CHAPTER V.

TERRITORIAL GOVERNMENT.

1790-1796.

The Territory of the United States South of the River Ohio, was treated as embracing only the North Carolina cession of 1789, although the Federal government might have claimed the ownership of a strip of land twelve miles wide and four hundred miles long, contiguous to the present State of Tennessee on the south, and extending from the western line of South Carolina, or the "dividing mountains," to the Mississippi River, which had been ceded by South Carolina to the Confederation in 1787.

By the terms of the compact between the United States and the State of North Carolina, the inhabitants of the "Southwest Territory," as it came to be called, were entitled to all the advantages and privileges provided by the Ordinance of 1787 for the government of the Northwest Territory, and by an Act of Congress passed May 26, 1790, the form of government set out in that Ordinance was extended to the new territory. This placed the two Territories on the same footing in all material respects, except that the North Carolina Act and deed of cession, as accepted and ap

proved by the United States contained this important clause: "that no regulations made or to be made by Congress shall tend to emancipate slaves." 1

The organization thus provided for by the Ordinance of the Congress of the Confederation in 1787, as amended by an Act of the Federal Congress, approved August 7, 1789, included a Governor to serve threeyears, a Secretary to serve four years, and three Judges to serve during good behavior. Until the organization of a General Assembly the Governor and the Judges were empowered to adopt such laws as might be necessary, and the Governor was authorized to appoint the civil officers for each County and to establish proper governmental districts in the Territory.

So soon as there should be 5,000 free male inhabitants, of full age, a Legislature was to be chosen upon the basis of one representative for every 500 voters, until there should be twenty-five representatives, after which the Legislature might re-adjust the basis of representation. The General Assembly was to consist of the Governor, the House of Representatives, and a Legislative Council of five members. These last were to be commissioned by the President from a list of ten nominated by the territorial House of Representatives. When the Territory should have 60,000 free white inhabitants, it was entitled to become a

1Poore's Charters and Constitutions, volume II, page

State, and it would seem that under the Ordinance of 1787, it might have been admitted to statehood, in the discretion of Congress, before attaining that population. The military organization was in the hands of the territorial governmeht, except that all general officers were commissioned by the President of the United States. This form of government was in effect in the Territory South of the Ohio, throughout its existence. William Blount was appointed Governor, and qualified September 20, 1790. Daniel Smith was Secretary, and David Campbell, John McNairy, and Joseph Anderson, Judges, John Sevier, Brigadier General for Washington District, and James Robertson for Mero District. The Legislature of North Carolina, before the cession, had divided the "western lands" into two judicial districts: Washington District, which included the counties then organized in what is now East Tennessee, and Mero District, embracing the three Cumberland counties then in existence. This division was retained at first by Governor Blount, who made Washington and Mero also military districts, but in 1793 he created the additional judicial district of Hamilton, composed of the counties of Knox and Jefferson in East Tennessee, without affecting the existing military arrangement.2

The territorial laws, before the establishment of the Legislature, will be found to include two classes: the "Ordinances" of the Governor, and the "Acts" of the

2Laws of Tennessee, Scott's Edition, volume I, page 454.

Governor and Judges, in pursuance of the division of the powers made in the Ordinance of 1787.

In 1793, the Governor was able to certify that the Territory contained 5,000 voters, and therefore was entitled to a General Assembly. Accordingly, in December of that year, a House of Representatives was elected, and on the 24th day of February, 1794, met at Knoxville. At this meeting the representatives nominated the ten men from whom the President of the United States was now to choose the Legislative Council. The other proceedings were characteristic of the time and of the people. The House of Representatives heard a sermon, petitioned Congress for protection from the Indians, and then adjourned, or was prorogued, until August 24th, when the General Assembly met in regular session. It held a special session beginning in June, 1795, and was the only General Assembly of the Territory. The Legislative Council chosen by the President consisted of Griffith Rutherford, John Sevier, James Winchester, Stockley Donelson, and Parmenas Taylor. The House of Representatives had thirteen members, of whom John Tipton, William Cocke, Joseph McMinn, and James White, of Davidson County, are the best known.

Until the meeting of the Assembly, the statutes of North Carolina, and the common law, so frequently adopted by that State, remained in effect and unchanged in the Territory, the cession Act having pro

vided for their continuance until repealed or altered by the "legislative authority" of the Territory.

The first Act of the General Assembly in regular session was a revision of the North Carolina judiciary Act of 1777, and its amendments, so as to adapt them to the condition and needs of the Territory. Very few changes were made, and none of importance, and the court system of the mother State was thus continued, and was in operation when Tennessee became a State. Evidences of a spirit of cautious progress may be found in the territorial Act. For instance, the North Carolina Act provided that "all negroes, mulattoes, Indians, and all persons of mixed blood descended. from Negro or Indian ancestry, to the fourth generation inclusive, (though one ancestor of each generation may have been a white person), whether bond or free, shall be deemed and taken to be incapable in law to be a witness in any case whatsoever except against. each other." 3

The territorial government was liberal enough to curtail this disability by one generation, but was also conservative enough to add that no person of mixed blood in any degree should be admitted as a witness. against a white person, within twelve months after being liberated.*

The Act of 1794 was carefully framed to avoid the repeal of any statute of North Carolina "bottomed"

3 Acts of North Carolina, 1777, November Session, chapter II, section 42.

4Laws of Tennessee, Scott's Edition, volume I, page 471.