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JK5225 1796 .S22 

The constitutional convention of Tenness 



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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.