the
first Secretary of the State of Tennessee, was unanimously
elected Secretary; John Sevier, Jr., Beading and Engrossing
Clerk, by a majority vote; and John Rhea chosen as doorkeeper.
(4:2)
It was then, on motion of Mr. White, ordered that the conven-
tion commence the next day with a prayer and a sermon, to be
delivered by the Eev. Mr. Carrick, (43) the scholarly and ardent
young clergyman, who was the first pastor of the First Presby-
terian Church of Knoxville, and the first and only President of
Blount College, the modest institution of learning established
at Knoxville in 1794 by the Territorial Assembly, from which
today the University of Tennessee proudly claims descent;
though singularly enough the next day's Journal does not show
whether or not Mr. Carrick delivered the prayer and sermon as
requested.
The first two of the fourteen rules of order adopted by the
convention allowed the members to sit in their places with
their heads covered when the President was in the chair, (44)
affording a curious illustration of the survival of the habit of
the British Parliament, originally intended, I suppose, to as-
sert, in a somewhat aggressive and unnecessary form, the
dignity of its members.
A remarkable illustration of the spirit animating the con-
vention was the adoption of a preliminary resolution declaring
that "economy is an amiable trait in any government, and that
in fixing the salaries of the officers thereof the situation and
resources of the country should be attended to," and pledging
the members each to the other that thev would not draw out
(41) Ramsey's Annals, p. 650.
(43) Journal of Convention (reprint), pp. 3, 4.
(43) Journal, p. 4.
(44) Journal, p. 4.
— 16 —
of the public treasury a greater sum than f 1.50 per diem, and
$3.00 for every thirty miles of travel. (45)
The convention then proceeded to appoint a committee of
two members from each county to draft a Constitution, each
county naming its own members. The following committee
was chosen: David Craig and Joseph Black, from Blount
County; John McNairy and Andrew Jackson, from Davidson;
Samuel Frazier and William Rankin, from Greene; William
Cocke and Thomas Henderson, from Hawkins; Joseph Ander-
son and James Eoddye, from Jefferson; William Blount and
Charles McClung, from Knox; William C. C. Claiborne and
John Rhea, from Sullivan; David Shelby and Daniel Smith,
from Sumner; Samuel Wear and John Clack, from Sevier;
Thomas Johnson and William Fort, from Tennessee; and John
Tipton and James Stuart, from Washington.
It appears from the Journal, that Daniel Smith was ap-
pointed chairman of this committee, (46) but it is stated by our
fellow-member, J. W. Caldwell, Esq., from whose scholarly
and invaluable work on the Constitutional History of Tennes-
see I have been obliged constantly to glean and to repeat many
things that have already been better said by him, that it is a
part of the unwritten, though probably authentic, history of
the convention, that "the original draft of the Constitution
was made by Charles McClung." (47)
It would be impossible, as well as unprofitable, to attempt
here to follow chronologically the various events of the twenty-
seven days during which the session of the convention lasted.
Suffice it to say that the draft of the Bill of Rights was pre-
sented by the special committee on Jan. 15 and the draft of the
(45) Journal, p. 5.
(46) Journal, p. 7.
(47) " Studies in the Constitutional History of Tennessee,"' by Joshua
W. Caldwell, p. 86. Letters written by Charles McClung-, now in the
possession of one of his descendants, Mr. C. INI. McClung, of Knoxville,
show him to have been a man of scholarly attainments and an excellent
penman. Inasmuch, however, as Daniel Smith was chairman of the
special committee appointed to draft the constitution, I doubt whether
Mr. McClung was the author of the draft submitted to the Convention,
but think it probable that he was the member who reduced it to writing.
— 17 —
Constitution on Jan 27, and that both were adopted in tkeir
final form on Feb. 6, the last day of the convention. The
Journal of the convention is unfortunately very meagre, re-
porting none of the speeches, and giving the vote upon only
a few of the more important questions. Dr. Ramsey, who
wrote at a time when one member of the convention, Mr.
Mitchell, still survived, says: "Its deliberations are said to
have been marked by great moderation and unusual harmony,
and to have been conducted throughout with singular courtesy,
g'ood feeling and liberality. The speeches of members were
probably few and short. They had met more with the purpose
of deliberating for the public good than for the exhibition of
talents and eloquence." (48)
1 need only add that on each of the several times when the
convention resolved itself into a committee of the whole for
the consideration of either the Bill of Rights or the Constitu-
tion, it gave signal proof of its wisdom by calling James Rob-
ertson to the Chair to preside over its deliberations.
I shall now ask your attention to the second of the two propo-
sitions stated at the outset of this paper, namely, that the Con-
stitution of 1796 was not in any sense a new creation, but was
the result of logical and gradual growth, and, in fact, but the
adaptation and modification, to suit changed conditions, of con-
stitutional principles with which>the members of the conven-
tion had long been familiar.
The men who had thus assembled in this little room had too
much political sagacity and sound judgment to attempt to orig
inate a new government independently of the teachings of the
past. They kneAV full well that they could only create perma-
nent institutions by selecting those principles which experience
had shown to be sound and wise, and building upon these as a
sure foundation, making only such necessary changes as were
suggested by the conditions confronting them. We may aptly
apply to them the words used by James Russell Lowell in ref-
erence to the f ramers of the Constitution of the United States :
They "had a profound disbelief in theory. They were not se-
(48) Ramsey's Annals, pp. 650, 652.
duqed by the French fallacy that a new sj'stem of government
could be ordered like a new suit of clothes. They would as
soon have thought of ordering a suit of flesh and skin."
It was but natural then, that, in casting about for material,
they should have seized that which lay closest at hand: the
Constitution which had been adopted by North Carolina in the
year 1776, about five months after the Declaration of Indepen-
dence, and which breathes largely the same spirit of individual
liberty and of the rights of man. (49)
It was a Constitution under which they themselves had lived
for the intervening fourteen years between 1776 and the crea-
tion of the Territorial Government in 1790; and so well had it
been adapted to their needs that when, in 1784, in their tur-
bulent Franklin convention, the Bev. Samuel Houston, "with
the advice and assistance," as Bamsey tells us, "of some
judicious friends" had submitted to their consideration a
learned and elaborate Constitution, evolved largely from the
inner consciousness of Mr. Houston, and containing much that
was theoretically just, and yet, much that was impractical, as
for example, a provision that the legislative power should be
example, a provision that the legislative power should be
vested in a body of persons "most noted for wisdom and
virtue," who should neither be "of immoral character, or
guilty of such flagrant enormities as drunkenness, gaming,
profane swearing, lewdness, Sabbath breaking, and such
like," nor who should deny the existence of God, a future state
of rewards and punishment, the inspiration of the Bible, or
the doctrine of the Trinity, nor hold a lucrative office
under the State, nor be either "a minister of the Gospel, or
attorney at law, or doctor of physic;" they had rejected alto-
gether this theoretical Houston Constitution, and adopted as
the basis of their revolutionary Government of Franklin the
old North Carolina Constitution, with only a "few necessary
alterations." (50)
(49) Adopted December 18, 1T76. 3 Poore's Charters and Constitu-
tions, p. M08.
(50) Ramsey's Annals, pp. 333, 334, 325, et seq. An exceedingly inter-
esting- discussion of tlie sources of inspiration of Houston's rejected con-
— 19 —
Prom 1776 to 1790 they had lived uninterruptedly under the
North Carolina Constitution, even, to all practical intent,
during the stormy Franklin days; since 1790, they had been
governed by the provisions of the Northwest Ordinance, and
for the last two years had enjoyed the Territorial Legislature
therein contemplated. Four members of the convention had
been members of the first Franklin Convention; (51) three of
the second; (52) and at least three of the third, which had
adopted the North Carolina Constitution as the basis of that
Government; (53) while eight members of the convention had
been members of the House of Eepresentatives in the Terri-
torail Assembly. (54)
It was, hence, most natural that they should have taken as
the basis of their work the North Carolina Constitution, with
here and there a modification suggested by their Territorial
stitution, in which, it is to be noted, the new State was to have been
named ITi'ankland, together with much new light upon the influence ex-
erted upon our early history by the Old Hanover Presbytery, the first
sovith of Mason and Dixon's line, and the Abing-don Presbytery, and
their Scotoh-Irish ministers and Princeton graduates, with new data as
to the Reverends Samuel Houston and Samuel Carrick, and their noble
co-laborers, will be found in a scholarly article by Prof. J. B. Hennem.an
on " Recent Tennessee History by Tennesseans," published in volume 4,
of The Sewanee Review, at p. 439. Prof. Henneman quotes from a con-
temporary pamphlet, advocating Houston's proposed constitution, writ-
ten by William Graham, the principal of "Liberty Hall" Academy, in
Virginia, his former teacher and friend, in which Graham says of the
provisions of the proposed constitution, cited in the text, excluding im-
moral laen from all civil offices, that it is "one of the wisest and best
articles in the universe, and, with other articles, . will do honor
to the gentleman who framed it as long as the English language is un-
derstood, whether the people of Frankland be wise enough to adopt
them or not. " (P. 458. )
(51) Landon Garter, William Cocke, Alexander Outlaw and Samuel
Weir (Wear). Ramsey's Annals, p. 386.
(53) William Cooke, John Tipton and James Roddye. Ramsey's An-
nals, p. 393.
(53) John Tipton, David Craig and James White. Unfortunately,
only a partial list of the menabers of this Convention has been preserved.
Ramsey's Annals, p. 323.
(54) William Cocke, Joseph McMinn, John Tipton, George Eutledge,
George Doherty, Samuel Wear, James Ford and Thomas Hardeman.
House Journal (reprint of 1853).
— 20 —
Government, or a phrase from Houston's Constitution, or
the Constitution of the Lnited States, and with such advance-
ment in the line of republican government as the intervening,
twenty years had rendered possible.
Probably not much influence in this regard can rightly be as-
cribed to the Watauga Association, or the Cumberland Com-
pact, both of which are, perhaps, commonly exalted to too
great dignity as Constitutions or forms of government illustrat-
ing phases in our Constitutional development. The scanty
records which we have of the Watauga Association, and es-
pecially the description of its workings contained in the peti-
tion which was sent by the Watauga people in 1776 for annexa-
tion to the North Carolina Government, and the fragment
which has been preserved of the Cumberland Compact, show
clearly, it seems to me, that these associations, like the later as-
sociation of the people living south of the French Broad and
Holston, were not Constitutions in any true sense of the word,
that is to say, were not and did not purport to be organic forms
of government of free and independent communities asserting
their own sovereignty, but were rather voluntary associations
for common defense formed by the settlers living within
Ihe normal jurisdiction of North Carolina, but beyond its
actual protection, and entered into merely for the temporary
purpose of preserving law and order, and defending them-
selves against their common enemies until such time as they
might be brought within the actual jurisdiction of the mother
State; in short, they were, properly speaking, very dignified
committees of public safety, of unspeakable value and undy-
ing renown, but not, as they are often termed. Constitutions,
or organic forms of government. (55)
(55) See Watauga Petition" (Ramsey's Annals, p. 134); Cumberland
Compact (A. W. Putman's History of Middle Tennessee, p. 94), and Asso-
ciation South of French Broad and Ilolston (Ramsey's Annals, p. 435).
Prof. Frederick J. Turner, in an exceedingly interesting and thoughtful
article on " Western State jNIaking in the Revolutionary Era." published
in the American Historical Review, vol. 1, p. 70. says: "It is not unrea-
sonable to conclude that the sugg-estions of the Wataug-a Association
may have been due to the Regulating Associations (of North Carolina).
But the expedient was a natural one to Scotch-Irishmen, brought up on
Presbyterian political philosophy, and it was a common mode of organ-
— 21 —
I shall now ask your attention, seriatim, to the more im-
portant proTisions of the Constitution, indicating, wherever
possible, the sources from which they were derived.
PEEAMBLE.
The preamble, which recites that the Constitution is oi-
dained and established by "the people of the Territory of the
United States south of the Ohio River, having the right of ad-
mission into the General Government as a member State
thereof, consistent with the Constitution of the United States,
and the cession act of North Carolina," and "recognizing"
the Northwest Ordinance," (56) is noteworthy, not only from
the fact that it purports to have been entered into by all the
people of the territory, whereas, only a portion of the territory
was included in the new State, but also from the fact that these
sturdy frontiersmen did not ask the privilege of admission as a.
State, but in a resolute and dignified manner, asserted their
right to form themselves, as "a matter of course," into a free
and independent State by virtue of the organic laws under
which the Territory had been created.
GENERAL ASSEMBLY.
The main features of the provisions in reference to the Gen-
eral Assembly were taken from the North Carolina Constitu-
tion, with slight modifications, but singularly enough this re-
sult was only reached after very considerable uncertainty and
vacillation.
Under the North Carolina Constitution, the Legislative au-
thority was vested in two distinct branches, a Senate and
House of Commons, the Sienate consisting of one member an-
nually chosen by each county, and the Commons of two mem-
ization at the outbreak of the Revolution. . . On the whole, the
association appears to have been a temporary expedient pending- the
organization of North Carolina's county government, and comparable to
the Western ' Claim Associations ' of later times. The same type of gov-
ernment is to be seen in the Cumberland Association." Prof. Turner
gives, as another instance of similar social compacts made by pioneers
beyond the protection of the laws, the Clarksville Association of 1795.
(Pp. 76, 77, 78.)
(56) 2 Poore's Charters and Constitutions, p. 1667.
— 22 —
bers annually chosen by each county, and one member for each
of six specified towns, members of the Senate being required lo
have resided in the county for one year, and to have possessed
nor less than three hundred acres of land in fee in the county,
and members of the House of Commons, to have resided in the
county for one year, and to have possessed for six months one
hundred acres in fee or for life. (57)
Under the Northwest Ordinance, the members of the Leg-
islative Council, or Upper House of the Territorial Assembly,
were required to possess a freehold of five hundred acres, and
the members of the House of Eepresentatives two hundred
acres within the district. (58)
It is a singular circumstance that, with their experience of
a double house under the North Carolina Constitution, and
the additional examples gives by the Constitution of the
United States and of the Territorial Assembly, the convention
should have apparently been in much doubt as to the advisa-
bility of two houses.
The Journal shows that on Jan. 18, before the committee to
frame the Constitution had reported, the convention resolved
itself into a committee of the whole to consider this question,
and "after some time spent therein." arrived at the opinion
"that the Legislature ought to consist of two houses;" (59)
while later, on the same day, it was determined that the two
houses should be "of equal numbers and equal powers." (60)
On the next day this action was reconsidered, and it was, on
motion of Mr. Rhea, voted that, in lieu of tw^o houses, the legis-
lative power should be vested in "one House of Representa-
tives," and that no bill or resolution should be passed except
by a two-thirds vote. (61)
On the following day, Jan. 20, the convention again reconsid-
ered its former action, and, on motion of ]Mr. Cocke, concurred
in a report of the committee of the whole that, in lieu of a
House of Representatives, the Legislature should consist of
(57) 2 Poore's Charters and Constitutions, Arts. 1 to 6, p. 1411.
(.58) 1 Poore's Charters and Constitutions, p. 430.
(59) .Journal, p. 8.
(60) Journal, p. 9.
(61) Journal, p. 9.
— 23 —
two branches, a Senate and a House of Representatives, or-
auized under the principles of the North Carolina Constitution,
the membership, after the next United States census, to be on
the principle of two representatives to one Senator, provided
that the number of both should not exceed forty until the
population should exceed two hundred thousand, after which
it should never exceed sixty. (62)
Two amendments, proposed by Mr. Anderson and Mr. Clai-
borne, the one striking out the word "Senate," and the other
providing that the Senate should have only a "qualified nega-
tive" on legislation passed by the House, were both lost, or,
to use the old-fashioned phrase of the Journal, "passed in the
negative." (03)
In the draft of the Constitution, which was reported to the
convention by the special committee on Jan. 27, Article I., Sec-
tion 1, relating to the General Assembly, was in substantial
conformity to the report of the committee of the whole which
had been adopted by the convention on Jan. 20. (64)
On Feb. 3, Mr. D. Shelby moved another amendment to this
section, which was postponed by agreement, and Messrs. An-
derson, Shelby and McClung were appointed a committee of
three to redraft this section. (65) The report of this special
committee, which was made and adopted the next day, consti-
tutes Sections 1 to 4, inclusive, of Article I. of the Constitu-
tion, as finally adopted. (66)
The Constitution, as thus adopted, provided that the legisla-
tive authority should be vested in a "General Assembly," con-
sisting of a "Senate and House of Representatives, both de-
pendent on the psople." (Art. I., Sec. ].)
The number of Representatives was to be apportioned by
the Legislature among the several counties, according to the
number of "taxable inhabitants" in each, as determined by
enumerations to be taken every seven years, the total number
never to be less than twenty-two, nor greater than twenty-six,
(63) Journal, p. 11.
(63) Journal, p. 11.
(64) Journal, pp. 11, 13.
(65) Journal, p. 33.
(66) Journal, p. 36.
— 24 —
until the number of taxable inhabitants should be forty thou-
sand, and then never to exceed forty. ^Art. I., Sec. 2.) '
The Senators were to be chosen by districts, to be formed
by the Legislature, in accordance with the number of "tax-
able inhabitants" at the several periods of enumeration, the
number of Senators never to be less than one-third, nor more
than one-half, of the number of Representatives. (Art. I.,
Sees. 3 and 4.)
The Constitution made no difference in the powers of the
two houses, except as to impeachments, which were to be
brought alone by the House, and tried by the Senate. (Art.
IV., Sees. 1 and 2.)
An interesting side light is reflected upon the physical con-
dition of the country at that time, by the provision that the
elections for members should be held open for two consecu-
tive days. (Art. I., Sec. 5.)
aSTo person was eligible to a seat in either house of the G-en-
eral Assembly unless he was twenty-one years of age, had re-
sided three years in the State, and one year in the county, and
possessed not less than two hundred acres of land in the county.
(Art. I., Sec. 7.)
It will be seen that the provisions in reference to the Gen-
eral Assembly were, in the main, taken from the North Caro-
lina Constitution, omitting the representation of towns in the
lower house, changing the name of the lower house, and mak-
ing the qualification of members of both houses as to the
ownership of lands the same, the required number of acres,
two hundred, being apparently suggested by the requirements
for Representatives in the Territorial House of Representa-
tives.
It was also provided, following, with some modification, the
North Carolina Constitution, (67) that no Judge, collector or
holder of public money, not accounted for, Secretary of State,
Attorney General, Register, Clerk of any court of record, or
person holding any office under the United States, should have
a seat in the General Assembly, and that no person should hold
more than one lucrative office at the same time, provided that
(67) 3 Poore's Charters and Constitutions, p. 1413.
— 25 —
neither an appointment in the militia nor the office of a
Justice of the Peace should be considered a lucrative ofQce.
(Art. I., Sees. 22 and 23.)
This latter provision, also taken from the IvTorth Carolina
Constitution, together with another proviso that no member
of the General Assembly should be eligible to any office or
place of trust filled by the General Assembly, except to the
offices of Justice of the Peace, or trustee of a literary institu-
tion, (Sec. 24), shows in a striking manner the general survival,
at that time, of the old English idea, still prevailing in England
to-day, that the office of a Justice of the Peace is a place of the
highest trust, which the best men of the community ought to
assume as a duty imposed by their position, and not merely a
"lucrative" office to be sought after on account of its fees.
GOVEENOK.
In no respect is the advance in democratic ideas more strik-
ingly shown than in the provisions in reference to the Gov-
ernor.
Under the North Carolina Constitution, the Governor was
elected by a joint ballot of the two houses of the Legislature,
held office for one year only; was required to be thirty years of
age, a resident of the State for five years, and the owner of a
free hold estate of one thousand pounds; and was ineligible
for re-election for more than three years in six successive
years. (68)
Under the JSTorthwestern Ordinance, the Governor was re-
quired to have a freehold estate of one thousand acres. (69)
The provisions in our Constitution, which were adopted
without amendment, as reported in the first draft of the Con-
stitution, (70) vested the supreme executive power in a Gov-
eronr, to be elected by the electors for members of the Gen-
eral Assembly. He was required to be at least twenty -five
years of age, to possess a freehold estate of five hundred
acres, to have been a citizen and resident of the State for four
(68) 3 Poore's Charters and Constitutions, Art. 15, p. 1413.
(69) 1 Poore's Charters and Constitutions, p. 430.
(70) Journal, p. 15.
— 26 —
years, and was ineligible for reelection for more than sis
years in any term of eight years. (Ar-t. IT., Sees. 1 to 3.)
This radical change in the manner of the election of the Gov-
ernor, transferring the election from the Assembly directly to
the people, is a striking evidence of the advance which had
been made in republican ideas since the adoption of the North
Carolina Constitution, and the other provisions in reference
to the Governor, especially the reduction of the freehold estate
which he was required to possess, show not only the modifying
influences of the Northwestern Ordinance, but the same gen-
eral advance in democratic sentiment.
THE JUDICIAEY.
The provisions in regard to the judiciary were taken, in the
main, from the North Carolina Constitution, which, after an-
nouncing in the Declaration of Rights that "the legislative, ex-
ecutive and supreme judicial powers of the Government ought
to be forever separate and distinct," in the Constitution proper,
after specifying the number and kind of Judges, provided that
they, together with the Attorneys General of the State, should
be elected by the General Assembly, and hold office "during
good behavior." (71) Apparently it did not occur to the framers
of the North Carolina Constitution that a judiciary elected by
the General Assembly and virtually holding office at its pleas
ure could not be independent and co-ordinate branch of gov
ernment in any just or proper sense of the term.
In the original draft of our Constitulion, as reported by the
committee, it was provided that the judicial power of the State
should be vested in a Superior Court of Law, consisting of
three Judges, a Court of Pleas and Sessions, and in such other
courts as the Legislature might conceive necessary, and that
the Judges of the Superior Courts of Law should also have the
powers of a Court of Chancery until such time as the Legisla-
ture might divest them of their equity jurisdiction and con-
stitute a separate Court of Chancery, (72) but, on motion of Mr.
Robertson, each of these provisions was stricken out, and there
(71) 3 Poore's Charters and Constitutions, pp. 1409, 1413.
(73) .Journal, p. 16.
— 27 —
was adopted in lieu provisions based directly upon tlie North
Carolina Constitution, whereby the judicial power was vested
in such Superior and Inferior Courts of Law and Equity as the
Legislature should from time to time direct and establish, and
it was provided that the Judges and States Attorneys should
be appointed by the General Assembly by joint ballot, and hold
their respective offices during good behavior. (73)
The unfortunate results of having the judiciary directly de-
pendent upon the Legislature were abundantly illustrated in
our history prior to the changes made by the Constitution of
1834 ; we can only wonder that the f ramers of our Constitution,
with the example of the United States Constitution before
them, should have provided as they did.
TAXATION OF LAND.
The provisions on this subject, which have been more bit-
terly assailed than any other feature of the Constitution, were
not derived from the North Carolina Constitution, but were
apparently suggested by the legislation of the Territorial As-
sembly.
In the year 1794, at the first session of the first Territorial
Assembly, held at Knoxville, the question of the proper sub-
jects of taxation had provoked long and vigorous discussion,
and, as the journals of the two houses show, there was for
many weeks a sending back and forth of the tax bill with sun-
dry amendments upon which the two houses were unable to
reach any agreement, the principal dispute being whether
land should be taxed at 12^- cts. or 25 ots. per 100 acres, until,
finally, on Sept. 30, 1794, an adjustment was reached, and a
revenue bill passed providing that all lands should be taxed by
the one hundred acres, and in proportion for a greater or less
quantity, and that the tax on every one hundred acres should
be 25 cents, on each taxable white poll 25 cents, on each tax-
- able negro poll 50 cents, on each stallion |4.00, and on each
town lot 11.00. (74)
(73) Journal, p. 33.
(74) Acts of 1st Session of Territorial Assembly, chap. 3, sees. 1 and 3,
p. 63. Details of this discussion between the two houses will be found
in the Goodspeed Publishing- Company's History of Tennessee, p. 308.
— 28 —
Again, at the special session of 1795, substantially the same
provision was re-enacted, retaining the same basis of taxation,
except that each and every tax vs'as reduced one-half, the pro-
portion and principle, however, remaining the same. (75) This
act of 1795 was the second chapter in the acts of this special
session, and immediately followed the census act relating to
the Constitutional Convention, and bears the same date, July
11, so that the people of the Territory, iu electing their dele-
gates to the Constitutional Convention, had full knowledge
of the system of land taxation which the Territorial Assem-
bly had thought most expedient, and had invariably adopted.
It is not strange, therefore, that the convention should, on
this question, have referred to the experience of the Terri-
torial Assembly, and that in the original draft of the Consti-
tution, as reported by the committee, we should find it pro-
vided that all lands held by deed or grant should be taxed
"equal and uniform," so that no one hundred acres should be
taxed higher than another, except town lots, and that no town
lot or freeman should be taxed higher than one hundred acres,
and no slave higher than two hundred acres. (76)
On Feb. 1, Mr. McMinn moved to strike out the words "town
lots" in this section, which motion "passed in the negative,"
and he then moved that the entire section be stricken out, but
this motion was also lost. (77)
Three days later, on motion of Mr. McNairy, the section was
amended so as to include lands held by entry, and to omit the
restriction that town lots should not be taxed higher than one
hundred acres. (78)
Mr. McClung then again moved to strike out the words
"town lots," and again this motion "passed in the negative."
It was then moved by Mr. Cocke that the section be amended
by providing that no town lot should be taxed higher than two
hundred acres of land, which was agreed to, (79) and the sec-
(75) Acts of 2nd Session of 1st Territorial Assembly, chap. 3, sees. 1
and 3. p. 8.
(76) Art. 1, sec. 32, Journal, p. 14.
(77) .Journal, p. 31.
(78) Journal, p. 27.
(79) Journal, p. 27.
tion thereupon stood in the final form in which it appears in
the Constitution, to-wit: "All lands liable to taxation in this
State, held by deed, grant or entry, shall be taxed equally and
uniform, in such manner that no one hundred acres shall be
taxed higher than another, except town lots, which shall not
be taxed higher than two hundred acres of land each; no free-
man shall be taxed higher than one hundred acres, and no slave
higher than two hundred acres for each poll." (Art. I. Sec. 27.)
Mr. Phelan is so moved by indignation against this, as he
terms it, "monstrous" provision, as to assert that the Consti-
tution of 1796 was "unrepublioan and unjust in the highest
degree;" that it was framed by "land owners" and "land specu-
lators," that "the bulk of the most tillable lands and those
nearest Nashville, Jonesboro, and Greeneville, were in the
hands of a few men," who, by this system of taxation, were
enabled to retain them, and that this constitutional provision
was "an entail law In disguise." (80)
If, however, we consider this provision in the light of the
facts then existing, we can easily see that it was not born in
iniquity or framed in injustice, but that, in fact, it was, at the
time, a fairly equitable method of taxation, the injustice and
inequality of which only developed later with the differentia-
tion in the value of lands. (81)
There was, in fact, at that time no great difference in the
value of lands, as unoccupied lands of great fertility were
easily obtainable on every side. No lands had ever been
sold by the Grovernment at this time at more than fifty
cents an acre, (82) and the sixty-four lots in which Gen. White
had laid off Knoxville, four years before, had been sold at $8.00
each, and then, tradition says, regarded as high. To attempt to
(80) Phelan's History of Tennessee, p. 253.
(81) Mr. Roosevelt, In speaking of Governor Blount's correspondence
on the subject of his land speculations, says, citing- a letter of Thomas
Hart, of Lexington, Ky., written March 29, 1795: "It is amusing' to read
the expressions of horror of his correspondents, when they read that
Tennessee had imposed a land tax." (4 Roosevelt's Winning of the West,
p. 118.) This would indicate that land taxes were not common in those
days, in the new territories, but how this fact was, I do not know.
(83) A summary of the legislation on this point is g-iven in my address
on "Blount College and the University of Tennessee," note 43, p. 34.
— 30 —
make any difference between the value of different pieces of
lands or lots under such circumstances, when the entire system
of government land sales was based on an idea of their equal
value, would then have been to make "much ado about noth-
ing;" in fact, one acre was then worth about as much as
another, one town lot about as much as the one adjacent.
The real error consisted in putting into the Constitution, in a
place of permanency, a provision which would have been, at
that time, just and proper as a statute, but which should have
been subject to easy modification.
DOMESTIC MANUFACTURES.
Section 27 of Article I. contained the provision, apparently
without precedent, that: "No article manufactured of the pro-
duce of this State shall be taxed otherwise than to pay inspec-
tion fees."
QUALIFICATION OF VOTERS.
In the provisions relating to the qualifications of voters are
seen the farthest step taken by the Constitution in the direc-
tion of a purely democratic form of government.
Under the North Carolina Constitution, voters for members
of the Senate must have been inhabitants of the county for
twelve months, and have possessed a freehold of fifty acres for
six months before the election, and voters for members of the
House of Commons were required to have been inhabitants of
the county for twelve months, and to have paid public taxes.
(83)
Under the Northwestern Ordinance, the electors for mem-
bers of the House of Representatives were required to have a
freehold estate of fifty acres. ('^4)
[n the original draft of the Tennessee Constitution, as re-
ported by the committee, it was provided that all freemen,
twenty-one years of age and upwards, possessing a freehold in
the county wherein they might vote, and being inhabitants of
the State, and all freemen who had been inhabitants of any
county for six months preceeding the election, should be en-
(83) Sections 7, S; 3 Poore's Charters and Constitutions, p. 1411.
(S4) 1 Poore's Charters and Constitutions, p. 430.
— 31 —
titled to vote for members of the General Assembly for the
county of their residence; (85) and this clause was adopted as
reported, with only a slight change of phraseology, and ap-
partnt y without any debate whatever. (Art III., Sec. 1.)
This provision virtually established manhood suffrage as to
all freemen, and was the most far reaching provision in the
Constitution of 1796 in the direction of a purely republican
form of government, based ultimately upon the popular will.
Under this clause many free negroes -soted down to the
adoption of the Constitution of 1831.
While discussing the qualification of voters, Jlr. Henderson
and Mr. Outlaw made vain attempts to extend the right of suf-
frage to all persons who had done duty in the militia or were
liable to military duty. (86)
Mr. Anderson also moved that the provision in the original
draft of the Constitution that all elections should be by ballot,
should be striken out, and that all public elections should be,
viva voce, provided, however, that if "after a full and fair ex-
periment "this method should be found "less conducive to the
satisfaction and independence of the citizens" than the method
of voting by ballot, the Legislature might abolish the same by
a majority vote in both houses; but this proposed amendment
was defeated by a vote of 33 to 19 ; being voted for, however,
by Messrs. McNairy, Robertson, McMinn, Cocke and Anderson,
among others. (87)
LEGISLATIVE APPOINTMENT OP JUSTICES.
Under the North Carolina Constitution, Justices of the Peace
weve commissioned by the Governor on the recommendation
of the General Assembly, (88) and this model was virtually fol-
lowed in our Constitution of 1796, by which the Legislature
was given the power of appointing all Justices of the Peace, lo
hold offlce during good behavior, together with all other offi-
ces not otherwise directed by the Constitution; (Art. I., Sec.
24; Art. V., Sec. 12; Art, VI., Sec. 3); and the County Courts,
(85) Journal, p. 16.
(86) Journal, p. 16.
(87) Journal, p. 83.
(88) 3 Poore's Charters and Constitutions, p. 1413.
— 32 —
composed of the Justices of the Peace, were, in turn, given
the appointment of all Sheriffs, Trustees, Registers, Con-
stables and Rangers. (Art. VI., Sec. 1.) (88)
These provisions cause Mr. Phelan to again wax indignant,
and to denounce the Constitution as giving "supreme and des-
potic power" to an Assembly "whose members were nearly all
drawn from that class which had the leisure to be candidates,
and the means to be successful," and he violently asserts
that "the most comprehensive ingenuity, exercised with a view
of devising a plan by which as little power as possible shall be
placed in the hands of the many, and as much as possible in the
hands of the few, could not suggest any improvement in a sys-
tem whose perfection of organization had left unutilized no
expedient consistent with the forms of republican government.
It surpassed the Athens of the Kings. It put to shame the
rotten borough system of Englajid." (89)
We have no reason to believe, however, that at that time
the North Carolina system worked badly, or that the conven-
tion could have had any ground to apprehend those abuses
which afterwards led to the reform movement headed by
William Carroll. Public offices, and especially those of the
Justices of the Peace, seem at that day to have been considered
solely as public trusts; and it is highly improbable that any of
the members of the convention realized the possibility of ring
government, which might result from this provision.
They should be judged by their intention, and not by subse-
quent developments entirely foreign to their expectations.
MINISTERS.
In the original draft of the Constitution, it was declared that
ministers of the gospel, being "by their professions" dedicated
to God and the cure of souls . . . ought not to be diverted from
the great duties of their functions," and, therefore, that no
minister of the gospel or priest should be eligible to the hold-
ing of any civil or military office or place of trust within the
State, (90) but on motion of Mr. Carter, seconded by Mr. Jack-
(89) Phelan's History of Tennessee, p. 253.
(00) Art. viii., ?1; .Tournal, p. 18.
— 33 —
son, this broad disqualiflcation was striken out, and they were
declared ineligible only to seats in either house of the Legisla-
ture. Art. VIII., Sec. 1.) (91) This provision, which is still re-
tained in the Constitution of 1870, followed substantially the
North Carolina Constitution, with merely rhetorical amplifica-
tions. (92)
Oddly enough, it did not follow the example of Mr. Houston's
rejected Franklin Constitution, and also exclude doctors,
attorneys and other worthy people dedicated to the public
service.
EELIGIOUS TEST FOE OFFICE.
Although the North Carolina Constitution had provided
that no person who denied the being of God or the truth of
the Protestant religion, or the divine authority of either the
Old or New Testaments, or who should "hold religious princi-
ples incompatiljle with the freedom and safety of the State,"
should be capable of holding any civil office or place of trust
or profit, (93) the original draft of the Tennessee Constitution,
as reported by the committee, contained no provision whatso-
ever for any religious test for office. However, on motion of
Mr. Doherty, a section was adopted thus disqualifying persons
who publicly denied either the being of a God, or future re-
wards and punishments, or the divine authority of either of
the Testaments; this last clause being subsequently stricken
out, on motion of Mr. Carter, by a vote of 27 to 26. Subse-
quently Mr. Jackson moved to strike out the entire section,
"which was negatived," the word "publicly," however, being
stricken out on motion of Mr. Lewis, leaving the section, in its
final form, likewise retained in the Constitution of 1870, dis-
qualifying any person who denied the being of God or a future
state of rewards and punishments from holding any civil of-
fice in the State. (Art. VIII., Sec. 2.) (94)
(91) Journal, p. 33.
(93) Section 31; 3 Poore's Charters and Constitutions, p. 1413.
(93) Section 32; 2 Poore's Charter's and Constitutions, p. 1413.
(94) Journal, pp. 23, 24, 39. Two days later this same motion to strike
out this clause in reference to denying the divine authority of the Testa-
ments appears to have been again made by Mr. Rhea and again carried
by a vote of 28 to 26. Journal, p. 38.
3
— Si-
lt is eTident that disqualification was not consid-
ered by the framers of the Constitution as inconsistent with
Section 4 of the Bill of Eights, which declared that: "No re-
ligious test shall ever be required as a qualification to any
office or public trust under this State;" it being apparently con-^
sidered that a "religious test" applied only between persons
of different religious belief, and not as to persons having no
religious belief whatsoever.
In short, while the Tennessee Constitution removed the dis-
ability imposed by the North Carolina Constitution, and
retained by that State until 1835, (95) upon those who did not
believe in the Protestant religion, and did away with all dis-
crimination between different religions, denominations or
sects, it still retained the disqualification for civil office of
persons denying religious belief altogether.
LIBERTY OF SPEECH AND PRESS.
Section 19 of the Bill of Rights announced broadly the
freedom of the press and speech, declaring that: "The free
communication of thoughts and opinions is one of the invalu-
able rights of man, and every citizen may freely speak, write
and print on any subject, being responsible for the abuse of
that liberty."
IMPRISONMENT FOR DEBT.
Section 18 of the Bill of Rights declared, following, almost
verbatim. Section XXXIX. of the North Carolina Constitu-
tion: "That the person of a debtor, where there is not a
strong presumption of fraud, shall not be continued in prison,
after delivering up his estate for the benefit of his creditors
or creditor, in such manner as shall be prescribed by law."
Mr. Caldwell states that "this provision appears in the Bill
of Rights of 18.S4, but imprisonment for debt was abolished
by statute in 1842." (96)
NAVIGATION OF THE MISSISSIPPI.
Section 29 of the Bill of Rights declares: "That an equal
participati on in the free navigation of the Mississippi is one
(95) J. W. Caldwell's Constitutional History of Tennessee, p. 97.
(96) Caldwell's Constitutional History of Tennessee, p. 97, note.
— 35 —
of the inherent rights of the citizens of this State; it cannot,
therefore, be conceded to any prince, potentate, power, person
or persons whatever."
This clause, which has likewise found a permanent abiding
place in our several Constitutions, crystalizes one of the most
momentous and interesting chapters in the history of our pio-
neer settlements, and we can well imagine the fervor with
which Robertson and Blount, after their long struggles and
diplomatic intrigues with the wily Spanish for the free nava-
gation of the Mississippi, upon which the welfare of the infant
Commonwealth had been absolutely dependent, voted for
this declaration.
Dr. Ramsey states, upon the authority of the Blount papers,
that this section was adopted through the efforts of William
Blount. (97)
TERRITORY SOUTH OF FRETsTCH BROAD AND
HOLSTON.
Section 31 of the Bill of Rights declares: "That the people
residing south of French Broad and Holston, between the
rivers Tennessee and Big Pigeon, are entitled to the right of
pre-emption and occupancy in that tract."
This short clause brings to mind the long and bloody con-
flicts between the whites and the Indians for the possession of
the fertile valleys lying in that territory, contests in which,
although strict law and strict justice was not always upon the
side of the settlers, so far as the Indians were concerned, yet
certainly, so far as the other citizens of the State were con-
cerned, they had earned, by sweat and blood, with axe and
rifle, a prior claim to the fields which they had cleared and the
cabins which they had raised and guarded. (98) We can but
agree with Dr. Ramsey that "the privilege of pre-emption was
richly deserved." (99)
(97) Ramsey's Annals, p. 654.
(98) A sketch of one phase of this long- struggle will be found in the
address on "Blount College and the University of Tennessee," cited in
note 82, supra, p. 38, et seq.
(99) Ramsey's Annals, p. 655.
— 36 —
STATE NAME.
Dr. Ramsey states that it is probable "that the beattiful
name given to our State in the convention was suggested by
Gen. Jackson," and that the members from the County of Ten-
nessee consented to the loss of this name if it should be trans-
ferred to the whole State; but Mr. Phelan is probably correct
in saying that while "it may have been that Jackson, in com-
mittee, made the formal motion to adopt Tennessee as the
name of the ne^ State" yet "it is not true that he suggested
a name which otherwise might not have been adopted," and
that "the territory south of the river Ohio was already gen-
erally known as the Tennessee country." In support of this
position Mr. Phelan cites an entry made in Bishop Asbury's
diary in May, 1788, and also Winterbotham's America, an old
history published in London in 1795, containing a map on
which the territory is noted as the "Tennassee government."
(100)
I may add that the same name appears on "A map of the
Tennassee Government, formerly part of North Carolina,
taken chiefly from surveys by Gen. D. Smith and others,"
which was engraved in 1793 for "Carey's American Edition
of Guthrie's Geography Improved," and published by Matthew
Carey, a Philadelphia bookseller; while the letter press accom-
panying this map is also entitled: "A Short Description of
the Tennassee Government, or the Territory of the United
States South of the River Ohio." (101)
BOUNDARIES OF THE STATE.
Section 32 of the Bill of Eights sets out specifically the
(100) James Phelan's History of Tennessee, p. 187.
(101) This map and letter press are both in the library of Harvard
University. It was this map which was reproduced, on one-half the
original scale and without crediting- the original source, in the various
English editions of Gilbert Imlay's ''Topographical Description of the
Western Territory of North America," as, for example, in the third
edition (1797), in which it appears, at page 513, as a map published in
London, England, June, 1795, by J. Debrett, Picadilly. It is this same
Imlay map, or one slightly varying-, from another edition, which is re-
produced, on a scale still further reduced, as the frontispiece to Phelan's
History of Tennessee.
— 37 —
boundaries of the State; it will be seen that they include only
the ^lorth Carolina cession, and do not embrace the Southern
strip that had been ceded by South Carolina, and which was
allowed to drift away from us unnoticed.
This strip of territory was afterwards known as the Territory
of the United States South of Tennessee, was subsequently
merged into the territory of Mississippi, and now forms the
northern portion of Georgia, Alabama and Mississippi. (102)
It is .noteworthy that in the original draft of this clause of
the Bill of Eights as reported by the committee, the State
asgerted,in a general phase, sovereignty over its proposed area,
(103) but, on motion of Mr. Anderson, this clause was unani-
mously amended so as to assert sovereignty and right of soil
within the proposed boundaries so far as consistent with the
Constitution of the United States, and recognizing the Articles
of Confederation, the ISTorth Carolina Constitution and Cession
Act, and the Northwestern Ordinance, (104) thus leaving room
for the serious disputes which afterwards arose between Ten-
nessee, North Carolina and the United States as to the owner-
ship of vacant lands. (10.5)
CAPITAL.
On motion of Mr. Adair, Knoxville was made the seat of
government until the year 1804, but this date was afterwards
changed, on motion of Mr. Jackson, to 1802. (106)
The total estimate of the expenses of the convention, as re-
ported by Mr. MeClung, was |3,007.08, including |22.50 for
fire wood, candles, stands, etc., flO.OO for seats, and |2.6o for
three and one-half yards of oil cloth. (107)
Before adjourning, the convention unanimously requested
that the General Assembly would appropriate that portion of
(103) The Public Domain, p. 162.
(103) Journal, p. 8.
(104) Journal, pp. 8, 9.
(105) A historical sketch of this dispute and its settlement will be
found in the address on "Blount College and the University of Ten-
nessee," cited in note 82, supra, appendix B, p. 85.
(106) Journal, p. 24.
(107) Journal, p. 30.
— 38 —
the moneys which had been appropriated for their per diem
and mileage, which they had at the outset relinquished, tO' the
payment of the secretary, clerk, printer and door-keeper, for
whom no provision had been made in the act providing for the
convention. (108)
On February 6, 1796, the engrossed copy of the Constitu-
tion was read and passed unanimously, and entrusted to the
safe keeping of the President of the convention, who was
instructed to forward a copy to the Secretary of State of the
United States. (109)
Five days before Mr. Outlaw had moved whether it was the
sense of the House that if they should not be admitted by
Congress as a member State of the Government, they should
continue to exist as an independent State, but on motion of
Mr. Cocke, the question was postponed; (310) Section 6 of
Article I. of the Constitution provided, however, that the first
election for members of the Legislature (and Governor) should
be held on the second Thursday of the next March and the first
session of the Legislature begin the last Monday of that month.
And thereupon, after directing tlie President of the conven-
tion to issue writs of election for members of the General
Assembly under the authority of the new Constitution, the
convention, on February 6, 17905, twenty-seven days after its
meeting, adjourned sine die. (Ill)
The Constitution was never submitted to the people.
On the whole, in reviewing the work of the convention, we
cannot but feel that the bitter criticisms made by Mr. Phelan,
which I have already noted, are not justified, and that, on the
whole, a sounder criticism, and in fact. an eminently just sum^
m.ary of its work, is contained in the earlier portion of his his-
tory, where he states that this convention "made such changes
in the North Carolina Constitution as were commensurate
(108) Journal, p. 31.
(109) Journal, p. 32.
(110) Journal, p. 30.
(111) Journal, p. 33.
— 39 —
with the progress of democratic ideas in America, giving less
power to the representatives of the people, and more to the
people themselves, 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." (112)
Dr. Monette aptly says, in his history of tlie Mississippi Val-
ley: "The new Constitution in its general features, was more
democratic than that of the parent State, and imposed fewer
restraints not absolutely necessary for good government. In
its provisions it illustrates the principle established by all
subsequent Constitutions, that the new States, as well as the
older which have remodeled their Constitutions, exhibit a uni-
form tendency in the public mind to render government more
and more the instrument of the poular will." (113)
Thomas Jefferson, writes Dr. Ramsey, declared the Tennes-
see Constitution of 1796 to be "the least imperfect and most
republican" of the systems of government adopted by any of
the American States. (114)
That is suited the people of Tennessee is shown by the fact
that it remained unchanged until 1834.
On February 9, Gov. Blount forwarded a copy of the
Constitution to Mr. Pickering, the Secretary of State of the
United States, instructing Maj. Joseph McMinn, the special
messenger, to remain at the seat of the Federal Government
long enough to ascertain whether the members of Congress
from Tennessee would be permitted to take their seats. (115)
In the letter which Gov. Blount sent Mr. Pickering, he
stated that the object of the convention in fixing the last Mon-
day in March for the first session of the State Legislature was
to obtain "a representation in the Congress of the United
States before the termination of the present session." (116)
(113) Phelan's History of Tennessee, p. 119.
(113) History of the Discovery and Settlement of the Valley of the
Mississippi, by John W. Monette, M.D., Vol. 2, p. 280.
(114) Ramsey's Annals, p. 657.
(115) Ramsey's Annals, p. 657.
(116) Quoted in full in Ramsey's Annals, p. 670.
— 40 —
Ou March 28, 1796, the Legislature of the new State met
at KnoxYille, opened the election returns, declared that "citi-
zen John Sevier" had been elected Governor, elected AVilliam
Blount and William Cocke as Senators in the Congress of the
United States, provided for the election of two members of Con-
gress and the selection of presidential electors, and then pro-
ceeded with all ordinary legislative matters; the machinery
of State at once, in all its details and departments, going into
full operation. (117)
On April 8, President Washington laid before Congress
the papers relating to Tennessee's application for admission
as a State, but without recommendation, (118) and, thereupon
there arose a violent discussion. The House committee,
through its chairman, Mr. Dearborn, reported that the citizens
of the Southwestern territory, having formed a republican
government, were entitled to the rights and privileges of a
State, and so declared; but the Senate committee, through
Mr, King, reported against the admission of Tennessee, on
the ground that Congress must have previously enacted that
the whole of the territory ceded by North Carolina, which, it
was stated, "is only a part of the Territory of the United
States, south of the Ohio;" should be made into one State,
before its inhabitants could claim admission into the Union,
and recommended the passage by Congress of a preliminary
bill of this character. The committee further objected that
the enumeration of the inhabitants had not been made by the
authority of Congress, that proper precautions had been
omitted in taking the same, and that it had extended to all the
people in the territory, instead of being confined to the free
inhabitants. (119)
This was, however, largely pretext, rather than the true
reason, the Constitution of the Ignited States fixing no formal
prerequisites to the admission of a new State. The real ground
for opposing the admission of Tennessee into the Union was its
effect upon the balance of power, indirectly perhaps, as sug-
(117) Ramsey's Annals, p. 657, et seq.
(118) Ramsey's Annals, p. 670.
(119) Ramsey's Annals, p. 671.
— di-
gested by Judge Dickinson in his eloquent Centennial address,
with reference to the question of slave-holding, but more es-
pecially with reference to party interests in the approaching
election, it being generally known that the new State would be
anti-Federalist, and would cast its vote for Thomas Jefferson.
(120)
While this debate was pending in Congress, the Senators-
elect from Tennessee repaired to the seat of Government, but
modestly refrained from taking their seats. (121)
In the House the right of admission was supported by
Nathaniel Macon, James Madison, Albert Gallatin, Wm. B.
Giles and Eobert Rutherford. (122)
Mr. Madison said in the debate that the inhabitants of that
district were "at present in a degraded condition," and "de-
prived of a right essential to freemen — the right of being rep-
resented in Congress," that "an exterior power and
authority presided over their laws; an exterior authority
appointed their executive, which was not analagous to the
other parts of the United States and not justified by any-
thing but an obvious and imperious necessity." (123)
Mr. Rutherford said: "He did not wish to cavil with this
brave, generous people. He would have them taken out of
leading strings, as they were now able to stand alone. * * *
We should not, he said, be too nice about their turning out
their toes, or other trifles; they will soon march lustily along.
They have complied with every requisite for becoming a State
of the Union; they wished to form an additional star in the
political hemisphere of the United States." (124)
The bill for admission passed the House by a vote of 43 to
30, but in the Senate there was a tie vote, Tennessee being
admitted only by the casting vote of Mr. Livermore, the acting
President, for which he received bitter criticism, Chauncey
(130) Phelan's History of Tennessee, p. 188.
(121) Ramsey's Annals, p. 671.
(133) Phelan's History of Tennessee, p. 188. Tennessee Centennial
Address by Hon. J. M. Dickinson, Nashville, June 1, 1895, published in
the Nashville Sun, June 2, 1896.
(133) Quoted in Judge Dickinson's Centennial Address.
(134) Quoted in Judge Dickinson's Centennial Address.
— 42 —
Goodrich writing of him to Oliver Wolcott (Senior) that: "It
must be left for him to account for his conduct; his friends are
chagrined No doubt this is but one twig of the
electioneering cabal for Mr. Jefferson." (125)
On May 31, 3796, the act admitting Tennessee was passed,
and the whole of the territory ceded by North Carolina was
•'declared to be one of the United States of America, on an
equal footing with the original States in all respects whatever,
by the name and title of the State of Tennessee," but it was
provided that until the next census, Tennessee should be
entitled to only one representative in the House. (126)
This act was approved by President Washington, on the
same day.
And thus did Tennessee, as our friend Wiltse has said,
"volunteer" into the Union.
Many years afterward, Mr. Calhoun, in a speech delivered in
the United States Senate on the slavery question, less than
one month before his death, said in answer to a question as to
what should be done with California in case she should not be
admitted into the Union :
"Remand her back to the territorial condition, as was done
in the case of Tennessee, in the early stage of the Government.
. . . . She . . . formed a Constitution and applied
for admission. Congress refused to admit her, on the ground
that the census should be taken by the United States, and that
Congress had not determined whether the Territory should be
formed into one or two States, as it was authorized to do under
the cession. She returned quietly to her territorial condition.
An act was passed to take a census by the United States, con-
taining the provision that the Territory should form one State.
All afterwards was regularly conducted and the Territory
admitted i n due form as a State." (127)
(135) Phelan's History of Tennessee, p. 188.
(136) 3 Poore's Charters and Constitutions, p. 1677: McMaster's His-
tory of the People of the Dnited States, vol. 3, p. 385.
(137) Speech delivered March 4, 1850; quoted in paper on "The Ad-
mission of Tennessee into the Union," read before the Tennessee Histor-
ical Society on April 3, 1850, and printed in vol. 1 of the American His-
torical Magazine (Nashville), at p. 330.
— 4:3—.
In the statements that Tennessee was remanded to her terri-
torial condition and quietly returned thereto and that a new
census was taken under the directions of Congress, Mr. Cal-
houn, as we have seen, was in error, the true status of affairs
pending the admission as a State being more correctly as well
as picturesquely described in a paper read before the Tennes-
see Historical Society by Prof. Nathaniel Cross, a few days
after Mr. Calhoun's speech, in which he says :
''The first session of the State Legislature began more than
three months, and closed more than two months, before Con-
gress iuTested her with attributes of sovereignty. While the
Conscript Fathers on the other side of the mountains were
telling her messenger, Mr. McMinn, and her representative, Mr.
White, that she must remain a while longer in her pupilage
and mend her manners and then come back and knock again
foi admission more civilly, this young cismontane sister seems
to have flouted their parental counsel and without further
ceremony to have taken her place in the sisterhood of repub-
lics, and gone to work in the exercise of sovereignty, in organ-
izing her courts of justice, appointing her State officers, char-
tering seminaries of learning and providing for the election
of members of Congress, and Presidential Electors. (128)
On July 4, Gov. Sevier called a special session of the
Ijegislature to straighten out the various complications that
had arisen. In his message he said :
''I have the pleasure of announcing to you, gentlemen, the
admission of the State of Tennessee into the Federal Union, a
circumstance pregnant with every prospect of peace, happi-
ness and opulence to our infant State. The period has now
arrived when the people of the Western Territory may enjoy
all the blessings and liberties of a free and independent repub-
lic." (129)
To this message the Assembly, through Mr. Rhea, replied:
"We rejoice with you, in the event of this State being formally
admitted into the Federal Union, and our minds are filled with
the most pleasing sensations, when we reflect on the prosperity
(138) Paper cited in the foregoing- note, 1 Amer. Hist. Mag-., at p. 333
(139) Ramsey's Annals, p. 673.
— 44 —
and political happiness to which we yiew it as a certain pre-
lude." (130)
Shortly thereafter, the Legislature passed the necessary
remedial acts; William Blount and William Cocke were re-
elected as Senators and Andrew Jackson was elected as the
first member of Congress from the State of Tennessee.
And thus, under such auspicious circumstances, and with
gallant John Sevier at the helm of government, did Tennessee
enter upon its history as the sixteenth State of the Federal
Union.
(130) Ramsey's Annals, p. 673.
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