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46. Distribution of Powers.

47. The Legislature.

The distribution of powers amongst three separate divisions of government was recognized at the outset in the provision, unexpressed in the constitution of 1796, that “the powers of gov. ernment shall be divided into three distinct departments; the legislative, executive and judicial.”:6 When, in 1853, the election of the judges of the supreme court was assumed by the electorate, the separation of powers, each equally dependent on one sovereign, the people, reached its logical completion.

The apportionment of the general assembly by "taxable inhabitants” gave way to apportionment according to the qualified electors” and representatives' districts no longer had to be coëxtensive with counties; a provision was inserted, however, to the effect that any county having two-thirds the required population should be entitled to a member. It was specified that counties should not be divided in forming senatorial districts and that, when practicable, inequalities in apportioning the representatives should be atoned for in determining them."

The minimum age for a senator was raised to thirty years. Legislators were expressly disqualified from offices to be filled by the governor as well as by the general assembly, except the trusteeship of a literary institution.' In number the representatives were not to exceed seventy-five until the population of the state totaled a million and a half, and in no case to exceed ninety-nine.? Senators were not to exceed one-third the representatives. 3

Instead of vesting in the legislature the appointment of all officers whose appointment was not otherwise directed by the constitution the new instrument provided that such appointments should be made in such manner as the legislature should direct.* There were several minor additions to the provisions governing legislative procedure."

Little change was made in the executive department. The governor's age was increased to thirty years and his citizenship

48. The Governor.

II. 1.
II, 5, 6.
II, 10.
II, 10.
*This did not occur until after the convention of 1870.
PII, 5.
II, 6.

VII, 4. Elections were to begin and end the same day,–VII, 5.
$II, 12-22.

The

requirement to seven years, and he was given authority to determine the business which the legislature could consider in extraordinary session.” The speaker of the house, in addition to the speaker of the senate, was included in the gubernatorial succession.

Instead of leaving the establishment of the judiciary sys- 49. tem almost solely to the legislative discretion, the convention Judiciary. sought to remedy the evils of the old plan by vesting the judicial power of the state in “one supreme court” and in "such inferior courts" as the legislature should provide for.' The supreme court was to consist of three judges, one from each grand divi. sion of the state,' thirty-five years of age and appointed for twelve years by joint vote of both houses of the legislature.? The judges of such inferior courts as the legislature should establish were to be elected—to hold office for eight years instead of during good behavior. They were required to be thirty years of age. By an amendment adopted in 18535 the people assumed the responsibility of electing all judges and the term of supreme judges was reduced to eight years. The judges of inferior courts were required by the amendment to be chosen by the voters of their respetive districts.

Attorneys for the state were likewise to be appointed for six years, and both attorneys and judges were made removable by concurrent vote of two-thirds of each house of the legislature, each house voting separately. The amendment of 1853, however, provided that all public attorneys should be elected by the qualified voters.

Provision was made for civil districts, subdividing counties, . 50. to be laid off as directed by the legislature, superseding the cap- Officers. tain's company of pioneer origin. The qualified voters of each district instead of the county court were thereafter to elect the

Local

III, 3. III, 9. SIII, 12 "VI, 1.

IVI, 2. A frequent arrangement for both judicial and administrative officers.
Originally merely geographical, the grand divisions are now politically significant.

XVI, 3.
3VI, 4
"ib.
For text, see Appendix 1.
VI, 5.
"VI, 6.
XVI, 15.

51.

Miscellaneous
Provisions.

constable;' and the justices of the peace, in whom was expressly vested a portion of the judicial power of the state,' were likewise to be elected by the voters of the districts instead of by the legislature—though their jurisdiction was to be coëxtensive with the county. Their tenure was made six years, instead of during good behavior.

The election of the sheriff, trustee and register was taken from the county court and assumed by the people. The election of the coroner and ranger remained with the justices, who were accorded the power of filling vacancies in the other offices.

The long-complete cessation of Indian warfare and the consequently diminished importance of the militia resulted in a great simplification of the constitutional provisions concerning it.5

Religious disqualifications for office were continued, but the increasing civilization of the people was manifest in a section disqualifying duelists from office and making them punishable as the legislature might direct.?

A disposition to limit the activity of the legislature in various incidental ways was apparent—the fruit of unhappy experience. Divorces must henceforth be granted only by the courts. The authorization of lotteries was prohibited. The power of passing private legislation was restricted and there was added the provision that powers over local affairs might be vested in the courts.

Education was discussed in a declamatory section, which, however, sought to protect the school fund and made it the duty of the legislature to appoint a board to superintend it. All land or money from land granted to the state by the federal government was to be devoted to education or internal improvements.

'VI, 15. IVI. 1. ?VI. 15.

3VII, 1. Register to serve four years instead of during good behavior; the others as formerly for two years. Sheriff ineligible for more than three terms in eight years.

"Coroner, as before for two years ; ranger the same, though formerly to serve during good behavior.

SVIII.
GIX. 1. 2.
TIX, 3. Dueling was already a crime at common law.
SXI. 4.

XI, 5. 1XI. 8.

2X1, 10, 11. Concerning education in Tennessee before the civil war, see Whitaker, A. P., The Public School System of Tennessee, 1834-1860,--Tenn. Hist. Maga., II, p. 5 (March, 1916).

Estimate

Convention's

Finally, instead of the provision for calling a convention to change the constitution, there was devised a method of amend. ing it by vote of two successive legislatures and submission to the electorate.3

The convention of 1834 did its work well. It met because 52. the state wanted constitutional revision, not because the people of the simply wanted a constitution, as in 1796, nor yet, as was the work. case in 1870, because a political party wanted to regain for the majority of the white men of the state their anti-bellum control of its affairs. The time was one of prosperity and peace when men could look forward with unbounded hope and even Tennesseans could in some measure forget their conservatism and, in addition to meeting courageously the needs that time and the progress of the state had brought forward, could prepare an instrument that would stand the test of long future use. The changes that have been made in the constitution since 1834 have been sufficiently non-essential to warrant the statement that Tennesse today is living under the organic law framed in that year. Its faults are largely those that the succeeding years have brought. In its day, it worthily marked the accession of the people to power, the triumph of democracy, and the beginning of a new era of progress, of activity and of State leadership.*

CHAPTER IV.

The CONVENTION OF 1870.5

Progress of

The years following the adoption of the democratized con- 53. stitution, as framed in 1834, are usually thought of as Tennes the State.

1834-1870. see's golden age. Brought to the forefront of the nation's poli. tics by the leadership of Jackson and later by the presidency of

$X1. 3. Concerning this see, infra, ch. 22. 'Caldwell, op. cit. 192.

General References : Journal of the Convention, 1870; Caldwell, J. W., Constitutional History of Tennessee; Garrett and Goodpasture, History of Ten. nessee; Goodspeed Publishing Company's History of Tennessee. For text see Appendix 1, infra.

Antecedents

Polk, the state stood in the very midst of the new democracy of the time. In the production of its great staple of pioneer days and ever afterward the state took the lead and when the agricultural census was taken in 1840, Tennessee proved to be the greatest corn-producing state. In the same year and in 1850 it was the fifth state in population. Between 1830 and 1870 the state grew from 681,904 to 1,258,520, about eighty-five per cent.

Great schemes for internal improvements were undertaken. Early in the thirties railroad-building began to be agitated and, though little had been accomplished before 1850, the following decade witnessed the construction of upwards of 1,200 miles. Progress was by leaps and bounds and lacked in steadiness,which, doubtless, would gradually have been achieved had not one of the economic foundations of the state's agricultural prosperity—slavery—paved the way for secession and the débâcle of civil war.

The convention of 1870 met as a result of a successful polit54. bento ical coup, made possible by dissensions in the ranks of the Reof Convention publican Party. A split in its convention resulted in two can

didates for governor in 1869 and the disfranchised Southerners, uniting in the support of the more conservative candidate, succeeded, by irregular methods, in casting a large vote and in winning the election; they also elected a majority of both houses of the legislature, which submitted the question of calling a convention to an electorate composed of the adult male citizens of the state.

The constitution of 1834 contained no provision for calling a constitutional convention. This action was taken, therefore, under authority of the plenary power of the legislature and of the constitutionally declared right of the people to "alter, reform, or abolish their government." Ample precedent for such action existed, if any were needed, in the manner of the adoption, in 1865, of two amendments forever abolishing slavery. Governor Johnson, addressing a convention assembled apparently to discuss the calling of a constitutional convention, but which decided to submit amendments on its own account, is reported to have said,

Const. 1834, I, 1. See Preamble to Const. 1870

of 1870.

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