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The Governor
and Other

By joint ballot also, they were to elect the more important judges and an attorney-general who were to be commissioned by the governor and hold office during good behavior; further. more, they could appoint certain militia and army officers and were to elect annually a treasurer or treasurers and triennially a secretary of state."

All state officials were made liable to impeachment by the legislature and to presentment of the grand jury of any court of supreme jurisdiction for offending against the state, by violating any part of the constitution, or for mal-administration, or corruption. No person could hold more than one lucrative office at a time-a fact stated in general, and, in several instances in particular,—but militia service and the office of justice of the peace were not considered lucrative. Officials handling public "monies" were made ineligible to other office until they should have satisfactorily accounted for them. Officers in the service of the United States and contractors or agents furnishing military supplies were ineligible to the legislature and Council of State, as were also clergymen. Persons denying certain Protestant doctrines, or whose religious principles were incompatible with the "freedom and safety" of the state could hold no civil office of trust or profit. All officials were required to take an oath to the state and an oath of office."

The General Assembly was authorized to choose annually by ballot, so long as necessary, delegates to the Continental Congress, subject to be superseded at any time, and in no case to serve for more than three successive years.1

The Governor was given permission to exercise all executive powers of government, within, the limitations imposed by the constitution and laws of the state.2 With the advice of the Council of State, he could fill vacancies while the legislature was not in session, and the powers of his office, in case of his absence from the state or his disability, were to be exercised by the speaker of the Senate and then by the speaker of the House until his successor should be named.3 The governor was

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also the commander in chief of the militia and, in the absence of the legislature and with the advice of the Council, he could "embody the militia for the public safety." He could likewise "prohibit the exportation of any commodity," for not exceeding thirty days, at any one time."

"Except where the prosecution" had been "carried on by the General Assembly" or where the law should otherwise direct, he could grant pardons. He was the keeper of the great seal of the state and performed the financial functions that might have been expected of a comptroller in that time; that is, he was to draw for and apply such sums of money as should be voted by the general assembly, for the contingencies of government, "and be accountable to them for the same." He had to sign all commissions and grants of the state."


After making the governor little more than a dependency of the legislature, it is not surprising that the constitutionmakers neglected specifically to assign any recipient of the su- 15. preme judicial power. The existence of "Judges of the Supreme Judiciary. Courts of Law and Equity" and "Judges of Admiralty"-as well as justices of the peace was recognized in clauses making provision for their election and appointment. The future development of the judicial department was left, however, entirely to the legislature—a fact which did not prevent the courts from declaring unconstitutional and void acts of the legislature to whom they owed their existence. In the celebrated case of Bay- Beginnings ard versus Singleton,3 decided in 1787, the judges,

after every reasonable endeavor had been used in vain for avoiding a disagreeable difference between the legislature and the judicial powers of the state. at length with much apparent reluctance, but with great deliberation and firmness, gave their opinion separately, but unanimously



Ib. The only cases which the constitution mentions to be so carried on are impeachments. (Const., XXIII.)

16. The

of the
Doctrine of






Court of Conference of North Carolina, 1 Martin. N. C., 42. This decision is one of the most important early precedents of the doctrine of judicial review. For early Tennessee decisions see Chap. II. See also Chap. XIII.

17. Reflection

of Current Economic Conditions.

to the effect that no act that the legislature could pass

could by any means repeal or alter the Constitution, because, if they could do this, they would at the same instant of time destroy their own existence as a legislature, and dissolve the government thereby established. Consequently the Constitution (which the judicial power was bound to take notice of as much as of any other law whatever), standing in full force as the fundamental law of the land, notwithstanding the Act on which the present motion was grounded, the same Act must of course, in that instance, stand abrogated and without any effect.*

Individual representatives in the general assembly were to recommend, for appointment during good behavior, justices of the peace in their counties, who were to be thereupon commissioned by the governor. The constitution orders a sheriff, coroner or coroners and constables for every county, but does not specify the mode of their election."

It has doubtless been noted that all of the contents of this constitution heretofore mentioned have been confined to statements of rights and provisions for the framework of government together with a few perfectly elementary directions concerning the use of the ballot and deportment in office. They include almost the entire constitution. There is, however, a noteworthy clause ordering the legislature to establish "a school or schools" "for the convenient instruction of youth," and also to encourage learning in "one or more universities."

Furthermore, there are several passages that deserve special notice as reflecting the economic condition of the times. Among them should be mentioned first the clause, "that every foreigner, who comes to settle in this State, having first taken an oath of allegiance to the same, may purchase, or, by other means, acquire, hold, and transfer land, or other real estate; and after one year's residence, shall be deemed a free citizen," reflecting as it does the state's desire for immigration and for a market for its own and its citizens' lands. Experience had shown the confusion resulting from Indian sales to speculators or

The act in question provided for the settlement of certain property rights without trial by jury. See Declaration of Rights of the Const. of 1776, XIV. "Const., XXXIII.



groups of settlers—and such sales were accordingly prohibited." Indian purchase-rights were reserved for the public acting through the legislature. Other clauses already mentioned sought to check encroachments on Indian hunting-grounds and to preserve inviolate colonial land titles.1


The manner of holding land was to some extent limited by the clause that the legislature should regulate entails so as to prevent perpetuities. As the provision authorizing embargoes, already mentioned, was a diplomatic and military rather than an economic measure, it may be said that, just as the simple government set up betokened an agricultural community with no need for any but the most elementary sort of legislation and administration, so the economics reflected was solely that which concerned land.




and Events

AT the time of the Revolution and the change of government 18. in North Carolina the settlement of Tennessee had already be- of Tennessee gun and with it the great westward migration movement which Leading Up was destined to be the prime economic event of the period-and Organization of which the watchword was land.

For many years past the wasteful methods of agriculture in use in the tidewater districts had been gradually consuming the fertility of the soil without replacing it and increasing popu lation in the older portions of the colonies, augmented by unprecedented immigration from abroad, had been forcing the frontier farther and farther inward. The farther-most settlers,


1D. R. XXV.

Const. XIX.

General References: Journal of the Convention, 1796; Caldwell, J. W., Constitutional History of Tennessee; Sanford, E. T., The Constitution of 1796, (in Proceedings of the Bar Association of Tennessee, Vol. 15, p. 92, 1896); Phelan, James, History of Tennessee; Roosevelt, Theodore, The Winning of the West. For the text of the Const. of 1796, see, infra, Appendix 1.

to Its

as a State.

19. Land

pursuing the line of least resistance, had followed in the wake of the hunter and trader down the western valleys of Virginia to the headwaters of the Tennessee river and, crossing the parallel 36° 30', had unconsciously entered the western country of North Carolina. Lands had been purchased from the Indians and a temporary government-independent and thoroughly democratic-had been set up on the Watauga by 1772.5

Always in the vanguard were to be found men of ambitious schemes, men who sought wealth in prior claims to the soilSpeculation. which they would dispose of to those who should come after, seeking to make it fruitful. Pushed on by economic necessity and led by dreaming speculators-and perhaps by some, too, who dreamed rather of fame or of empire-people come in gradually increasing numbers to endure the hardships of pioneer life, to tempt the bitter cruelty of the Indians and, most important, to make a clearing, plant a field of corn and seize possession of the land in fact.

It was not without some misgivings that they invaded a country that seemed to belong already to its natives, but the irresistible logic, expressed long afterwards by Robertson when he said

I have doubts whether a tribe of Indians settling a hundred or two miles in villages should have, and hold, a good title to a large unsettled Country about them,"

must have been evident even to speculators, and gradually by fair means or foul, the white man made the land undeniably his


In 1778, all of its western territory having been organized as Washington County, North Carolina opened a land office, and allowed persons desiring land to file with the Entry Taker a description and location, giving the remarkable natural objects by which it could be identified, after which it would be surveyed and a grant for it would be issued by the state. A

Caldwell, op. cit., 16, quoting Bancroft, Hist. of U. S., III, 403, says that the Watauga settlers "framed laws for their present occasions, and set the people of America the example of erecting themselves into a state independent of the authority of the British King."

Letter to Willie Blount, 1811. Draper Mss. U. V, 192.

"See Katherine Coman, Industrial History of the United States, 127, 128; Smith. L. D., The Land Laws of Tennessee, Proceedings of the Thirteenth Annual Meeting of the Bar Association of Tennessee, pp. 49, seq.

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