This report would have created five Supreme Judges, but the provision was not to become effective until November, 1871, and meanwhile the Governor was to appoint four temporary Supreme Judges, who with the three permanent Judges then incumbent, were to constitute the Supreme Court until that date.18

The purpose of this last provision is obvious.

At a later date, Thomas M. Jones offered a resolution to the effect that Judges and Attorneys General be appointed by the Legislature, as under the first Constitution.19

Neill S. Brown moved that Supreme Judges be appointed by the Governor with the consent of the Senate, and inferior Judges and Attorneys General elected by the people.20

Mr. Thompson of Davidson county would have had the Supreme Judges appointed by the Governor, the Attorney General and Reporter appointed by the Supreme Court, and inferior Judges and District Attorneys elected by the people, and nearly one-third of the delegates favored this plan.21

Mr. Burton of Rutherford, favored a Supreme Court of five Judges one to be elected by the voters of each grand division, and the remaining two appointed by the Governor, and confirmed by the Senate.22

18 Journal, Constitutional Convention, 1870, page 126. 19 Journal, Constitutional Convention, 1870, page 207. 20 Journal, Constitutional Convention, 1870, page 207. 21 Journal, Constitutional Convention, 1870, page 207. 22 Journal, Constitutional Convention, 1870, page 209.

The motion that the Supreme Judges be elected by the qualified voters of the State was made by Joseph B. Heiskell, of Shelby County, chairman of the judiciary committee, and was adopted by a vote of forty-six to twenty-five.23

The motion, however, does not seem to have represented Mr. Heiskell's opinion, and probably was offered as a compromise. Among those opposing it were such men as Baxter, Neill S. Brown, John F. House, Key, Nicholson, Staley and Stephens. The Republican members nearly all favored the election of the Judges by the people, while the Democrats divided almost equally.

It is not easy to account for the reactionary sentiment displayed in this matter, except upon the theory that disturbed political conditions in the State, and, especially, apprehension of the untried strength of the negro vote, influenced the opponents of popular election. Certain of the members, including Baxter and Staley, are known to have favored the appointment of Judges without reference to existing conditions. Undoubtedly the Convention reached the proper conclusion, except in the matter of the election. of the Attorney General and Reporter. The willingness of so large a part of the delegates to take the election of the Judges away from the people after it had been conferred upon them by the amendments of

23 Journal, Constitutional Convention, 1870, pages 218

1853, showed great confidence that, on account of prevailing conditions, the work of the Convention would be approved by the people, and it is very certain that there will never again be a Constitutional Convention in the State which will be so nearly independent of popular opinion on a matter of this kind.

A motion to reduce the salaries of Judges of the Supreme Court to $2,500, and all inferior Judges to $2,000, fortunately failed. Two resolutions were introduced by different members providing for the election of the Secretary of State, Treasurer, and Comptroller, by popular vote,24 while another, going to the opposite extreme, would have vested the appointment of the Secretary of State in the Governor, subject to the approval of the Senate.25

The provision of the Constitution of 1834 upon the subject of private laws had not been effective, but the Convention of 1870 failed to approve a resolution divesting the Legislature of the power to pass such laws and vesting it in the courts. The proposition was not a well considered one, but illustrates the defects inherent in our system in the matter of local self government. Mr. Kirkpatrick deserves honorable mention for introducing a resolution, which, unfortunately, was rejected, providing that the property and the money rights of married women at the time of

21 Journal, Constitutional Convention, 1870, pages 34 and 75. 25 Journal, Constitutional Convention, 1870, page 53.

marriage, or acquired afterwards in any way, should not be subject to the debts of the husband, and directing that laws be passed providing for the registration of the wife's separate property. In nothing are our laws more unjust than in the matter of the property and contract rights of married women, although, since 1870, the courts have been accomplishing, with good intention, but slowly and inadequately, what might have been done effectually by the adoption of this resolution.26

It is surprising to find one delegate calling for a report of the finance committee upon the expediency of re-chartering the Bank of Tennessee.

Mr. Heiskell of Shelby County, introduced a resolution permitting the exemption of new manufacturing establishments from taxation for a period not exceeding ten years, and making their profits subject to a special tax, but it was rejected by a vote of twentyseven to forty-four.27

Thirteen of the leading members of the Convention united in a protest against that feature of section 28 of article II, which authorizes the legislature to tax merchants in such manner as it may from time to time direct. The protest declared that the corresponding clause in the Constitution of 1834 had been used continually to "discriminate" grievously against a portion of our citizens, to overrate them with burdens,

26 Journal, Constitutional Convention, 1870, page 191. 27 Journal, Constitutional Convention, 1870, pages 272-274.

from which others are protected, by taxation amounting to from ten times to one hundred times the amount imposed on other citizens on the use of the same amount of property or capital."28

The protest declared the policy in question to be odious, abhorrent to the sense of justice, and calculated to depreciate the interests of trade and commerce. Abstractly considered, the protest was well founded, but the State had been committed, for years, to the policy and has adhered to it to the present day, making free use of the Legislative power to create privileges.

The removal of the republican office holders naturally excited the disapproval of the representatives of that party in the Convention, which was strongly expressed in a protest presented by Henry R. Gibson29 in which it was declared that the doctrine that the amendment of the Constitution vacated every office in the State not expressly excepted, was a political heresy; that the vacation of the offices was not a question before the people when the delegates were elected, and not a part of the "province" of the Convention; that the vacation of the offices of Judge, Chancellor, and States Attorney was a direct violation of political faith, such offices having been filled recently by a popular election demanded and brought on by those who now sought to vacate them, before

28 Journal, Constitutional Convention, 1870, page 301. 29 Journal, Constitutional Convention, 1870, page 253.