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Organization of the Government.


Declaration of Rights.

barons, had appointed one of its members, the largest landowner in the territory, to draw up its tax proposals, and had striven long for poll taxes and low land taxes against the reverse contention of the more popular portion of the assembly."

The interesting and significant things were that such a rule of taxation should have been placed in a fundamental law intended to be permanent, at a time when the country was grow ing rapidly and when, consequently, divergences in land values must constantly become greater; and that the taxation of town lots should have been limited by what might be deemed reasonable in taxing rural lands. The limitation upon the poll taxes amounted to a concession to the party opposed to the large land-owners.

Politically, the constitution of 1796, while not expressly declaring that the powers of governments are distributed or separated among three branches, devotes an article to each of the legislative, executive and judicial functions, at the beginning of each of which is the declaration that they are respectively vested in the legislature, governor and courts. To the Declaration of Rights is accorded merely a separate article-the last one-instead of one of the two parts of the entire instrument.

The Tennessee convention after omitting the provisions about frequent elections and "recurrence to fundamentals" and those which declared that no law should be suspended without consent of the legislature and that no man was entitled to privileges from the public save in return for services rendered, proceeded to retain the other North Carolina "rights," expressing them sometimes in similar, sometimes in different or qualify ing language, and to add to them a few others.

Since government is instituted for the common benefit, "the doctrine of non-resistance against arbitrary power and oppres sion" was declared to be "absurd, slavish, and destructive to the good and happiness of mankind;" the people were declared to have always the right to alter or abolish the existing government. Religious test for public office was forbidden. Freedom

2See Journals of the Legislative Council and of the House of Representatives, 1794; also 1795.

3XI, 2.

+XI, 1.

XI, 4; but by VIII, 2, denial of certain Christian tenets disqualifies one from holding civil office. Compare 1776 N. C., Const., XXXII.

from unreasonable searches and seizures, in addition to freedom from general warrants, was asserted. Quartering of soldiers in time of peace without consent of the owner of the house or in time of war but in a manner prescribed by law was forbidden.' Citizens unless in the army of the United States or the militia in actual service were to be exempt from corporal punishment under martial law, and compulsory military service was not to be required of citizens willing to pay an equivalent; nor were any man's services or property to be taken for public use without the consent of his representatives and just compensation.1

Bills of attainder were forbidden and to freedom of the press was added freedom of communication; but responsibility for abuse was provided for. Truth, however, was to be allowable in evidence on prosecution for publications concerning public officials, and in all libel indictments the jury was to determine both law and fact, under direction of the court as in other cases. The writ of habeas corpus was made suspensible by the legislature during rebellion or invasion if the public safety so demanded. "Judgment of his peers" as well as the "law of the land" might deprive one of life, liberty or property.* Prisoners were not to be treated with unnecessary rigor, nor might any one for the same offence be put twice in jeopardy of life or limb. To the former rights of a person accused of crime were added right of hearing by himself and counsel, compulsory process for obtaining witnesses in his favor, a "speedy" trial and, finally, a jury of the county or district where the crime was committed, a provision destined to remains and cause much trouble in the future. Citizens of the state were given the privilege, under direction of the legislature, of bringing actions against the state.1


The suffrage provisions were greatly simplified and demo-31. cratized by the convention of 1796. Adult freemen-nothing Suffrage. was said about color-who were inhabitants of the state could vote in a county where they resided and were possessed of a

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32. The Legislature.

freehold; if inhabitants of the county for six months they could vote without further qualification. Electors were to be privileged while going to and from the polls.3 Elections continued for two days.*

The general assembly provided for consisted of a Senate and a House of Representatives," "both dependent on the people." Members of the House were apportioned among the counties according to the number of taxable inhabitants, to be ascertained by periodical census, the number to be not less than twenty-two nor greater than twenty-six until the number of taxable inhabitants should be forty thousand, and after that event at such ratio that the whole number of represenatives should never exceed forty."

The senators were to be from one-third to one-half as numerous as the representatives and were to be apportioned among districts fixed by the legislature containing such number of taxable inhabitants as to be entitled to not more than three. No county was to be divided in forming a district and counties joined must be adjacent. The term of office was two years for both senators and representatives. To be eligible to either house one must be twenty-one years old and "possess in his own right" two hundred acres in the county he represented. had to be a resident of the state three years, and of the county one year.1


The powers of the legislature were more fully specified than in 1776. The quorum was raised to two-thirds, but a smaller number could compel the attendance of absentees. The issu ance of writs of election to fill legislative vacancies passed from the legislature to the governor. Each house could make its own rules, punish disrespect," and with concurrence of twothirds expel a member, though not a second time for the same

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21. 8. This provision makes it possible for a minority to prevent legislative action by absenting themselves from the state. Houston's constitution proposed that in case of no quorum the absentees without "reasonable excuse" should pay the expenses of the house until a quorum was reached. (Sec. 5), Ramsay. J. G. M., Annals of Tennessee, p. 327.


Members had limited privileges from arrest going to or from sessions and were not elsewhere responsible for utterances therein. Instead of voting jointly on extraordinary adjournments the two houses were now merely required to agree. Rejection of a bill was to be final for the session." Sessions were ordinarily to be open.1

To the former safeguards of the public purse was added the definite requirement that no money should be drawn from the treasury but in consequence of appropriation by law. Ineligi bility of an individual to more than one lucrative office was provided for but the North Carolina clause rendering contractors of military supplies ineligible did not commend itself for retention in times of peace. Justices of the peace and officers of the militia, though their offices were not "lucrative," were expressly declared not ineligible to the legislature.*



The Governor


The governor, elected for two years, and ineligible for more than three consecutive terms, was to be chosen by the qualified and Other voters and the election returns were to be opened in the presence Officers. of a majority of each house, who, in case of tie or contest, were to decide who should be governor. The minimum gubernatorial age was reduced from thirty to twenty-five years, the property qualification was to be simply a freehold of five hundred acres, and residence in the state four years. The new powers given the governor were (1) to grant pardons without limitation, save in cases of impeachment, (2) to require information from executive officers,1 (3) to convene the legislature on extraordinary occasions, stating to it the causes therefor. His powers to draw money from the treasury and to lay embargoes as set forth in the North Carolina Constitution were not retained. The governor was given the duty of informing the legislature concerning the state of the government and of recommending legislation,3

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35. The Judiciary.


The Doctrine of Judicial Review.

and was, finally, commanded to take care that the laws should be faithfully executed. The expressed succession to the office of governor extended only to the speaker of the Senate."

The term of the secretary of state was increased to four years and he was expressly given the duties of keeping records of the governor's acts and doing whatever the legislature might require®. The treasurer's term was increased to two years." All appointments not otherwise directed were expressly stated to be by the legislature.8


The power of impeachment of civil officers was vested in the House of Representatives. Conviction could be obtained only by a vote of two-thirds of the Senate, sitting on oath as a court of impeachment, judgment to extend to deprivation of and disqualification from office. Liability to trial in the regular manner existed irrespective of impeachment."

An article of twelve sections defines in considerable detail the judicial system of the state, but leaves the establishment of the courts and appointment of the judges entirely to the legislature within the general mandates for "superior and inferior courts of law and equity" which must be accorded certain specified powers. Judicial officers were to serve during good behavior. A certain number of justices of the peace were required to be established in each county. Later on, as the function of the courts to decide upon alleged conflicts between constitutional provisions and ordinary legislation grew apace, dependence by the courts for their very existence upon the legislature, jealous of this judicially-assumed power, became more and more illogical. There was the possibility of a legislative response in the nature of abolishing the court-which, indeed, actually occurred in Kentucky in the 1820's. The act for overthrowing the court was in turn declared unconstitutional and the whole matter became an issue of partisan politics."

*II, 10.

The speaker "shall exercise the office of governor,”—II, 12.

II. 17.

VI, 2.

SVI, 3.

IV, 1-4.


2V. 1.

SV, 2.

4V, 12.

"The Court

Powers, p. 56.

2, p. 133, seq..

of Governmental

finally prevailed. Bondy, Wm., Separation
(Columbia Studies in History, Economics and Public Law, V,

Collins' History of Kentucky, 1, 218, 222.

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