The origins of law in Tennessee can be traced to a variety of sources, notably English common law and colonial North Carolina statutes. The 1796 constitution provided that all laws then in force should continue until replaced by the legislature. This, in effect, adopted the substantive law of North Carolina, which included common law so far as compatible with circumstances in colonial America, as the basis for Tennessee jurisprudence. The organization of Tennessee as a state, therefore, did not entail any sharp break with existing legal principles. Indeed, the Supreme Court of Tennessee eventually held that English common law as it stood in 1775 was part of the law of the state.
In contrast to certain other states, little evidence exists of hostility to English law in early Tennessee. Though Governor John Sevier, for instance, declared in 1803 that “the common law of England, or any other European nation, are not suitable for republican states to adopt,” and urged the legislature to supplant English laws, an unconvinced state Senate committee did not recommend any action in response. (1) Lawyers and judges regularly cited English authorities and employed English judicial procedures during the first decades of statehood.
The constitution of 1796 did not provide for a fully independent judicial branch of government. Rather, the Superior Court and lower courts were created by and subordinate to the legislature. Many observers decried the defective nature of the judicial system, and the legislature revamped the court structure several times in the early period of Tennessee history. Most of the cases heard by the courts involved private law disputes between individuals. All lawsuits were brought in the style of one of the common-law forms of action, such as trespass on the case, covenant, and ejectment. The bulk of the litigation concerned collection of debts, enforcement of contracts, conflicts over ownership or possession of land, and torts. The early judges clarified much of the land law and adjusted the laws inherited from North Carolina to new circumstances.
Although preoccupied with private law matters, the Tennessee judiciary did not neglect constitutional issues. The highest court moved gingerly to assert the right of judicial review over legislation. As early as 1818, the Supreme Court of Errors and Appeals declared that “the Constitution is the paramount law of the land; that it is not competent to the Legislature to act in derogation of this principle; and if they attempt it their acts are void.” (2) The court also insisted that the judiciary could determine whether legislative acts violated the constitution. Judges first wielded judicial review to protect the integrity of judicial procedures. In Bank of the State v. Cooper (1831), for instance, the court invalidated legislation creating a special tribunal to resolve suits against officers of the state bank on several grounds. Among other concerns was the right to a jury trial. Since the special tribunal would hear cases without a jury, the act unconstitutionally deprived the defendants of the right to a trial by jury. In Fisher's Negroes v. Dabbs (1834), the court struck down an act which directed that a proceeding to manumit certain slaves be stricken from the chancery court docket. The court reasoned that the legislature had no power to close the courts and thus, in effect, determine the outcome of cases pending judicial resolution.
In language derived from the Magna Carta, the Declaration of Rights of the 1796 constitution provided that no person shall be “in any manner destroyed or deprived of his life, liberty, or property, but by the judgment of his peers or the law of the land.” Tennessee judges early treated the law of the land clause as a vehicle to protect individual liberty from legislative infringement. In a separate opinion in Vanzant v. Waddel (1829), Judge John Catron commented: “The clause 'Law of the Land' means a general and public law, equally binding upon every member of the community.” (3) He maintained that the liberty and property of every individual must be governed by general laws binding on the whole community. In Catron's view, partial laws directed at individuals in violation of this principle of equal treatment were void. Judge Nathan Green amplified this theme in Bank of State, emphasizing that the law of the land clause was intended to prevent the legislature from affecting the rights of any citizen unless the rights of all others similarly situated were equally affected. Reflecting the tenets of Jacksonianism, this judicial approach sought to protect the rights of individuals by requiring that laws be generally applicable and not single out politically vulnerable groups. This stress on equality under the law helped to shape the doctrine of substantive due process and anticipated the aversion of state and federal courts to class legislation following the Civil War.
Criminal law received little attention in the decades immediately following statehood. Corporal punishments such as whipping and branding remained common. In 1829 the legislature enacted a measure to erect a penitentiary and reformed the penal code to substitute imprisonment for corporal punishment. In another development, the Supreme Court of Errors and Appeals in Grainger v. State (1830) adopted a generous understanding of self-defense as a justification for killing an assailant.
Tennessee judges repeatedly asserted that the judiciary was a separate and coordinate branch of government. The constitution of 1834, which expressly provided for a supreme court, firmly established this principle. The supreme court now had a constitutional foundation and could no longer be controlled by the legislature.
The 1834 constitutional convention also added a section urging the legislature to encourage internal improvements. Legislators and judges shared the widespread enthusiasm for improved transportation, and devoted particular attention to fledgling railroads. Starting in 1831 the legislature granted numerous charters with broad privileges to railroads. During the antebellum era, moreover, various acts provided for the state to purchase railroad stock or endorse bonds, and authorized counties to subscribe for railroad stock. The supreme court upheld this use of public funds in Louisville & Nashville Railroad Co. v. County Court of Davidson (1854) on grounds that better trade and commerce served a public purpose. Likewise, the court sustained the delegation of eminent domain to private railroad companies. But in Woodfolk v. Nashville & Chattanooga Railroad Co. (1852), the judges insisted that the owner must receive the fair value of the land taken by the railroad and could not be compensated by the incidental benefits of a project. The court supported rail construction, but it carefully safeguarded the rights of individual owners.
The antebellum era witnessed numerous moves to improve the state legal system. Edward Scott published a valuable compilation of statutes in 1821. Thereafter, the legislature directed several revisions of the state's statutes. Finally, the legislators enacted a code of public statutes in 1858, revising the law in many respects and streamlining civil procedure. The legal literature was also strengthened. In 1809 the legislature required that the judges of the supreme court submit written opinions, laying the basis for the publication of case reports. John Overton, a prominent jurist, collected and published the first volume of court decisions in 1813.
Tennessee's decision to secede from the Union in 1861 ushered in years of conflict which disrupted orderly legal process. In the face of Union military victories, the legislature adjourned in March 1862, and the court system ceased to operate. After a period of military rule, Governor William G. Brownlow organized a Reconstruction government in 1865 and appointed judges to the supreme court. Although long dismissed as a carpetbagger court of slight consequence, the Reconstruction court in actuality was composed of jurists who served ably during probably the most trying phase of Tennessee judicial history. The Reconstruction court confronted a huge backlog of cases and most of its decisions dealt with ordinary civil litigation. But its handling of matters arising from the Civil War and Reconstruction has fixed the court's image. As would be expected of Unionist judges, the supreme court in Smith v. Ishenhour (1866) upheld a measure invalidating the ordinance of secession. More controversial was the Reconstruction court's handling of laws designed to disfranchise ex-Confederates. In Ridley v. Sherbrook (1867) the judges sustained the franchise law of the Brownlow government. In part, they were motivated to avoid antagonizing the Radicals in Congress and thus spare Tennessee from military governance. In State v. Staten (1869) the court demonstrated its independence by striking down Brownlow's practice of disfranchising voters whom he thought had fraudulently registered.
Reconstruction came to an end with the constitution of 1870. This document, as amended, remains the basic framework for Tennessee law and government. Following the Civil War and Reconstruction, the Tennessee legal system addressed the new issues that emerged from the economic and social transformation of the state and union. Increased concern about personal violence, for instance, sparked legislative efforts to curb the practice of carrying concealed weapons in public. In Andrews v. State (1871) the supreme court affirmed the constitutional right to bear and use arms, but held that the legislature could regulate the time and manner of carrying arms to protect the community. The emancipation of slaves created new possibilities for interracial marriage. To forestall this result, the constitution of 1870 and implementing legislation prohibited interracial marriage. Stressing the state police power to regulate marriage, the court in Lonas v. State (1871) found the prohibition to be valid and not in violation of the Fourteenth Amendment. The constitutional barrier to interracial marriage was removed in 1977.
Cases involving corporate enterprise and private property rights occupied a place of importance on the supreme court's docket in the late nineteenth century. The Tennessee Constitution provides that monopolies shall not be allowed in the state. This declaration was first written in 1796, long before the growth of modern public utilities. The constitution does not define monopoly, and in City of Memphis v. Memphis Water Co. (1871) the court ruled that the prohibition is inapplicable when a particular trade or business is not of common right. The judges then upheld the exclusive privilege of the Memphis Water Company. Occasionally the supreme court has invalidated business arrangements as a monopoly. In Noe v. Mayor and Aldermen of Town of Morristown (1913), for instance, the court ruled an exclusive municipal franchise for slaughtering animals was an unconstitutional monopoly. But during the twentieth century the court has drained the monopoly provisions of much meaning by recognizing a broad legislative power to confer exclusive licenses under the police power to promote public safety and welfare.
When the state takes private property for public use, both the state and federal constitutions require that the owner be compensated. The supreme court adopted a broad definition of taking in Barron v. City of Memphis (1904), holding that a physical invasion which destroyed the usefulness of land constituted a compensable taking. The court ruled that there need not be an actual appropriation of the property to secure constitutional protection. Yet the abatement of a common law nuisance is not an unconstitutional taking of property. Thus, in Theilan v. Porter (1885) the judges pointed out that a city could destroy a house deemed a health hazard under the police power to guard the public.
During the twentieth century the states lost a good deal of their autonomy to fashion law. The Supreme Court of the United States gradually federalized many areas of law such as criminal procedure and race relations by applying constitutional norms under the Fourteenth Amendment to the states. Congress preempted many fields with extensive regulatory legislation, effectively displacing state authority. Business transactions increasingly involved persons in more than one state. Accordingly, there was a push for uniformity among the states in various areas of private law. To meet the demand, the Tennessee legislature enacted numerous modern codes, such as the Uniform Commercial Code and the Uniform Residential Landlord and Tenant Act.
Despite these developments, Tennessee legislators and judges retained considerable latitude in making laws to meet societal needs. Economic issues predominated in the early years of the twentieth century. Adjusting to the hazards of the industrial workplace, Tennessee abrogated common law rules limiting recovery by injured workers against employers and adopted worker's compensation in 1919. The supreme court initially looked with skepticism upon price-fixing schemes. In State v. Greeson (1939), for instance, the court determined that a statute setting the prices charged by barbers represented an unconstitutional deprivation of the freedom of contract. Subsequently, however, the judges sustained the Tennessee fair trade law, which permitted manufacturers to stipulate the retail price of their goods. Labor relations were largely governed by federal law after 1935, but the legislature passed a right-to-work act in 1947 outlawing contracts which restricted employment to union members. The Tennessee Supreme Court affirmed the validity of this measure in Miscari v. International Brotherhood of Teamsters (1948).
More important, in a series of decisions starting with Evans v. McCabe (1932), the supreme court ruled that the constitution of 1870 only authorized the legislature to tax income derived from stocks and bonds, and that other sources of income were not taxable. In recent years, the attorney general has taken the position that a general state income tax could be found constitutional. But the matter remains unresolved.
By the late twentieth century the Tennessee courts were demonstrating a degree of judicial activism in reshaping both private and public law. The supreme court changed tort law in McIntyre v. Balentine (1992) by adopting a scheme of comparative fault rather than contributory negligence in negligence actions.
Of greater potential significance, appellate judges in Tennessee have shown a new interest in state constitutional law. They have begun to invoke the Tennessee Constitution to expand personal rights beyond the federal minimum standard. In Tennessee Small School Systems v. McWherter (1995), for instance, the supreme court determined that the equal protection provisions of the Tennessee Constitution imposed on the legislature a duty to maintain a public education system that afforded substantially equal opportunities to all students. Instead of imposing a remedy, however, the court deferred to the legislature to fashion a plan to equalize funding available to school districts. Similarly, the Court of Appeals in Campbell v. Sundquist (1996) relied on a right of privacy implied from several provisions of the state constitution to invalidate statutes prohibiting sodomy. In these cases the Tennessee courts have exceeded federal constitutional requirements. The outcome represents a departure from the historic Tennessee practice of treating the state constitution as conferring essentially the same rights as the federal constitution.
Tennessee law is the product of evolution rather than upheaval. Innovation has usually been incremental, and the state has rarely been at the forefront of legal change. Yet since 1796 both legislators and judges have sought to adjust traditional legal principles to meet the challenge of economic growth and societal change.
Joshua W. Caldwell, Sketches of the Bench and Bar of Tennessee (1898) and Studies in the Constitutional History of Tennessee, 2nd ed. (1907); James W. Ely Jr. and Theodore Brown Jr., eds., Legal Papers of Andrew Jackson (1987); Lewis L. Laska, “A Legal and Constitutional History of Tennessee, 1772-1972,” Memphis State University Law Review 6 (1976): 563-672