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of both houses of the legislature for terms of six years. The board appoints three commissioners of election in each of the ninety-six counties of the state, two from the majority and one from the minority party, who in turn appoint the election officers of each voting place. Registration is a prerequisite to voting in the larger counties and districts. Different requirements as to ballots obtain in the larger and smaller counties and districts. For the former a regulation Australian ballot, printed and distributed at public expense, is prescribed. For the latter the requirement is simply that the ballot voted must be of plain white paper, three by seven inches in size, that it shall have the names of the offices and candidates plainly written or printed and contain no insignia."

Primary elections, to be held at the option of political parties, are recognized and protected by law. An act making them compulsory for nominations to certain offices, passed in 1909, was, however, declared void by the supreme count.'

An interesting side-light is thrown upon the question of the need for some method of securing proportional representation in the legislature by the party vote in 1914. The Democratic candidate for governor received 137,656 votes, the Republican candidate 116,677.? Of the senators elected twenty-three were Democrats, seven were Republicans and three styled themselves Independents. Leaving the Independents out of the question, in order that the senate might represent proportionally the Democratic and Republican votes as numbered by the vote for governor, there should have been sixteen Democratic and fourteen Republican members.

10Shannon's Code, 1231, seq., 1259-60. In ('ook v. State, 90 Tenn., 407 (declaring valid the Dortch Law. Acts of 1890. 1st extra session, ch. 24) the court held that election restrictions may be made more stringent for larger places than for the rest of the state.

1 Acts of 1909, ch. 102. In Ledgerwood v. Pitts, 122 Tenn., 570, it was declared that the passage of such law was within the power of the legislature, but that the act in question was void because (1) its exclusion of all judicial officers except county judges was an arbitrary classification ; (2) the title of compulsory primary elections was not broad enough to include provisions for state conventions to select party presidential electors and delegates to national conventions, and (3) the act required the payment of fees as a condition of becoming a candidate.

"The socialist candidate, 1,671 votes. The Republican candidate had been endorsed by a convention of Independent Democrats.

3An interesting article on proportional representation, by Mr. Geo. N. Tillman, appeared in the Nashville Banner, January 13, 1916.



99. The First


The first thing that a people entering upon the duties of self-government usually determine is the organization of their governing agency. What manner of government will they set up, how will they divide and group its various functions, what officials will they employ; what powers will they confer, and State Conwhat restrictions will they place upon these officials? Such questions inevitably confronted the first constitution-makers of the newly-independent commonwealths of the American Union.

In answering them they did not attempt to formulate lasting principles upon which to fix a type of government, but simply sought to make “provisional arrangements to meet a casual emergency." The first state constitutions were, indeed,

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a sort of act of settlement to provide some basis for action with the expectation that political experience would eventually bring governmental institutions into accord with the needs of the people.

They were preëminently products of the thought and habits of the later eighteenth century and the particular organization of government which they provided may be considered in one sense an historical accident—though, like other accidents of history, not without its perfectly reasonable explanation.

Some account of the influences which controlled the making of the early constitutions and some mention of the subsequent development of state government, as well as of present-day thought concerning governmental organization, forms a very important part of the study of state fundamental law. Two years after the American states declared their inde

Turgot's pendence, the French economist and statesman Turgot, writ. Criticism.


"General References : Bondy, Wm., Separation of Governmental Powers; Ford, H. J., The Rise and Growth of American Politics, Goodnow. F. J.. Politics and Administration; Haines, C. G., The American Doctrine of Judicial Supremacy; Ostrogorski, M., Democracy and the Party System of the United States, Wilson, Woodrow, Congressional Government.

Ford, H. J., The Reorganization of State Government, Proceedings of Academy of Political Science, III, 2, pp. 30 seq.

ing to a friend in London, said concerning the state constitutions then being adopted,

I see in the greatest number an unreasonable imitation of the usages of England. ... A house of representatives, a council, a governor, because England has a House of Commons, Lords, and a King. They undertake to balance these different authorities as if the same equilibrium of power which has been thought necessary to balance the enormous preponderance of royalty could be of any use in republics, formed upon the equality of all citizens, and as if every article which constitutes different bodies was not a source of divisions. By striving to escape imaginary dangers they have created real ones."


101. The Doctrine of the Separation of Powers.

His ideal of government was a single assembly possessing all governmental powers.

It was not to Turgot, however, but to his less perspicuous contemporary and fellow-countryman, Montesquieu,” that Americans turned for their political philosophy. Founding his study upon an imperfect conception of the government of England, Montesquieu asserted, for the first time, that what is usually called the separation of governmental powers, that is to say, a fairly sharp constitutional distinction between the officials performing the legislative, the executive and the judicial functions of government, is indispensable to the maintenance of civil liberty, 10 When the legislative and executive powers are united in the same body, there can be no liberty, because apprehensions might arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Furthermore, there is no liberty, if the judicial power

be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were

"Quoted by H. L. Stimson, Proceedings of Academy of Political Science, V, 1, 23.

$Bondy, op. cit., 12. ('rities of the type of government being set up in America were not lacking on this side the Atlantic, For instance, Mercer of Maryland, in the convention of 1787 (Madison's Journal, Aug. 14), prophesied that American governments would become aristocracies unless connection should be established between the legislature and the executive. Otherwise the legislature would prey upon the people. He proposed that the executive should have a council of members of both houses : See Ford, H. J., in the Proceedings of the Academy of Political Science, III, 78 seq.

"Esprit des Lois, (1748).
10Bondy, op. cit. 13.

it joined to the executive power, the judge might behave with the violence of an oppressor. There would be an end of everything, were the same man or the same body, whether of nobles or of the people, to exercise these three powers, that of enacting laws, that of executing 'the public resolutions, and that of trying the causes of individuals.?


102. Political


Of considerable influence, also, must have been the Commentaries of Blackstone, which appeared at the time of the American Revolution, and contained conclusions similar to Montesquieu's.

The analysis of government into three primary divisions is at least as old as Aristotle's Politics, which said that in every state there is a "general assembly deliberating upon public affairs,” a “body of magistrates" and a “judiciary,” and various later political philosophers have written likewise, -notably John Locke, whose tripartite division was not, however, precisely the same.

The American statesmen were doubtless influenced more by habit and the English models to which they were accustomed Thought and than by theoretical discussions. They had seen how the power the Latter of the crown, theoretically the center and source of power, was Century. to some extent balanced over against the House of Lords; and how both were balanced against the Commons; more pertinently they had seen the power of their own British governors and their aristocratic councils checked by the ever-growing power of the popular assemblies—turbulent and often unreasoning, but resting upon the sound foundation of democracy.

It was a day when individualism pervaded the thought of the learned and unlearned, when the people demanded not governmental assistance to gain their ends but that the governmental restrictions, by which the mistaken statesmen of the seventeenth and early eighteenth centuries had sought to build national commonwealths, should be abolished. The great economic thinkers of the day were crying aloud for laisser faire —that the government should let the people alone and that in consequence the state would increase in prosperity.

? Montesquieu's meaning was not "that these departments ought to have no partial agency in, or no control over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustarted by the example in his eye, can amount to no more than this; that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free government are subverted,"--Bondy, op. cit. 35-36.

"Bondy, op. cit. 12.
The greatest, Adam Smith, published bis “Wealth of Nations” in 1776.

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As a result, when Americans came to form governments of 103. Governmental

their own they constructed frameworks not with the idea of Activity Not making a working executive organism or head of the body poli

tic designed to become an active agent for fulfilling the popular desires of a coöperative democratic society, but rather for the purpose of setting up rulers—a necessary evil—to protect them against foreign foes and domestic violence. These rulers might well be hedged about as much as possible lest, in doing anything else, they should develop into tyrants. The government seemed not a part of society but rather a rival against which the people must ever be on their guard. The habit of the time was to regard government as a thing distinct and apart from the people, so that popular liberty implied limitation of the sphere of government. It was only natural, therefore, that governments of diffused powers should be set up and that the "multiplicity of authorities," which Bagehot says would, save for American genius for politics and regard for law, have long ago brought our government to a bad end," should be looked upon as its chief excellency.

It must be noted, however, that the fundamental laws of

the early days by no means always expressly sought the comState Legislatures plete ideal of the separation of powers. The legislatures, which Entrusted with Most had popularly resisted the encroachments of foreign governors of Powers of Government. in colonial days were entrusted with most of the governmental

power granted, though the independence of the courts, as guardians of individual rights, was not neglected."

But as time went on and the branches of the government

developed their functions, the idea of the separation of powers Development

became more firmly established. The courts early declared that of Separation of Powers. they would, in making their decisions, ignore acts of the legis

lature which they deemed contrary to the constitution.8 Similarly the executive officers consistently with the idea of the separation of powers, might have declared that they would not



of Doctrine

*Ford, H. J., in Proceedings of Academy of Political Science, III, 2, p. 34. "Quoted by Wilson, op. cit., p. 310.

"Prior to 1787, of twelve commonwealth constitutions adopted, six-Ga., Md., Mass., N. H., N. C., Va.,-inserted a clause declaring the existence of the three separate powers.

There was no absence of rivalry between legislature and courts; see supra,

p. 49.

Concerning the doctrine of judicial review, see, supra, p. 35 and p. 48; infra, p. 233,

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