CHAPTER VII.

THE CONSTITUTION OF 1796-Continued.

1796-1835.

Phelan, the historian of Tennessee, declares that "if we examine the Constitution (of North Carolina) of 1776, we will find that it has introduced absolutely not a single feature into North Carolina institutions with which we are not already familiar."1

That Constitution, with a few modifications, was adopted by the State of Tennessee twenty years later, and of this version of the instrument Mr. Phelan says that it contained such changes of the "North Carolina Constitution as were commensurate 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 seeds of future dissentions in the election of county officers and the taxation of land." 2

No Tennessean who writes or speaks of the early history of his State fails to quote Mr. Jefferson's declaration that the Constitution of 1796 was "the

1 Phelan's History of Tennessee, page 196. 2 Phelan's History of Tennessee, page 199.

least imperfect and most republican of the state constitutions." 3

Monette, author of the History of the Discovery and Settlement of the Mississippi Valley, says: "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 uniform tendency in the public mind to render government more and more the instrument of the popular will." 4

It may be well to recapitulate at this point, the important changes made by the Tennessee Convention. The rejection of the name "House of Commons" for the lower house of the Assembly was in good taste and judgment, if it was of no practical importance. The Governor's Council was omitted wisely, as it was a survival of colonial times, and had been productive of discord and trouble in North Carolina. No one will dispute the propriety of omitting borough representation. The property qualification of the Governor was reduced from one thousand pounds worth to five hundred acres of land, a reduction not capable of exact statement on account of the extreme variability of the

3Ramsey's Annals of Tennessee, page 657.

4 Monette, volume II, page 280; quoted by E. T. Sanford; Proceedings Bar Association of Tennessee, 1896, page 130.

value of money in North Carolina, and of land in Tennessee at that time. The property qualification of State Senators was decreased from three hundred to two hundred acres, but in the case of Representatives there was an increase from one hundred to two hundred acres. The religious test was distinctly less severe in Tennessee than in North Carolina, and at least one learned writer on constitutional history says that there was no such test in Tennessee. Annual meetings of the Legislature were the principal safeguard of the Provinces against usurpation by the Governors, and it was natural that North Carolina should retain the custom in its Constitution, but the adoption of biennial meetings in Tennessee was a democratic and well considered improvement and was a proof of the growing confidence of the people. More definitely democratic was the change in the mode of electing the Governor, who was chosen by the Assembly in North Carolina, and by the people in Tennessee. The 19th section of the North Carolina Constitution gave authority to the Governor to lay embargoes and to prohibit exportations for not exceeding thirty days at any one time, but this provision was omitted by the Tennessee Convention with proper regard for the Constitution of the United States. North Carolina made provision for Judges of Admiralty but Tennessee did not. Justices of the Peace in North Carolina were recommended by the Representatives to the Governor, and commissioned by him to hold office

The

during good behavior; in Tennessee Justices were appointed by the Legislature, and commissioned by the Governor, the difference being rather in the wording of the provision than in the actual procedure. It has been shown that in North Carolina there was no express power in the Legislature to create courts, while in Tennessee there was such power. The Tennessee Constitution contained in addition to those already mentioned, a number of provisions that did not appear in the older instrument, but which in the main, were amplifications of those that did appear. North Carolina Declaration of Rights contained only twenty-five sections while that of Tennessee contained thirty-two, but with a few exceptions, the additions were not important, and affected the form rather than the substance of the instrument. Among the important additions are section ten which declares that no person shall for the same offense be twice put in jeopardy of life or limb, and the last clause of section. seventeen which authorizes suits against the State by its own citizens. No provision similar to the one last named is to be found in any of the eighteenth century constitutions except that of Delaware, which authorized suits against the State without limiting the right to its own citizens.5

The North Carolina Declaration of Rights was constructed largely with a view to occurrences under the

5Thorpe's Constitutional History of the American People, volume I, page 61.

provincial government, and contained certain features that were neither necessary nor proper twenty years later, although, there were a few sections in the Tennessee Declaration which were directed against contingencies that could not possibly arise under a republican form of government.

Section 11 of article V, of the Tennessee Constitution ordered that no fine exceeding fifty dollars should be laid upon any citizen of the State unless assessed by a jury of his peers, and this provision, was one of the points of attack when the Constitution was submitted to Congress in 1796, the objection being that, apparently, it discriminated in favor of the citizens of the State. The objection to the Constitution made by the Federalists in Congress, that there was no limit to the power of the Legislature, was not entirely without justification, but was made without regard for, or without knowledge of, section 4 of article X, which ordains that "The Declaration of Rights here enacted is declared to be a part of the Constitution of this State, and shall never be violated on any pretense, whatever. And to guard against transgression of the high powers which we have delegated, we declare, that every thing in the Bill of Rights contained, and every other right not hereby delegated is excepted out of the general powers of government, and shall forever remain inviolate." The real ground of criticism was not the want of any limitation upon the powers of the Legislature, but the excessiveness of the powers