CHAPTER V.
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.
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?