by A.V. Goodpasture, A.M., B.L.
[Transcriber’s note: Original punctuation has been retained.]
The first compilation of the laws of Tennessee was printed and published by George Roulstone, at Knoxville, in 1803.
Roulstone was a printer by trade. He came here from New England, and in 1791, began the publication, at Rogersville, of the Knoxville Gazette, the first and, for sometime, the only newspaper published in the Southwest Territory. He was a man of more than ordinary intelligence. As public printer, he had published the Session Acts, both of the Territory and State.
In his compilation, he did no more than to reprint the Session Acts, and bind them together in a single volume. The work is a literal reproduction, even to clerical errors, of the Acts and Ordinances of the Governor and Judges of the Territory of the United States of America, south of the River Ohio; of the Acts of the Territorial Assembly; and of the Acts of the First, Second, Third and Fourth General Assemblies of the State of Tennessee, thus bringing into one volume the statute laws from 1792 to 1801, without other editorial work than the arrangement of an index. It was, however, a manifestation of considerable enterprise, since the stock for carrying it on, had to be transported many hundreds of miles, at great expense. But complete sets of the Session Acts were, even then, so scarce as to invite the undertaking, and at this day, hardly a library in the country could supply itself with a complete set of the Session Acts of the State, without utilizing this Roulstone reprint.
“Possibly it is the first bound book printed in the state. The fact that it was issued bound (increasing the possibility of survival) and the knowledge that Roulstone printed the book as a personal venture should render this book somewhat more likely to be found. Nonetheless, it is virtually never offered for sale today” (Allen). [Quoted by Donald Heald, bookseller, who had a copy of the book listed for sale in early 2016 for $12,000.]
In 1803, the Legislature appointed Willie Blount (1769-1835) and Moses Fisk (1759-1843) commissioners to revise, select and compile the acts and ordinances of the Governor and Judges of the later Territorial Government; the acts of the late Territorial Assembly; and the acts of the General Assembly of this State, which were then in force and use; and also to make and add thereto a careful selection of the statute laws of North Carolina, passed previous to the passage and acceptance of the act of cession; and directing that they insert in said volume the charter from the Crown of Great Britain, the lords proprietors’ great grant, the ordinance of Congress for the government of the territory northwest of the river Ohio, the Constitution of this State, the Constitution of the United States as amended since ratification, the Act of Congress admitting this State into the Union, the Declaration of Independence, the Articles of Confederation of the United States, together with the treaty of peace between the United States of America and Great Britain.
Willie Blount was learned in the law, had already received and declined an appointment to the supreme bench of the State, and had written and published a “Catechetical Exposition of the Constitution of the State of Tennessee,” and his fitness for a place on the commission could not have been questioned, but for some reason he never acted under his appointment.
Moses Fisk was a native of New England. He was a graduate of Dartmouth College, and had been for seven years a tutor in that institution. He had declined the presidency of the University of North Carolina, tendered through Governor William Blount, and at his solicitation, took up the law, but never devoted himself to it.
He prepared his work alone, and submitted it to the Legislature in 1805, but it appearing that it was incomplete, he was paid a compensation of $300 for the services he had performed and expenses incurred, and was allowed to withdraw his compilation for the purpose of completing the same according to the act of 1803, and was directed to lay it before the next session of the General Assembly for their revision or any regulation they might make relating to it. He did not have it completed and ready to be submitted to the Legislature before its session of 1809, and Haywood’s Revisal appearing in the meantime it was never submitted to the Legislature nor published.
Haywood’s Revisal was published in 1809, and embraced the public acts of the General Assembly of North Carolina and Tennessee, enacted from 1715 to 1807, then in force in Tennessee.
John Haywood (1762-1826) came to Tennessee from North Carolina in 1807, and that his Revisal appeared in 1809, is sufficient evidence, both of his familiarity with his subject, and his immense capacity for work. It is peculiarly fortunate for the State that the work was taken up by Judge Haywood at that time. He was a native of North Carolina, whence we obtained the body of our laws. He had been Attorney General of the State from 1791 till 1794, when he was elected to the bench of the Superior Court of that State, which position he held until his resignation in 1800; and had published a “Manual of the Laws of North Carolina,” “Haywood’s Justice” and “Haywood’s Reports” of the opinions of the Superior Court of North Carolina, from 1789 to 1798. He was an untiring worker, and in the estimation of Chief Justice Henderson, of that State, an abler man never appeared at the bar or sat on the bench of North Carolina.
Haywood’s Revisal differs from Roulstone’s Laws, in that it embraces the Constitution of the State of Tennessee (1796), and the laws of North Carolina in force in this State, by sessions and chapters. It omits the acts and ordinances of the governor and judges, and brings the acts of the General Assembly down through the first session of the seventh General Assembly, in 1807, by sessions and chapters, but omits all reference to chapters containing laws of a private nature, and such as were not then in force.
Judge Haywood’s biographers seem to omit this Revisal from the list of his works, but it is not certain that, in its results, it is not his very greatest publication. Its chief value to the State consists in the accuracy and discrimination with which he culled the statute laws, of North Carolina, for a period of seventy-five years, from 1715 to 1789, and brought into his compilation only such as were in force in Tennessee. A less learned and accurate lawyer, or one not so thoroughly grounded in the laws of North Carolina, could hardly have succeeded so well. It was immensely popular at the time, going through three editions in six years. The third edition, published in 1815, brings the compilation down to 1813, adds the Constitution of the United States, gives numerous marginal notes, indicating the subjects of the sections, and carries the general subject matter treated, at the top of the page, through the book. It is rarely, if ever, referred to in our reports, for the reason that it is in no sense a digest, but sets out the acts chronologically, by sessions and chapters, making reference to the original acts easy and natural.
Haywood’s Revisal was followed and superseded in 1821, by the “Laws of the State of Tennessee, including those of North Carolina, now in force in this State, from the year 1715 to the year 1820, inclusive,” by Edward Scott, of Knoxville, who was for thirty years, one of the judges of the Circuit Court of Law and Equity, of this State. The work, which is very comprehensive, was published in two large volumes. It had the sanction of the Legislature, upon the approval of its plan and execution, by the judges of the Supreme Court, which it received, Judge Haywood then being upon the bench of that court. Indeed it was a valuable work. It contains more matter than Haywood’s Revisal, and is provided with marginal notes and references to subsequent alterations and amendments, the first effort in this direction that had yet been made.
In addition to the matter contained in the compilations of Roulstone and Haywood, Scott’s Revisal embraced the second charter granted by King Charles II, to the proprietors of Carolina; the great deed of grant; the act of Congress accepting cession of certain lands from North Carolina: an ordinance for the government of the territory of the United States, northwest of the river Ohio; the act of Congress providing for the government of the territory northwest of the river Ohio; the act of Congress receiving Tennessee into the Union; an appendix, containing the articles of Confederation; treaties made by the United States with France, England, Spain, and with the Indian tribes; the act of Congress respecting the authentication of records from other states, naturalization, and the removal of causes from State to Federal Courts; rules of practice in the Supreme Court, and the District Federal Courts; and precedents for Justices of the Peace. It differs also from Haywood’s Revisal, in giving the captions of such chapters, in the acts of Tennessee, as were not inserted, in their proper order.
All subsequent revisers have relied on this work almost exclusively for the statute laws of the State prior to 1821.
Haywood & Cobbs’ Revisal.
Valuable as Judge Scott’s compilation undoubtedly was, it failed to meet a demand which was being felt for a digest of the statute law of the State. To satisfy this growing want, the Legislature, in 1825, passed an act for the appointment of two persons, learned in the law, by joint ballot of the General Assembly, to digest and revise the statute laws of this State and of the State of North Carolina, then in force and of a public nature, in such a manner, that when there were several statutes on the same subject, the whole might be reduced into one, in which should be comprehended the provisions contained in each, with marginal notes, showing the date of the passage of the several acts, and stating the substance of each section.
In pursuance of this act, the General Assembly elected Judge Haywood who had now added to his six years on the Supreme bench of North Carolina nearly ten on that of Tennessee; to his two volumes of North Carolina Reports, three volumes of Tennessee Reports, and to his Manual of the Laws of North Carolina, three editions of his Revision of the Laws of Tennessee. They associated with him Robert L. Cobbs, a native of Virginia, who had commenced his career as a physician, and acted as a surgeon in Jackson’s army at New Orleans, but had afterwards studied law, and at this time, was esteemed the most eminent lawyer at the Columbia bar. He was elected Solicitor General of the ninth district, in 1819, but resigned the position to undertake this work, in 1825.
In 1826, the Legislature passed a resolution providing that where said persons in revising the laws, may ultimately not be able to agree as to what head any part of the law shall be placed under, or whether any law, or part of a law, be obsolete or suspended, expired or repealed, that such differences should be decided by Wm. L. Brown, who was required to act in such case or cases; and he did so act in at least one case. They disagreed as to the act of 1715, ch. 31, sec. 7, the point of disagreement being as to whether that part of the act of 21 James I, ch. 16, sec. 3, which provides that “all actions of debt grounded upon any lending or contract without specialty Shall be commenced and sued within Six years after the cause of such action and not after,” was in force by virtue of the act of 1715. Judge Haywood thought it was not. Gen. Cobbs was of the contrary opinion, and Judge Brown concurred with him, and it was so held by the Supreme Court, in Tisdale vs. Munroe, 3 Yer., 320, Ch. J. Catron delivering the opinion of the court.
Judge Haywood died December 22, 1826, before the work was finished, and it was completed by Gen. Cobbs, and submitted to the Legislature in 1827. He was directed to include the acts of 1827, and to avail himself of the assistance of Judge Brown. After an examination by a joint select committee, of which Judge Nathan Green (1792-1866) was chairman, the work was ordered printed. The publication was delayed, however, until the session of 1829, when it was again ordered to be printed, and to include the public acts of that session, which James A. Whiteside was directed to prepare. It was contemplated that this addition should be completed before the close of the session, but that being found impracticable, the whole matter of its publication was committed to Mr. Whiteside, who brought it out in 1831, in two volumes.
The first volume, including all the statutes of Tennessee and North Carolina passed from 1715 to 1729, inclusive, which were in force, except what was denominated the “Land Law,” was made on the plan prescribed by the Legislature, and had appended to it, the Articles of Confederation, Constitutions of the United States and of the State of Tennessee (1796), and precedents for Justices of the Peace.
The second volume was devoted entirely to the “Land Law,” which it treated under numerous divisions, indicating for the most part the district in which the land lay, the services for which it was granted, or the purpose to which the proceeds of its sale was devoted. The appendix to the second volume contained the treaties made by the United States with Indian tribes in relation to land in the State of Tennessee; acts of Congress relative to the authentication of records, the naturalization of foreigners, and the removal of suits from the State to the Federal Courts.
This publication marks two important departures in the compilations of the statutes – it was the first digest of the statute laws of the State, and was also the first compilation issued by the State itself.
Caruthers & Nicholson’s Statutes.
Although Haywood & Cobbs’ compilation was in the direction of a more perfect revision of the statute laws of the State, it did not give entire satisfaction to the profession. It was not intended wholly to supersede Scott’s Revisal, and on that account increased rather than diminished, the books of statute law necessary to the profession. Moreover, the State had adopted a new Constitution since its publication. It was not long, therefore, before a new compilation was undertaken by Robert L. Caruthers and A. O. P. Nicholson, two of the most illustrious names in the annals of Tennessee.
Robert L. Caruthers (1800-1882), the greatest advocate this State has ever produced, was also one of its soundest judges. He occupied a seat upon the Supreme bench from 1853 to 1861, and closed his long, upright, distinguished and useful career, at the head of the law department of Cumberland University, in the establishment and success of which institution, he was, more than any other man, instrumental.
His associate, Alfred O. P. Nicholson (1808-1876), then a young man, lived to achieve the highest distinction as an advocate, journalist, statesman and jurist. At the time of his death, he was Chief Justice of the Supreme Court of the State.
Their work, commonly known as Caruthers and Nicholson’s statutes, was issued in 1836, and was done ably and accurately. It was received with great favor by the profession, with whom it was the standard until the adoption of the Code in 1858. Taking the statutes brought into Scott’s Revisal, up to 1820, and the session acts subsequent to that date they undertook to arrange them under their title in alphabetical order, so dividing and subdividing them, that every distinct subject could be found under its appropriate title. And in arranging them under the several titles, they placed them in the order in which they were passed, in this way combining a chronological with an alphabetical order. A new feature of this compilation, is the notes, containing references to judicial decisions on constitutional questions, and on statutes, when deemed necessary for a correct understanding of them. It contains the Declaration of Independence; Constitutions of the United States and the State of Tennessee (1834); Acts of Congress on Naturalization, on the authentication of record, on the removal of causes from the State to the Federal Courts, accepting certain lands from the State of North Carolina, and receiving the State of Tennessee into the Union; and in the appendix, forms, notes of explanation and remarks, arranged under the different titles of the compilation, which is especially notable for their departure from the old system, in conveyancing and other forms, in the direction of brevity and perspicuity, which was afterwards followed in the code.
In 1846, Judge Nicholson published a volume of “Statute Laws of the State of Tennessee, of a general character; passed since the compilation of the statutes by Caruthers and Nicholson, in 1836, and being a supplement to that work.” The plan of the work is simple and inartificial. The several acts are published in full, under their respective titles, arranged in alphabetical order.
Code of Tennessee.
The State of Tennessee had a claim against Smith Criddle which was litigated in the Chancery Court at Franklin. The Legislature seems to have set apart the fund arising from that suit, to procure a new revision and digest of the laws of the State. In January, 1844, it passed a resolution providing that two persons of sufficient learning and ability be appointed by the judges of the Supreme Court, whose duty it should be to revise and digest the general statutes of the State, and the reports of the Supreme Court, with a proviso, that the person so appointed should receive in full compensation therefor, the balance due the State from Smith Criddle, then pending in a suit in the Chancery Court at Franklin, and no more and not otherwise. This proviso defeated the main object of the resolution, but there was another that bore rich fruit for the profession and the State. It provided “that the persons appointed to digest the decisions, shall be the owners of the book, and may proceed to publish the same as soon as it is prepared; but the same shall be done on their own responsibility.”
In pursuance of the resolution, the judges of the Supreme Court, on the 5th day of February, 1844, appointed Francis B. Fogg (1795-1880) and Return J. Meigs, who, the late W. B. Reese, says, was for fifty years Mr. Fogg’s only rival in knowledge and general scholarship. The inadequacy of the Smith Criddle fund prevented the revisers from undertaking a revision of the statute law, but under the second proviso, Mr. Meigs did undertake, and in 1848, published, a Digest of the Decisions of the Supreme Court, which has no superior in any State of the Union.
The matter rested here until 1852, when by resolution of the General Assembly, Return Meigs and Wm. F. Cooper were appointed to revise and digest the general statutes of the State, with power to suggest any amendments or alterations which they might deem advisable. The resolution also provided that they should receive as their compensation, the balance remaining unexpended of the amount recovered by the State against Smith Criddle. But remembering, doubtless, the fate of their former resolution, it was further resolved, “that if said gentlemen are not willing to undertake the revisal of the statutes upon the terms aforesaid, that the governor is hereby authorized to contract with them or others for the work, upon such terms as he may deem proper.”
Return J. Meigs (1801-1891) was a man of wide learning and ripe scholarship, as well as of high legal attainments. If he had needed any other recommendation, his admirable Digest of the Decisions of the Supreme Court, that had just lately appeared, demonstrated his fitness for this work.
William F. Cooper, who was born in 1820, still survives, “full of years and full of honors.” Like one of our former revisers, he was educated for the medical profession, but abandoned it for the law, in which he attained the very highest eminence, both as a jurist and a law writer. He was successively chancellor of Nashville division, and judge of the Supreme Court of the State.
Shortly after their appointment, the revisers met to consult upon a plan of work and a division of labor, with a view of completing the digest before the meeting of the next Legislature. Owing to Mr. Meigs’ professional labors and his duties as State librarian and in other public capacities, he was not able to spare the time Mr. Cooper was willing to devote to the work entrusted to them. It was first agreed between them, that Mr. Meigs should reduce into manuscript the laws of a general nature in Scott’s Revisal, and that Mr. Cooper should rewrite the laws from 1820 down, putting them in their own language and in alphabetical order, with a view of afterwards throwing the material thus prepared into some suitable order of arrangement. Mr. Meigs’ engagements being such as to prevent him from accomplishing his task in the time allowed, a session of the Legislature passed, without a report, and they then agreed to adopt a division of the laws into four parts, viz: Public Rights, Private Rights, Redress of Civil Injuries, and Crimes, the first two parts to be prepared by Mr. Meigs, and the last two by Mr. Cooper. Mr. Meigs was still not ready to report at the session of 1855-6, and informed Mr. Cooper that he felt it his duty to go over the whole of the statutes in the manner suggested in their first agreement, and that view the latter accepted as applicable to himself also, and the work proceeded on two independent lines, so that they were never able to submit to the General Assembly a digest produced by their joint labors.
Mr. Meigs reported that he had revised and digested, in conformity with his arrangement with Mr. Cooper, the laws falling under the general divisions of Public Rights and Private Rights; while Mr. Cooper submitted with his report a complete digest of the laws of the State, with such alterations as he deemed advisable, analytically and systematically arranged, which he stated to be the exclusive work of his own hands, unaided by the gentleman who was expected by the General Assembly to co-operate with him in the production of a joint digest.
Both reports were submitted to the General Assembly at its session of 1857-8, and were referred to a joint select committee of that body, composed of Senators Joseph B. Heiskell, W. P. Davis and W. C. Whitthorne, and Representatives W. C. Dunlap, C. W. Rowles, H. B. Bate, Michael Vaughn, S. T. Bicknell and M. Bullock, and by them referred to a sub-committee, composed of Joseph B. Heiskell, Chairman, and Micajah Bullock and Samuel T. Bicknell. This sub-committee, with the advice and assistance of Messrs. Meigs and Cooper, revised their work, reporting the code in sections from day to day to the General Assembly, where it passed three readings, and was thus enacted by the State, under the name of the “Code of Tennessee,” a work that has justly taken a place in the front rank of American codes.
It is due the State to add, that in addition to the $1,000 realized from the Smith Criddle claim, it paid each of the revisers the sum of $4,000 for his services.
The arrangement of the code, which is that of Judge Cooper, was made after a careful examination and comparison of the various State codes, as well as the Code Napoleon and Sergeant Stephens’ analysis of the laws of England. It is divided into four parts, and combines systematic grouping, under appropriate titles, of laws having a natural connection, with suitable sub-divisions into chapters and articles to ensure ease of reference. Each part is divided into several titles, in the most natural order; each title into Chapters arranged systematically; the chapters being again sub-divided, when necessary from the nature of the subject or extent of material, into articles methodically arranged. It also carries system into the sequence of sections, instead of throwing them together without method just as the law happened to be read, making each chapter read as nearly like a treatise on that branch of the law as the nature of a digest will permit. In like manner the arrangement of chapters under a given title, is such as to follow the natural order in every case where the subject would permit.
In 1871, James H. Shankland, of the Nashville bar, published the public statutes of the State, passed since 1858, as a supplement to the code. It was designed to exhibit in one view the public laws of the State, enacted since the code, and at a distance of thirteen years of such great changes as those from 1858 to 1871, was absolutely necessary to the profession, in the absence of a better work. It went through a second edition in 1872.
Thompson & Steger’s Code.
Shankland’s supplement was entirely superseded by the appearance, in 1873, of “A Compilation of the Statute Laws of the State of Tennessee, Including Acts of Session of 1870-1,” by Seymour D. Thompson, of Memphis, and Thomas M. Steger, of Nashville. This work is commonly known as Thompson & Steger’s Code. It gives the sections of the code, in force, in their proper order of sequence, prefixed by their proper sectional numbers, while the laws passed since the code, are inserted under the sections relating to the same subject, and are designated by the number of the preceding section, with a letter added. It also gives notes of the judicial decisions of this State and the United States, involving a construction or an important application of the statutes embraced in the compilation. The work had gone through two editions, when the General Assembly agreed to supply it to Justices of the Peace, provided, it should include all acts down to, and including the acts of 1873. Three sessions of the Legislature had been held since the appearance of the first edition, and the acts of these sessions were included in a supplement to the third edition, and was also bound separately to supply purchasers of the first and second editions. The first edition was published in three volumes, and the second and third in two.
Milliken & Vertrees’ Code.
By a resolution of the General Assembly, in 1883, Vertrees and W. A. Milliken were authorized, directed and empowered to revise, digest and codify all the general laws of the State, and to have the same published in one volume, if practicable, under the title of “Code of Tennessee.” They were directed to prepare and arrange it on the plan of the present code, with notes to each section, containing citations of statutes from which same were taken, and all decisions of the Supreme Court construing the same. In pursuance of this authority, they published in 1884, “The Code of Tennessee, being a compilation of the statute laws of the State of Tennessee, of a general nature, in force June 1, 1884,” in one volume. This compilation brought the acts down through the session of 1883, and the notes of decisions through 11th Lea, and a few cases that were to appear in 12th Lea. The sections of the code were renumbered, but the original numbers were retained, in brackets. in the margin. This compilation is usually designated as Milliken & Vertrees’ Code.
While the compilations of Thompson & Steger and that of Milliken & Vertrees are each commonly given the title of “Code,” and sometimes “Revised Code,” our Supreme Court has held, in the case of Burnett vs. Turner, 3 Pickle, 124, that there is no “Revised Code” of Tennessee, the Legislature not having adopted or enacted any compilation of our statutes as such, since the enactment of the code in 1858, which being the first code is not itself a revision, but is the original and only Code of Tennessee.
Shannon’s Code Supplement.
To bring Milliken & Vertrees’ Code up to date, R. T. Shannon, of the Nashville bar, published, in 1893, under the title of “Code Supplement” the public and permanent statutes, passed from 1885 to 1893, inclusive. The work is intended as a supplement to the Milliken & Vertrees’ Code, and is properly and consecutively arranged with reference to its sectional numbers. It brings the statute laws of the State down to this date, and is better arranged than the supplements to either the former compilations.
This ends the list of compilations of Tennessee statute laws. The formation of the system was complete with the enactment of the code of 1858. All subsequent compilations have looked only to the incorporation, under the same plan and arrangement, of the acts passed subsequent to its adoption. It is an admirable system, and peculiarly adapted to the wants of the people for whose government it was intended. The State owes much to the circumstance, that during the whole of its formative period, her ablest lawyers were induced to devote their great learning and ability to building and binding her statute laws into the splendid structure it has assumed. No list of the most eminent lawyers of the State would be complete, that did not contain the names of Haywood, Caruthers, Nicholson, Meigs and Cooper, and so long as our present system is maintained, it will be a monument to their just conception of the genius of our laws, and the intelligent labor with which they reduced them into a system, and in an especial manner, to the analytic and systematic mind and untiring labor of Judge Cooper.
NOTE. This article was prepared before the publication of Shannon’s Code, which is the one now in use.
Source: The American Historical Magazine and Tennessee Historical Quarterly, A. V. Goodpasture, Ed. Volume VII, 1902. Nashville. Pgs. 69-79. See Google Books for free download.