Our Supreme Court has held that while the records. of the Franklin courts are not themselves legal evidence, the proceedings of those courts might be proved by witnesses, and that their decisions were obligatory unless incompatible with justice.32

In 1786 the Legislature of North Carolina declared, in effect, that the decisions of the Franklin courts should stand when compatible with justice, but that persons unjustly injured by them should have remedy at common law.33

In conclusion it would seem that the impartial student can hardly deny that, in the beginning, the Franklin movement was justifiable, the people believing, not without reason, that a government of their own was a necessity. In view of the fact that the Franklin country unquestionably belonged to North Carolina, and that the State had formally declared that its jurisdiction should continue until the acceptance of the cession by the general government, the technical right was with North Carolina, from the first. Its conduct after the cession, and the manner and spirit in which the cession was made may be censured severely and justly.

The repeal of the cession Act removed the immediate cause of the declaration of independence, but at the same time it suggests a consciousness of the in

32Ingram's Heirs v. Cocke, 1 Tennessee Reports, page 22. 33 Acts of North Carolina, 1786, chapter XXIII.

sufficiency of the reservation of jurisdiction by the State, and of the injustice of its policy after the cession.

Probably it is true that the movement should have been abandoned when the cession was recalled, but there were other grounds of just complaint and it was not so easy to consider the matter with impartiality and serenity then, as it is now after the lapse of more than a century, and however philosophically we may consider the subject, a Tennesseean will with difficulty withhold his sympathy from Franklin.

During the existence of the Franklin government, many settlers, relying on its treaties with the Indians, had taken up lands South of Holston, French Broad and Pigeon Rivers. The authority of North Carolina, when restored did not extend to this territory, and the people being left to their own devices, formed a government of their own declaring their purposes in the following language: "Being at present, destitute of regular government and laws and being fully sensible that the blessings of nature can only be obtained and rights secured by regular society, and North Carolina not having extended her government to this quarter, it is rendered absolutely necessary for the preservation of peace, the good order, and the security of life, liberty and property to individuals, to enter into the following social Compact as a temporary expedient against greater evils." 34

34 Ramsey's Annals of Tennessee, page 435.

Under this Compact the people south of French Broad and Holston lived until their lands were incorporated in the County of Sevier in 1794. At least such seems to be the fact although it has been asserted that their government possessed no vitality after 1790.

CHAPTER IV.

NORTH CAROLINA INSTITUTIONS.

In May, 1790, Congress organized the "Territory of the United States South of the River Ohio," assigning to it the form of government already in operation in the North West Territory. North Carolina had stipulated, however, that her own laws should remain in force in the "western lands" until changed by the Legislature.

The Territorial Legislature made very few changes, and when Tennessee became a state in 1796, the laws of North Carolina were, without any material exceptions, still in force.

The Tennessee Constitution adopted in 1796, was essentially a reproduction of the North Carolina Constitution of 1776, and the laws of the parent State long remained the laws of Tennessee. Hence, a survey of the Colonial and of the earlier State institutions of North Carolina is a necessary part of a study of the Constitution and institutions of Tennessee.

North Carolina was altogether an English Colony, so far as its laws and institutions were concerned. Its institutional history began in 1663 when the King of England made to the Lords Proprietors the first of the famous grants of lands, embracing North and

In

South Carolina, Tennessee and indefinitely more. that year Sir William Berkeley, Governor of Virginia, representing the Proprietors, went to Albemarle, and appointed William Drummond, Governor. According to Berkeley's instructions from the Proprietors the Governor was to nominate six persons as a Council, and the Governor and the Council were to have the authority to make laws, by, and with, the advice and consent of the free-holders and freemen, or a majority of them, their deputies or delegates. The laws so enacted were to be transmitted, within one year, to the Proprietors for approval or rejection. The Governor and Council were to have power to grant land to settlers, and to do all other things necessary to the welfare of the people.1

This order of the Proprietors was acted upon, but to what extent cannot be stated with certainty. It appears that Drummond granted lands, and sat with his Council as a court, and it is reasonably certain that there was a meeting of the Assembly in 1665. In that year the Proprietors adopted a plan of government which amounted to little more than a confirmation of the instructions theretofore sent out. It is known as the Concessions of 1665, but was not received in the Carolinas until 1667. These Concessions were intended to be temporary, but we shall see that, in effect, they became permanent. Looking to the purposes of

1Colonial Records of North Carolina, volume I, pages