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Bill Thayer

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This webpage reproduces a chapter of History of the
Lost State of Franklin

Samuel Cole Williams

published by the
Press of the Pioneers,
New York, 1933

The text is in the public domain.

This page has been carefully proofread
and I believe it to be free of errors.
If you find a mistake though,
please let me know!

This site is not affiliated with the US Military Academy.

 p339  The Constitution
of the State of Franklin

Your committee appointed to collect and adjust the reasons which impel us to declare ourselves independent of North Carolina, report as follows, to‑wit:

Whereas, we, the freemen inhabitants of part of the country included in the limits of an Act of North Carolina ceding certain vacant territory to Congress, having declared ourselves independent of North Carolina, a decent respect to the opinions of mankind make it proper that we should manifest to the world the reasons which induced us to a declaration, which are as follows:

First. That the Constitution of North Carolina declares that it shall be justifiable to erect new States whenever the consent of the Legislature shall countenance it, and this consent is implied, we conceive, in the cession act which has thrown us into such a situation that the influence of the law in common cases was almost a nullity, and in criminal jurisdiction had ceased entirely; which reduced us to the verge of anarchy.

Second. The Assembly of North Carolina have detained a certain quantity of goods, which was procured to satisfy the Indians for the lands we possess, which detainure we fully conceive has so exasperated them that they have actually committed atrocities upon us, and we are alone compelled to defend ourselves from these savages.

3rdly. The resolutions of Congress held out from time to time, encouraging the erection of new States, have appeared to us ample encouragement.

4thly. Our local situation is such that we not only apprehend we should be separated from North Carolina, but almost every sensible, disinterested traveler has declared it is incompatible with our interest to belong in union with the eastern part of the State; for we are not only far removed from the eastern parts of North Carolina, but separated from them by high and almost impassable mountains, which naturally divide us from them, which have proved to us that our interest is also in many respects distinct from the inhabitants on the other side, and much injured by union with them.

5th and lastly. We unanimously agree that our lives, liberties and property can be more secure and our happiness much better propagated by our separation; and consequently that it is our duty and inalienable right to form ourselves into a new independent State.

 p340  A Declaration of Rights
made by the Representatives of the Freemen
of the State of Franklin

Sec. 1. That all political power is vested in and derived from the people.

Sec. 2. That the people of this State ought to have the sole and exclusive right of regulating the internal government and police thereof.

Sec. 3. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services.

Sec. 4. That the legislative, executive and supreme judicial powers of government ought to be forever separate and distinct from each other.

Sec. 5. That all powers of suspending laws or the execution of laws, by any authority, without the consent of the representatives of the people is injurious to their rights, and ought not to be exercised.

Sec. 6. That elections of members to serve as representatives in General Assembly ought to be free.

Sec. 7. That in all criminal prosecutions every man has a right to be informed of the accusation against him, and to confront the accusers and witnesses with other testimony, and shall not be compelled to give evidence against himself.

Sec. 8. That no freeman shall be put to answer any criminal charge but by indictment, presentment or impeachment.

Sec. 9. That no freeman shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court, as heretofore used.

Sec. 10. That excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishments be inflicted.

Sec. 11. That the general warrants, whereby an officer or messenger may be commanded to search suspected places, without evidence of the fact committed, or to seize any person or persons not named whose offense is not particularly described and supported by the evidence, are dangerous to liberty and ought not to be granted.

Sec. 12. That no freeman ought to be taken, imprisoned or disseized of his freehold, liberties or privileges, or outlawed or exiled or in any manner destroyed or deprived of his life, liberty or property but by the laws of the land.

Sec. 13. That every freeman restrained of his liberty is entitled to a remedy to inquire into the lawfulness thereof and to remove it, if unlawful; and that such remedy ought not to be denied.

Sec. 14. That in all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.

 p341  Sec. 15. That the freedom of the press is one of the greatest bulwarks of liberty, and therefore ought never to be restrained.

Sec. 16. That the people of this State ought not to be taxed, or made subject to the payment of any impost or duty without the consent of themselves or their representatives in General Assembly freely given.

Sec. 17. That the people have a right to bear arms for the defense of the State; and as standing armies in times are dangerous to liberty, they ought not to be kept up, and that the military should be kept under strict subordination and be governed by civil power.

Sec. 18. That the people have a right to assemble together to consult for their common good to instruct their representatives, and to apply to the legislature for redress of grievances.

Sec. 19. That almost men have a natural and inalienable right to worship God Almighty according to the dictates of their own conscience.

Sec. 20. That for redress of grievances and for amending and strengthening the laws, elections ought to be often held.

Sec. 21. That a frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.

Sec. 22. That no hereditary emoluments, privileges, or honors ought to be granted or conferred in this State.

Sec. 24.a That retrospective laws, punishing acts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty; wherefore no ex post facto law ought to be made.

Sec. 25. That the people have a right by their representatives to enactment laws to encourage virtue and suppress vice and immorality.1

The Constitution and Form of Government

Agreed to and resolved upon by the representatives of the freemen of the State of Franklin, elected and chosen for that particular purpose, in convention assembled, at Jonesborough, the 17th December, anno. Dom. 1784.2

Sec. 1. That the legislative authority shall be vested in two distinct branches both dependent on the people, to wit, a Senate and House of Commons.

Sec. 2. That the Senate shall be composed of three representatives  p342 annually chosen by ballot from each County​3 until there be ten Counties in the State, after that period, one from each County.

Sec. 3. That the House of Commons shall be composed of representatives chosen by ballot, four​4 for each county, until there be ten Counties within the State, and after that period, two for each County.

Sec. 4. That the Senate and House of Commons assembled for the purpose of legislation shall be denominated the General Assembly.

Sec. 5. That each member of the Senate shall have usually resided in the county in which he is chosen for one year immediately preceding his election, and for the same time shall have possessed and continued to possess in the County which he represents not less than one hundred acres​5 of land in fee.

Sec. 6. That each member of the House of Commons shall have usually resided in the county in which he is chosen for one year immediately preceding his election.6

Sec. 7. That all freemen of the age of twenty‑one years who have been inhabitants of any one County within the State twelve months immediately preceding the day of any election, and possessed of a freehold within the same County of fifty acres of land for six months next before and at the day of election shall be entitled to vote for a member of the Senate.

Sec. 8. That all freemen of the age of twenty‑one years who have been inhabitants of any one county within this State twelve months immediately preceding the day of any election, and shall have paid public taxes, shall be entitled to vote for members of the House of Commons for the County in which he resides.

Sec. 9. That all persons possessed of a freehold in any town in this State having a right of representation, and also all freemen who have been inhabitants of any such town twelve mouths next before and at the day of election, and shall have paid public taxes, shall be entitled to vote for a member to represent such town in the House of Commons; provided always, that this section shall not entitle any inhabitant of such town to vote for members of the House of Commons for the County in which he may reside, nor any freeholder in such County who resided without or beyond the limits of such town to vote for a member for said town.

Sec. 10. That the Senate and House of Commons, when met,  p343 shall each have power to choose a speaker and other officers, and shall be judges of the qualifications and elections of their members, sit upon their own adjournment from day to day, and prepare bills to be passed into laws. The two houses shall direct writs of election for supplying intermediate vacancies and shall also jointly by ballot adjourn themselves to any future day.

Sec. 11. That all bills shall be read three times in each house before they pass into laws, and be signed by the speakers of both houses.​7 On motion and second, the yeas and nays shall be taken on the passing of any act, and printed with the same.

Sec. 12. That every person who shall be chosen a member of the Senate or House of Commons, or appointed to any office or place of trust, before taking his seat or entering upon the execution of his office, shall take an oath to the State, and all officers shall also take an oath of office.

Sec. 13. That the General Assembly by joint ballot of both houses shall appoint Judges of the Supreme Courts of Law and Equity and Attorney General, who shall be commissioned by the Governor and hold their offices during good behavior.8

Sec. 14. That the Senate and House of Commons shall have power to appoint the general​9 and field officers of the militia and all officers of the regular army of the State.

Sec. 15. That the Senate and House of Commons jointly at their first meeting after each annual election shall by ballot, elect a Governor for one year, who shall not be eligible to that office longer than three years in six successive years; that no person under thirty years of age and who has not been a resident in this State above one year and shall not have in the State a freehold in land and tenements above the value of two hundred and fifty pounds, shall be eligible as Governor.10

Sec. 16. That the Senate and House of Commons jointly at their first meeting after each annual election shall by ballot elect five persons to be a Council of State for one year, who shall advise the Governor in the execution of his office, and that three members shall be a quorum. Their advice and proceedings shall be entered in a journal to be kept for that purpose only, and signed by the members present, to any part of which any member present may enter his dissent; and such journals shall be laid before the General Assembly, when called for by them.11

 p344  Sec. 17. That there shall be a seal of this State, which shall be kept by the Governor and used by him as occasion may require, and shall be called the great seal of the State of Franklin, and be affixed to all grants and commissions.

Sec. 18. The Governor for the time being shall be Captain General and Commander in Chief of the Militia and in the recess of the General Assembly shall have power by and with the advice of the Council of State, to embody the Militia for public safety.

Sec. 19. That the Governor for the time being shall have power to draw for and apply such sums of money as shall be voted by the General Assembly for the contingencies of government, and be accountable to them for the same; and he also may, by and with the advice of the Council of State, lay embargoes or prohibit the exportation of any commodities for any term not exceeding thirty days at any one time in the recess of the General Assembly; and shall have the power of granting pardons and reprieves, except where the prosecution shall be carried on by the General Assembly or the law shall otherwise direct. In such case, he may in the recess grant a reprieve until the next sitting of the General Assembly; and may exercise all the other executive powers of government, limited and restrained as by this Constitution as mentioned, and according to the laws of the State.​b And on his death, inability, or absence from the State, the Speaker of the Senate, for the time being, and in case of his death, inability, or absence from the State, the Speaker of the House of Commons, shall exercise the powers of government, after such death or during such absence or inability of the Governor or Speaker of the Senate or until a new nomination is made by the General Assembly.

Sec. 20. That in every case where any officer, the right of whose appointment is made by this Constitution vested in the General Assembly, shall during their recess die, or his office by other means become vacant, the Governor shall have power, with the advice of the Council of State, to fill up such vacancy by granting a temporary commission, which shall expire at the end of the next session of the General Assembly.

Sec. 21. That the Governor, Judges of Supreme Courts of Law and Equity and Attorney General, shall have adequate salaries during their continuance in office.

Sec. 22. That the General Assembly shall by joint ballot of both houses annually appoint a Treasurer or Treasurers for this State.

Sec. 23. That the Governor or other officers offending against the State by violating any part of this Constitution, maladministration or corruption, may be prosecuted on the impeachment of the General Assembly, or presentment of the grand jury of any court of supreme jurisdiction of this State.

Sec. 24. That the General Assembly shall by joint ballot of both houses, triennially appoint a Secretary for this State.

Sec. 25. That no persons, who heretofore have been or hereafter may be receivers of public monies, shall have a seat in either house  p345 of General Assembly, or be eligible to any office in this State, until such persons shall have fully accounted for and paid into the treasury all sums for which they may be accountable and liable​12 if legally called upon.

Sec. 26. That no Treasurer shall have a seat in either Senate, House of Commons or Council of State during his continuance in that office, or before he shall have finally settled his accounts with the public, for all monies which may be in his hands at the expiration of his office belonging to the State and have paid the same into the hands of the succeeding Treasurer.

Sec. 27. That no officer in the regular army or navy in the service and pay of the United States, of this or any other State, nor any contractor or agent for supplying such army or navy with clothing or provisions, shall have a seat either in the Senate, the House of Commons, or the Council of State, or be eligible thereto; and any member of the Senate, House of Commons or Council of State, being appointed to and accepting of such office shall thereby vacate his seat.

Sec. 28. That no member of the Council of State shall have a seat either in the Senate or the House of Commons;​13 provided, nevertheless, that the Governor and Council shall attend the General Assembly during the sitting of the same, and that it shall be a part of their official duty to revise all bills before they can be passed and recommend such amendments as they may think proper.

Sec. 29. That no Judge of the Supreme Court of Law or Equity shall have a seat in the Senate, House of Commons or Council of State.

Sec. 30. That no Secretary of this State, Attorney General, or clerk of any court of record shall have a seat in the Senate, House of Commons or Council of State.

Sec. 31. That no clergyman or preacher of the gospel of any denomination shall be capable of being a member of either the Senate or House of Commons while he continues in the service of the pastoral function.

Sec. 32. That no person who shall deny the being of God or the truth of the Protestant religion or the divine authority either of the Old or New Testament, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil government within this State.

Sec. 33. That the Justices of the Peace within their respective Counties in this State shall in the future be recommended to the Governor for the time being by the representatives in General Assembly, and the Governor shall commission them accordingly, and the Justices commissioned shall hold their office during good behavior,  p346 and shall not be removed from office by the General Assembly unless for misbehaviour, absence or inability.

Sec. 34. That there shall be no establishment of any religious church or denomination in this State in preference to any other, neither shall any person on any pretense whatever be compelled to attend any place of worship contrary to his own faith or judgment nor be obliged to pay for the purchase of any glebe or the building of any house of worship or for the maintenance of any minister or ministry contrary to what he believes right, or has voluntarily and personally engaged to perform; but all persons shall be at liberty to exercise their own mode of worship; provided that nothing herein contained shall be construed to exempt preachers of treasonable or seditious doctrines from legal trial or punishment.

Sec. 35. That no person in the State shall hold more than one lucrative office at any one time; provided that no appointment in the militia or the office of a Justice of the Peace shall be considered as a lucrative office.

Sec. 36. That all commissions and grants shall run in the name of the State of Franklin and bear test and be signed by the Governor; all writs shall run in the same manner and bear test and be signed by the clerks of the respective courts. Indictments shall conclude against the peace and dignity of the State.

Sec. 37. That the delegate for this State to the Continental Congress, while necessary, shall be chosen annually by the General Assembly, by ballot, but may be superseded in the meantime in the same manner; and no person shall be elected to serve in that capacity for more than three years successively.

Sec. 38. That there shall be a sheriff, coroner or coroners and constables in each County within the State.

Sec. 39. That the person of a debtor, where there is not a strong presumption of fraud, shall not be continued in prison after delivering up bona fide all his estate, real and personal, for the use of his creditors in such manner as shall be hereafter regulated by law. All prisoners shall be bailable by sufficient sureties, unless for any capital offences, when the proof is evident or the presumption great.

Sec. 40. That any 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.

Sec. 41. That a school or schools shall be established by the legislature for the convenient instruction of youth, with such salaries to the masters, paid by the public, as may enable them to instruct at low prices; and all useful learning shall be duly encouraged and promoted in one or more universities.14

 p347  Sec. 42. That no purchase of lands shall be made of Indian natives, but on behalf of the public, by authority of the General Assembly.

Sec. 43. That the future Legislatures of this State shall regulate entails in such a manner as to prevent perpetuities.

Sec. 44. That the Declaration of Rights is hereby declared to be part of the Constitution of this State, and ought never to be violated on any pretense whatsoever.

Sec. 45. That any member of either house of the General Assembly shall have liberty to dissent from and protest against any act or resolves which he may think injurious to the public, or any individual, and have the reasons of his dissent entered on the journals.

Sec. 46. That neither house of the General Assembly shall proceed upon public business unless a majority of all the members of such house are actually present: and that upon motion made and seconded, the yeas and nays upon any question shall be taken and entered on the journals and that the journals of the proceedings of both houses of the General Assembly shall be printed and made public immediately after adjournment.

This Constitution is not intended to preclude the present Convention from making a temporary provision for the well ordering of this State until the General Assembly shall establish government agreeable to the mode herein described.

Resolved, That this Convention recommend this Constitution for the serious consideration of the people during six ensuing months, after which time and before the expiration of the year, they shall choose a Convention for the express purpose of adopting it in the name of the people, if agreed to by them, or altering it as instructed by them.15

A true Copy, test:

Thomas Talbot, Clk.

The Author's Notes:

1 Section 25 of the North Carolina Bill of Rights relates to the boundaries of the State. It was omitted and another inserted in its place.

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2 In the North Carolina Constitution of 1776, this caption is followed by a preamble which recited the change of allegiance due to the prosecution of a war against the people of the Colonies by King George the Third; and the necessity for the establishment of a government to prevent anarchy and confusion. The Declaration of Independence of the people of Franklin, serving much the same purpose, precedes the Bill of Rights.

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3 The words of this section that follow, added to section 2 of the North Carolina Constitution.

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4 North Carolina Constitution "two" and without the words beginning with "until."

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5 North Carolina Constitution stipulated five hundred acres.

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6 The property qualification of one hundred acres was not brought forward. The purpose was to make the lower house representative of all the people.

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7 The words that follow are not in the Carolina Constitution.

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8 Judges of admiralty courts were provided for in the North Carolina Constitution.

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9 Plural in the North Carolina Constitution.

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10 Five years residence and the owner­ship of one thousand pounds of real estate in the N. C. Constitution.

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11 The North Carolina Council of State composed of seven members, four to constitute a quorum.

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12 The clause that follows was an added condition.

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13 The following proviso inserted.

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14 Some writers express the opinion that the provision for a university was inserted at the instance of Samuel Doak, who was a member of the Convention and the head of the only classical school in Franklin; but the provision was borrowed from the North Carolina Constitution of 1776.

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15 This paragraph does not, of course, appear in the North Carolina instrument.

Thayer's Notes:

a The text of the Declaration of Rights as printed in Williams' book here transcribed passes directly from Sec. 22 to Sec. 24. The presumption is not misnumbering but the actual inadvertent omission, presumably on the part of Williams, of a Sec. 23.

As the author himself implies in his note 1, the Declaration is modeled after the North Carolina Declaration of Rights that serves as a preamble to its Constitution of December 18, 1776; and as can be seen from the text of that document at Yale Law School, the articles of both Declarations are almost identical, and identically numbered. It is almost certain therefore that Williams' text should have included the following, taken from the North Carolina Declaration:

Sec. 23. That perpetuities and monopolies are contrary to the genius of a free State and ought not to be allowed.

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b Here, as marked by that discreet dotted underscore in my transcription, Williams skips what must have been a line of print. The text I supplied is from the Constitution of North Carolina (as found at Yale Law School).

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Page updated: 5 Aug 13