_EARLY TENNESSEE LEGISLATION._
The first legislative act passed in what is now the state of Tennessee
was an “Ordinance of the Governor and Judges of the Territory of the
United States of America South of the River Ohio, for circumscribing
the counties of Greene and Hawkins, and laying out two new counties,
Jefferson and Knox.” This act was passed June 11, 1792, and describes
with minute particularity that part of the boundaries of the old
counties affected by it, as well as those of the new counties created.
The act appoints Charles McClung and James Maberry to run and mark
certain parts of the lines, and Alexander Outlaw and Joseph Hamilton to
run and mark the other parts. It also directs that the Courts of Pleas
and Quarter Sessions for Knox county be held at Knoxville, for the
ensuing year, on the third Mondays of January, April, July and October,
and for Jefferson county at the house of Jeremiah Matthews, on the
fourth Mondays of the same months, “for the administration of justice.”
The second ordinance passed by the same authority is one the example
of which it were well we had followed, but, alas! we have not. This
ordinance, in a preamble, recites that, “whereas, doubts have arisen
whether the several Courts of Pleas and Quarter Sessions in this
Territory have by the laws of North Carolina authority to levy taxes
for building or repairing court houses, prisons and stocks in the said
counties respectively, pay jurors and defray contingent expenses; and
whereas, it is necessary that these doubts shall no longer exist”; and
then proceeds to authorize and empower the courts to levy and collect
a tax for the purposes named--not to issue bonds, and entail their
payment, with interest, upon future generations.
The ordinance provides that the tax so levied and collected by the
several counties shall not exceed, in any one year, more than fifty
cents on each poll, nor more than seventeen cents on each hundred acres
of land.
Wise legislators were William Blount, David Campbell and Joseph
Anderson, who constituted the legislative authority. Their example was
followed, after Tennessee was admitted into the Union, by the general
assemblies elected by the people, for a very long period, so that,
whenever money was appropriated or a county authorized to make any
expenditures, the same act required the county authorities to levy
a tax, collect it and pay up, instead of piling up debt. Those who
wish to know how it was that Tennessee made such rapid strides in the
production of statesmen, the building up of a name, the development
of her natural resources, and advancement in education and the very
highest order of civilization, for the first half century of her
existence, have but to study the legislative history of that period.
“The Governor, Legislative Council and House of Representatives of the
Territory of the United States of America South of the river Ohio”
passed an act, September 30, 1794, entitled “An Act for the relief of
such persons as have been disabled by wounds, or rendered incapable
of procuring for themselves and families subsistence in the military
service of the territory, and providing for the widows and orphans of
such as have died.”
The act provides that persons of the description mentioned in the
caption must apply to and establish their right to an allowance, under
the act, before the county court; that the county court shall make an
allowance “adequate to their relief for one year--which allowance shall
be continued for the succeeding year and so long as such court shall
certify such person to continue under the description aforesaid”; that
when such certificate was “countersigned by the Governor and President
of the Council and Speaker of the House of Representatives, together
with their order or certificate for the said allowance, it shall be a
sufficient voucher to any sheriff, collector or treasurer paying the
same, in the settlement of their public accounts.”
On August 26, 1776, Congress promised, by a resolution, to the officers
and soldiers of the army and navy who might be disabled in the service,
a pension, to continue during the continuance of their disabilities.
On June 7, 1785, Congress recommended that the several states should
make provision for the army, navy and militia pensioners resident with
them, to be reimbursed by Congress.
On September 29, 1789, an act was passed providing that the military
pensions which had been granted and paid by the states, respectively,
in pursuance with the foregoing acts to invalids who were wounded and
disabled during the late war, should be paid by the United States from
the fourth day of March, 1789, for the space of one year.
The act of March 26, 1790, appropriated the sum of $96,979.72 for
paying pensions which may become due to the invalids.
The act of April 30, 1790, provides for one-half pay pensions to
soldiers of the regular army disabled while in line of duty; and the
act of July 16, 1790, provides that the military pensions which have
been granted and paid by the states respectively shall be continued and
paid by the United States from the fourth day of March, 1790, for the
space of one year.
There were several other similar acts providing for the yearly payment
of pensions, but the first general act which made a regular provision
for the pensioning of commissioned and non-commissioned officers,
musicians, soldiers, marines and seamen, disabled in the actual service
of the United States, and in line of duty, by known wounds received
during the Revolutionary war, was the act approved on March 10, 1806,
which provided by its terms that it should remain in force for and
during the space of six years from the passage thereof, and no longer;
but it was subsequently revived and kept in force by the acts of April
25, 1812, May 15, 1820, February 4, 1822, and May 24, 1828.
And so it appears, that the “Governor, Legislative Council and House
of Representatives of the Territory of the United States of America,
south of the river Ohio,” passed an act unconditionally and permanently
pensioning disabled soldiers and militiamen, and the _widows_ and
_orphans_ of such as had died from wounds, twelve years before such an
act was passed by the Congress of the United States.
It would not be in keeping with the main purpose of this modest effort
to catch up and put together in their proper places some dropped
stitches in Tennessee history, to go into an examination in detail of
the various acts passed by the legislative authority of the territorial
government and by the earliest sessions of the general assembly of the
state. Believing, however, that it may be profitable, at this time,
to bring into public view some of the great doctrines, principles and
policies that seem to have guided our early legislators, as gathered
from what they did, they will be briefly mentioned, with date,
substance, objects, etc.
The first of the policies indicated was that counties and
municipalities should not contract interest-bearing debts and postpone
their payment for a long period of years. This policy was fixed and
not deviated from; for in every act which authorized a county or
municipality to expend money for the erection of public buildings of
any kind, or for any other purpose, such county or municipality was
also required to levy a tax to pay for it; and, to prevent extravagance
or the erection of a building or buildings for public uses not
required, the act fixed a limit in excess of which tax should not be
levied or collected. Was this because they were wiser than we are? No.
They read the constitution, took an oath to support it, and found that
it said, as it does now, that “the general assembly shall have power
to authorize the several counties and incorporated towns in this state
to impose taxes for county and corporation purposes respectively”; and
they had not then become wise enough to construe the true meaning out
of this provision, and make it mean that the general assembly shall
have power to authorize counties and incorporated towns to borrow
money and issue promises and obligations to pay it ten, twenty or
thirty years after date, with interest payable semi-annually. If some
holder of such promises to pay, or of bonds issued by a county or an
incorporated town or city, should be called upon to point out that
provision in our constitution which gives power to the general assembly
to authorize a county or municipality to enter into and deliver such
obligations, what section, clause, line or word could be found to make
such bonds legal, valid and binding?
They had the “fee question,” the “school question,” public roads, the
regulation of private corporations, the “gold” or “specie contract”
question, all to deal with; and they dealt with all of them prior and
up to the year 1801, taking hold of and settling these complicated,
vexatious problems in a courageous and statesmanlike way.
The fee act, passed in April, 1796, not only regulated the compensation
of public officers, but fixed the fees of attorneys in civil suits,
from “twelve dollars and fifty cents in any suit in equity,” down to
“one dollar and twenty-five cents in any appeal from the judgment of a
justice of the peace to the county courts.” The fees allowed attorneys
were specified in each character of the various suits, the greatest sum
allowed being twelve dollars and fifty cents.
Two acts, however, ought to have special prominence given to them in
Tennessee at this particular time (March, 1897). One of these, bearing
on the subject of “gold” or “specie contracts,” with the cunning
methods used to ultimately accomplish the repeal of the most important
section in it, is here given in full:
An act respecting dollars and cents, and contracts, and the manner of
keeping accounts, so far as respects the currency in which contracts
shall be made and accounts kept. Passed January 5th, 1799.
SEC. 1. _Be it enacted by the General Assembly of the State of
Tennessee_, That all judgments and verdicts in courts of record, and
by justices of peace out of court, shall be rendered in dollars and
cents, or such parts thereof as the nature of the case may require;
and all executions thereon and all bills of costs shall issue
accordingly.
SEC. 2. _Be it enacted_, That from and after the first day of January,
One thousand eight hundred, all accounts shall be kept, and contracts
made where money is stipulated for, in dollars and cents, or such
parts thereof as the nature of the case may require; and all accounts
kept or contracts entered into, where money is stipulated for, other
than is by this act directed, shall be void and not recoverable by law.
By an act passed October 23, 1799, the second section of the foregoing
act was suspended “until the next stated General Assembly.” At the
next general assembly, November 10, 1801, this second section was
again suspended “until the next stated General Assembly.” At the next
succeeding general assembly, October 25, 1803, the following act was
passed:
Chap. 60. An Act to repeal _part_ [italics mine] of the second
section of an Act entitled An Act respecting dollars and cents,
contracts and the manner of keeping accounts, passed January the
fifth, 1799.
1. _Be it enacted by the General Assembly of the State of Tennessee_,
That so much of the second section of the above recited Act that
requires all accounts kept or contracts entered into, where money is
stipulated for, other than are by said Act directed, shall be void and
not recoverable by law, is hereby repealed, any law to the contrary
notwithstanding, _except_ as respects accounts kept by _merchants_,
_physicians_ and _innkeepers_ [italics mine].
2. _Be it enacted_, That this Act shall be in force after the first
day of September next.
October 3, 1805, another act, of one section only, was passed, as
follows:
An Act to repeal the second section of an Act respecting dollars and
cents, accounts, contracts, &c.
_Be it enacted_, That the second section of the before recited Act,
passed on the fifth day of January, in the Year of Our Lord One
thousand seven hundred and eighty-nine, be and the same is hereby
repealed, anything to the contrary notwithstanding.
The original act passed in January, 1799, was intended to remedy two
evils. The first, but not the chief one, was to put a stop to the
keeping of accounts, the taking of notes or the making of any kind
of contract where payment in money was stipulated for, in pounds,
shillings and pence, and to compel the use in all such obligations of
the terms dollars and cents; and to more effectually enforce this, the
act prohibited courts from rendering judgments, making out bills of
costs or issuing executions for anything but dollars and cents. The
second evil the act, in its original form and provisions, had forever
cut up by the roots was the “specie” account or contract--that is to
say, the shrewd keepers of accounts and money-lenders would embody in
the account, note or other obligation, where money was stipulated for,
the term “specie.” If it was an account, it would be opened something
like this: “Spruce McCay, in account with Ephraim Dunlap--specie”; or
if a note, due-bill or other obligation, the term “specie” usually
followed the “promise to pay” or the statement of the amount contracted
to be paid or acknowledged to be due.
To the close student of the methods which are usually employed by the
artful and designing, these several acts are amusing--first suspending
a particular section, then suspending it again, then repealing part of
it, and finally accomplishing the repeal of the whole section. Now,
note. The first repealing act excepted from its provisions “merchants,
physicians and inn-keepers”; that is, the repealing act was so artfully
worded as to leave the original act in full force against the three
classes mentioned--about the only people who transacted any business
of consequence and who required payment in money at that time. These
could not make any contract, or keep an account, for payment in
“specie”--they must accept payment in the currency of the times. The
system of barter, at this period, between the agricultural class and
the blacksmith, cooper, wagonmaker, shoemaker, etc., was such that
accounts between them were so kept as to be payable in the products
of each, and not in money--no money ever being passed between them
or expected. Thus, this first repealing act, stripped of the film
that shrouded it, simply left the original act in full force against
everybody that it could have affected, except one poor fellow--or one
class of poor fellows--the man or men who had a little bit of money
to loan on a note with “undoubted personal security” or secured by
mortgage.
This first repealing act was “class legislation” so rank and
rotten that the poor fellows who had money to loan--and who had it
passed--became, no doubt, exceedingly solicitous for the well-being,
prosperity and “business interests” of the “merchants, physicians and
inn-keepers” and therefore came forward at the next meeting of the
general assembly, in 1805, with an act repealing the whole of the
second section of the original act; and then they breathed easy and
praised the Lord because they had entirely relieved the “merchants,
physicians and inn-keepers” of this odious act, which had for its
object the prevention of requiring payment in “specie” where money
should be stipulated for.
This last full and final repealing act deserves to be further noted,
and to be remembered with reverence--so to speak--for the reason that
it is the first act passed in Tennessee in which the term “in the year
of our Lord” is used. What an intellectual treat it must have been to
hear the man (not the member of the general assembly) who prepared
this last repealing act, explaining its provisions to the members of
the general assembly, and pointing out to them the great benefits
that were to accrue to the “merchants, physicians and inn-keepers” of
the country by its passage; and also to note with what reverential
humility he bowed his head, and with what unction he read, “‘in the
year of our Lord,’ who has put it into my mind and heart to prepare
this great measure and ask you to pass it”; and (aside) “has also made
me a shining light in the church and the community”--while, all the
time and every minute, his greedy, covetous little soul was becoming
more contracted, and visions of dollars or pounds in “specie” were
blinding him to the great truth that it would be easier for a camel to
go through the eye of a needle than for such as he ever to enter the
domain of “our Lord,” where “specie” is used only to pave streets.
The county court records at Jonesboro show that, early in the nineties
of the last century, slave-holders were emancipating their slaves.
On October 2, 1797, an Act was passed by the General Assembly of
Tennessee entitled, “An Act to confirm the emancipation of a black man
named Jack.” The preamble recites that, “Whereas at July sessions One
thousand seven hundred and ninety seven, John Stone, of Knoxville, in
the State of Tennessee did apply to the County Court of Knox, for a
license to emancipate, and forever set free a certain negro man slave,
named Jack,” etc., “which license hath issued to said John Stone, and
whereas the said John Stone, on the thirty-first day of August 1797
... did emancipate, discharge and forever set free from all manner of
servitude and slavery whatever, the said negro Jack.” The Act then
confirms the emancipation, and confers upon the liberated slave “the
name of John Saunders.”
On November 13, 1801, the General Assembly passed an act, entitled “An
Act empowering the county courts to emancipate slaves,” the preamble
of which recites that, “Whereas the number of petitions presented to
this legislature, praying the emancipation of slaves, not only tend
to involve the state in serious evils, but are also productive of
great expense. For remedy whereof, _Be it enacted_,” &c. The act then
proceeds to confer power and authority upon the county courts generally
to emancipate slaves upon the petition and request of the owners, and
directs the clerks of such courts to record such proceedings and make
out and issue to the emancipated slaves a certificate of emancipation.
These old records will explain why it was that, twenty and twenty-five
years later, the “Manumission Intelligencer” and “The Emancipator”
were published at Jonesboro and the “Genius of Universal Emancipation”
at Greeneville. They show another fact, viz., that long before _Elihu
Embree_,[I] Benjamin Lundy, William L. Garrison and Harriet Beecher
Stowe began the agitation of the abolition of slavery--in theory--in
the public press, these people were not only _thinking_, but _acting_,
on the subject--the great question that ultimately shook the pillars
of the American republic, and earthquaked a continent when the shock
of war came--these people were not only teaching but practising
emancipation. It would not only be unpatriotic, but filial impiety in
the descendants of those people, to allow without protest their fame to
diminish, and their views, deeds and accomplishments to be taken from
them and credited to others.
[Illustration: LIMESTONE HOUSE, 1780.
Home of Elihu Embree, the founder and editor of the first abolition
paper published in the United States. Erected by his brother, Thomas
Embree, about five miles west of Jonesboro, now near Telford’s Station,
on Southern Railway. From a photograph taken in April, 1897.]
It must not be. It was easy indeed, for Embree, Lundy and others to
drop in, twenty to twenty-five years later, and join them in the
advocacy of the policy of emancipating slaves, when they found, or
had heard before coming to the country, that manumission societies
had been in existence for near a quarter of a century before, and
when the county court records disclosed the fact that these people
were practising what they advocated, and when petitions to the
general assembly of the state from the various counties “praying the
emancipation of slaves” were so numerous that they were about to
involve the state in serious evils by turning irresponsible persons
loose upon society and also entailing great expense.
The reader, must not however, confuse the policy advocated and
_practised_ by those people of emancipation or of manumitting their
slaves, with the doctrine of forcible abolition, or of freeing
slaves by legislative enactment, without the consent of the owner.
Petitions, with nearly two thousand signers or names to them, coming
from all settlements in the state (territory) were presented to the
Constitutional Convention in 1796, asking that a provision be embodied
in the constitution prohibiting slavery in the state after the year
1864. This was the voice of prophecy coming up out of the _Western
Wilderness_.
True philanthropy liberates its own slaves, and not other people’s
without their consent.
The first private corporation chartered by the general assembly of
Tennessee was the “Nolichucky River Company,” November 10, 1801. Its
objects are briefly stated to be “to clear out and remove from the bed
or channel of so much of the river Nolichucky as shall be within the
limits of Washington, Greene and Jefferson counties, all and every
obstruction which in any way impede or hinder the navigation of the
same.” The tenth section of the act is as follows:
_Be it enacted_, That three custom houses be established on said
river, for the purpose of receiving toll, in such places as the said
Nolichucky River Company may think expedient; and any boat, craft
or other vessel, entering in above the upper custom house shall pay
at the rate of one dollar per ton; any boat, craft or other vessel,
entering between the upper custom house and the second below, shall
pay at the rate of seventy-five cents per ton; and any boat, craft
or other vessel, entering in between the second custom house and the
third, shall pay at the rate of fifty cents per ton.
It is worth the time of the curious to read the whole of this act, as
it is not probable that another like it can be found in the statute law
of any other state.
Another act deserving our attention is one passed by the third general
assembly, creating the second private corporation chartered in
Tennessee. What a model it was and is for the guidance of all future
general assemblies, and how free we would be today from the many
questions that now vex courts and legislative bodies, if we had only
followed this wise precedent. But we have not; our “swollen estimate
of our own pre-eminence” seems to have so beclouded our minds as to
cut off vision in both directions: too proud and stiff-necked to look
back and study the example and teachings of our fathers, and too
weak-minded, with all our boasting, to see a single span of life into
the future, we have lost that which they, in their far-reaching mental
grasp, held on to in the charter--control and regulation of private
corporations by means of commissions appointed by state authority
and compensated by the corporation, these provisions being part and
parcel of the charter. The act referred to was passed November 14,
1801, and incorporated the Cumberland Turnpike Company--nothing but a
little turnpike company, to build a road or public highway “from the
district of Hamilton, across the Cumberland mountains to the district
of Mero”: but these backwoods pioneers, who (as we, their offspring,
have supposed) did not know how to spell “railroad,” “commission,”
“regulation,” “freight,” etc., actually had sense and foresight enough,
without books and court decisions bearing on the subject to guide them,
to embody in this second charter of a private corporation granted in
Tennessee provisions as follows:
1. It might make by-laws, rules and regulations not inconsistent with
the laws of the state.
2. It must “measure and mile-mark” the whole road, “erect bridges and
causeys” (causeways?), dig and level fields, hills and mountains to the
width of fifteen feet, and maintain and keep the road in good order and
repair.
3. The life of the franchise is limited to a period of ten years.
4. The corporation is required to execute a bond, in the sum of two
thousand dollars, with approved security, for keeping the road in safe
condition and good repair.
5. The Governor shall appoint three commissioners, and they or either
of them shall review and examine the condition of the road once in six
months, and report its condition to the Governor.
6. The company, on the completion of the road, is required to report to
the Governor that the road has been completed in accordance with the
charter requirements.
7. Thereupon, the commissioners are to view and examine the road,
and if they report to the Governor that the road has been completed
in accordance with the true intent and meaning of the charter, the
Governor will then issue a license to the company, permitting it to
erect gates and collect toll.
8. The toll that shall be demanded and received from the various kinds
of vehicles, live stock, footmen, etc., is prescribed by the charter.
9. It provides that, if any person shall sustain any damage on account
of being detained by the keepers of said turnpikes, or on account of
the road being out of repair, such person shall have an action against
the company for the damages sustained.
10. It fixes the compensation of the commissioners at two dollars per
day while necessarily employed, which shall be paid by the corporation.
11. It requires the road to be completed on or before the first day of
September, 1802, in default of which all rights granted by the charter
are forfeited.
This charter takes up one page and two-thirds of another page of the
acts as published, and is embodied, caption and all, in eighty-one
printed lines; and yet almost every conceivable phase of the questions
which have arisen between the people and such corporations, to annoy
both and vex courts and general assemblies, are fully covered in this
short charter, either in specific words, terms and provisions, or in
the true intent and meaning of the whole.
Some features of this charter deserve more than a passing notice. One,
which limited the life of the corporation to ten years, is in keeping
with and conformity to the great doctrine announced in the twenty-third
paragraph of the “declaration of rights” appended to and adopted
as part of the state constitution in 1796, that “perpetuities and
monopolies are contrary to the genius of a free state, and shall not
be allowed”: therefore they limited the life of this “monopoly” to ten
years. As private citizens, the men who composed the general assembly
believed in this doctrine; and, as representatives of the people, they
stuck to it with a firmness and manliness worthy to be followed by all
future legislative bodies.
Another feature of this second charter, which should have commended it
as a model in form and substance to future general assemblies, is the
retention in its face of the right and power of the state to regulate
and control the road, in its condition with reference to the safety of
the travelling public, and the services to be rendered and the charges
to be made therefor, as well as to require the corporation to pay the
agents of the people, who were to supervise and regulate it in these
particulars.
Here again, in this second charter of a private corporation for profit,
is given unmistakable evidence that these early legislators believed
in and adhered to that other fundamental principle proclaimed in the
“declaration of rights”--that “all power is inherent in the people, and
all free governments are founded on their authority and instituted for
their peace, safety and happiness; for the advancement of those ends,
they have at all times an unalienable and indefeasible right to alter,
reform or abolish the government in such manner as they may think
proper.” They had probably not learned, so early, that it would ever
be insisted by anyone that the government could bring into existence
a creature greater and more powerful than the creator; but fearing,
no doubt, that such a claim might be set up, they put in the face of
this charter an answer to any such pretence. It had not probably been
intimated, at that early day, that a government which the people, in
the exercise of their inherent power, could alter, reform or abolish
at their pleasure, could nevertheless by its legislature bring into
existence an invisible, intangible, incorporeal entity which the people
could neither control nor destroy, although they have the power to do
both with reference to the creator of such entity; still, they said
in the charter that all power is inherent in the people, and you take
the rights, privileges and franchises granted, subject to their power
to control and regulate your operations, and your dealings with and
relations to the public.
Two other features of this charter deserve to be thoughtfully
considered. The first is that the corporation is made liable, in the
face of its charter, for damages sustained by any person who shall be
detained by the keepers of the turnpikes or the bad condition of the
road. Under the language of the section, the liability is fixed and
absolute, the plaintiff having to prove only two facts in any case: the
fact that he was detained, and the amount of damage sustained--this was
all; he did not have to prove negligence, or carelessness, ordinary
or gross. The other feature is that which required the corporation to
give a bond, with approved security, conditioned for keeping the road
in good repair. The corporation might become insolvent, go into the
hands of a receiver, come out again under a new organization, load up
again with mortgages first, second and third, stock itself again and
issue first and second preferred and common, and then collapse again;
but the bond which this charter required this corporation to give, and
the security thereon, could not be cancelled, or touched by anyone
except one who had sustained damages by reason of being detained by the
keepers of the gates or the road being out of repair. The corporation
might dissolve, become bankrupt, go out of business--but the bond and
security remained.
What a monument is this charter, granted to a private corporation
for profit, to the wisdom and far-reaching foresight of the pioneer
statesmen who framed and granted it; and how unfortunate it is, for
both the people and for the corporations, that subsequent general
assemblies in Tennessee have not engrafted its principles upon all
charters since granted to private corporations.
“History repeats itself” only when and where human nature parallels
itself: have legislative statesmen duplicated themselves in Tennessee?
FOOTNOTES:
[I] Thomas Jefferson Wilson, an aged, intelligent and
respected citizen, now nearly blind, living at Chesterton, in
Washington county, Tenn., writing to me, April 1, 1897, among other
things, says: “In the spring of 1833 I went to live with Elijah Embree
[brother of Elihu], and continued to reside with him until his death,
in 1846. During this time I had access to all his books and papers, and
I found a copy of ‘The Emancipator.’ I hunted up all of the numbers
that had been issued, and had James Dilworth of Jonesboro to bind
them in book form. Elihu Embree claimed [in ‘The Emancipator’] that
his paper was the first paper ever published in the United States
wholly in the interest of emancipation. It was a monthly paper, and
the first number was published in 1820, during which year Embree died,
and the paper ceased. The first movement that I know of in Tennessee
in the interest of emancipation was among the Quakers. They organized
a society on Lost Creek, in Jefferson county, from which sprang many
similar societies all over East Tennessee. Charles Owens, Benjamin
Lundy and a great many others who were emancipationists moved [from
Eastern Tennessee] to Ohio between 1815 and 1820.”
With reference to this subject of the first abolition paper, see
an interesting note on Elihu Embree, in the interpretation of the
“Centennial Dream,” in the appendix to this volume.