CHAPTER III.
LEGISLATIVE ORGANISM.
THE Germania of Tacitus describes the ancient Teutonic assembly as twofold in operation, with a conservative element in the conference of chiefs and a popular element in the gathering of the armed host of freemen. "About minor matters," he tells us, "the chiefs deliberate; about the more important, the whole tribe. Yet even when the formal decision rests with the people, the affair is always thoroughly discussed by the chiefs. They assemble, except in the case of sudden emergency, on certain fixed days, either at new or at full moon, for this they consider the most auspicious season for the transaction of business.... Their freedom has this disadvantage, that they do not meet simultaneously, or as they are bidden, but two or three days are wasted in the delays of assembling. When the multitude think proper, they sit down armed. Silence is proclaimed by the priests, who have on these occasions the right of keeping order. Then the king or the chief, according to age, birth, distinction in war, or eloquence, is heard, more because he has influence to persuade, than because he has power to command. If his sentiments displease them, they reject them with murmurs; if they are satisfied, they brandish their spears. The most complimentary form of assent is to express approbation with their weapons."[1]
Such was the earliest form of our racial legislature of which there is record. And in it were the germs of all that came after it. The essential features of Saxon markmoot, shiremoot, folkmoot and Witenagemot, of Norman Great Council, of Parliament, of colonial and State legislature, and of the American Congress, were historically derived from this ancient and original Teutonic source.[2]
"This immortal constitution," observes Mr. Freeman, in commenting upon the passage, "was the constitution of our forefathers in their old land of northern Germany, before they made their way to the isle of Britain. And that constitution, in all the essential points, they brought with them into their new homes; and there transplanted to a new soil, it grew and flourished, and brought forth fruit rich and more lasting than it brought forth in the land of its earlier birth. On the Teutonic mainland the old Teutonic freedom, with its free assemblies, national and local, gradually died out before the encroachments of a brood of petty princes. In the Teutonic island it has changed its form from age to age, it has lived through many storms, and it has withstood the attacks of many enemies, but it has never utterly died out. The continued national life of the people, notwithstanding foreign conquests and national revolutions, has remained unbroken for fourteen hundred years. At no moment has the tie between the present and the past been wholly rent asunder; at no moment have Englishmen sat down to put together a wholly new constitution in obedience to some dazzling theory. Each step in the growth has been the natural consequence of some earlier step; each change in the law and constitution has been not the bringing in of anything wholly new, but the development and improvement of something that was already old. The progress has in some ages been faster, in others slower; at moments it has seemed to stand still, or even to go back; but the great march of political development has never wholly stopped: it has never been permanently checked, since the day when the coming of the Teutonic conquerors first began to change Britain into England."[3]
The earliest legislative institutions of England after the coming of the Saxons bear internal evidence of Teutonic origin. Every freeman had, as in the ancient clays of the race, a rightful place in the deliberative councils of his tribe or state. In the assemblies of the mark, the hundred, and the shire of the first kingdoms established there appears to have been no essential departure from ancient models. But as the petty kingdoms were slowly aggregated into the great heptarchic kingdoms, there grew up for each enlarged nationality a Witenagemot, or council of the chiefs — the witan or wise — and folkmoots or old assemblies of the freemen sank into shiremoots, of which the new kingdom might have many. Possibly the shire represented the earlier petty state, and came thus to retain the folkmoot.[4] As the newer kingdom covered enlarged territory, its gemot was held in central or shifting localities, necessarily remote from the homes of most of the people, and could not be attended by all, or indeed by any considerable number of the humbler freemen, and thus its active membership became practically limited to persons of rank and to the great officers of the royal court. The folkmoot was left to the shire, the Witenagemot was gathered round the king.[5]
Folkmoots in the shape of shiremoots lingered, with various changes, far down into the Middle Ages. And so late as the reign of Athelstan they took part in agreeing to legislation, though not in originating it. Yet even at sessions of the Witan, the freemen were not wholly without voice; for on the coming together of the military host, some bodies of them, armed as of old, probably took part in the making of laws. On other occasions, also, there is trace of a larger gathering than that of the magistrates and wisemen only; and it is not impossible that the right of all freemen to attend at the Witan, as at other councils, may have lingered in theory, even if fitfully and uncertainly put into practice.[6]
With the union of the heptarchy under the crown of Egbert, the heptarchic Witenagemots were merged in a single Witenagemot for united England. The earlier character of this council remained essentially unchanged, and its active membership consisted of the king, the earldormen, the king's thegns, the bishops and high ecclesiastics, and generally the wisemen, — with uncertain and occasional presence of lower elements. Though in reality an aristocratic gathering, it stood for the Teutonic assembly in substantially representing and acting for the nation in all matters of national concern; and it exercised powers derived from that ancient body.
This national Witenagemot was not destroyed by the Norman Conquest. Its continuity remained unbroken. The name of Witan went on in English as long as the Chronicle continued, and the new Latin name Magnum Concilium, which grew up by its side, was simply a translation of mycel gemot.[7] Under the feudal system of the Norman epoch, the Witan grew into the Curia Regis, the court of the king's vassals, a body which, owing to the then magnitude of the royal power, was scarcely more than a ceremonial coming together of courtiers. Its powers became nominal. Such as it was, however, this court of bishops, abbots, earls, barons, and knights was the council by whose advice and consent the kings condescended to act, or to declare that they acted.[8]
By the reign of Henry II. — perhaps earlier — all the king's tenants-in-chief had a right to be present in this great council when special taxation was needed, and possibly at other times. There came to be manifested a tendency also to admit the whole body of smaller landowners to similar rights, — a tendency which may be described as towards the concentration of the representation of the counties in the national Parliament; the combination of the shiremoots with the Witenagemot of the kingdom. But as, through sub-division of tenancies, the minor tenants-in-chief steadily grew in numbers, and as they were comparatively poor, it must have been difficult for them to put their rights into practice. However enlarged in theory, the national council remained, therefore, little more than a gathering of the great ecclesiastics and nobles; and it eventually developed into the House of Lords.
"Of one House of Parliament we may say," observes Mr. Freeman, "not that it grew out of the ancient assembly, but that it absolutely is the same by personal identity. The House of Lords not only springs out of, it actually is the ancient Witenagemot. I can see no break between the two.... In the constitution of the House of Lords I can see nothing mysterious or wonderful. Its hereditary character came in, like other things, step by step, by accident rather than by design. And it should not be forgotten that as long as the bishops keep their seats in the House the hereditary character of the House does not extend to all its members. To me it seems simply that two classes of men, the two highest classes, the earls and the bishops, never lost or disused that right of attending the national assembly which was at first common to them with all other freemen. Besides these two classes the king summoned other men to an early Parliament, pretty much, it would seem, at his own pleasure.... The House of Lords, then, I do not hesitate to say, represents, or rather is, the Witenagemot.... But the special function of the body into which the old national assembly has changed, the function of the 'other house,' the upper house, the House of Lords as opposed to the House of Commons, could not show itself till a second house of a more popular constitution had arisen by its side."[9]
The introduction of elected representatives into the national legislature gave rise to the modern Parliament, and created a new force that has changed the political course of the world. This system, unknown to ancient civilization, rested in reality upon the Teutonic principle of legislation by the entire body of freemen. The principle had always proved inapplicable, save within limited territory. All attempts made without representative machinery, in Saxon and early mediaeval times, to include in the active membership of the national council persons below the higher ranks, had failed of practical result. Yet the idea of election and representation in other than legislative forms, was anciently familiar to the English people. For the kingship itself was elective. Election was of immemorial usage in the Church. From very early Saxon days a reeve and four men attended in the court of the hundred, and in the shiremoot, as chosen representatives of the town. And in judicial matters the principle bore a leading part. Under the Plantagenets it came to be applied to almost every kind of business, judicial, fiscal, and administrative. Not, however, until the time of John and Henry III. was it extended to the national Parliament.[10] In 1213 King John held a council at St. Albans, which was attended, not only by the greater clergy and lords, but also by the representative reeve and four men from each town on the royal demesne, so long familiar to the folkmoot. And four instances of summoning representatives of the shires to Parliament occurred before De Montfort's famous Parliament of 1265, to which Hallam mistakenly refers as the "origin of popular representation."[11] Thus, in 1213, John summoned four knights out of each county to Oxford. In 1254, forty years later, during the absence of Henry III. in Gascony, Queen Eleanor and the Earl of Cornwall, acting as regents, directed the sheriffs to cause "to come before the king's council at Westminster, two lawful and discreet knights from each county, whom the men of the county shall have chosen for this purpose, in the place of all and each of them, to consider, together with the knights of other counties, what aid they will grant to the king."[12] The third instance was in 1261, during the Barons' War, when the confederate barons summoned to St. Albans three knights from each county, whom, however, Henry III. ordered to repair to himself at Windsor instead. And the fourth instance occurred after the overthrow of the king at the battle of Lewes, May 14, 1264, when De Montfort, in the king's name, called his first Parliament at London, and summoned to it four knights from each shire. The great Parliament which has justly given to Simon De Montfort the title of Founder of the House of Commons,[13] met in 1265, when, in the name of the imprisoned king, he directed the sheriffs to return not only two knights from each shire, but also two citizens from each city, and two burgesses from each borough. This practically completed the constitution of the English Parliament, though for some years longer the meetings of the Great Council of nobles continued frequent, and representative gatherings were held but occasionally. In the parlance of the Middle Ages, De Montfort admitted the Third Estate to power. It was a return, under the new representative method, of the popular element in legislative affairs which was characteristic of Teutonic institutions.
The final settlement of the Parliament into two separate houses was accomplished during the thirteenth and fourteenth centuries. To a Parliament held by Edward I.[14] in 1295 there were summoned, in addition to the lay and spiritual lords, two knights from each shire, two citizens from each city, and two burgesses from each borough, and together with these, the prior of each cathedral and the archdeacons of each diocese in person, and elected proctors for the cathedral and parochial clergy. This great Parliament sat in three separate houses, each granting a different proportional tax. It was a recognition of the maxim that a tax required the consent of those who were expected to pay it. But the clergy had always been represented by the bishops and other members of their order in the national councils — as they still are by their bishops. Moreover, they had long voted taxes in their own ecclesiastical assemblies, the provincial convocations of Canterbury and York, and were very generally loth to take part in legislative action beyond that relating to subsidies. It came about, therefore, that though summoned to each Parliament succeeding that of 1295, their attendance, reluctant and irregular, finally ceased altogether in the fourteenth century. Convocation remaining a separate "legislature in ecclesiastical matters,"[15] maintained its right to vote taxes until long after the Reformation.[16] In this way England came to have a legislature of two houses instead of three. And such was the historical origin of the "bicameral system," which in modern times has spread from England over the Christian world.[17]
The actual date of the separation of the Lords and Commons is somewhat uncertain. Knights of the shire continued for a time to vote with the barons after the introduction into Parliament of city and borough members. The latter probably formed from the first a distinct house, though the earliest mention in the rolls of Parliament of a separate session is in 1332.[18] Two houses may be regarded as established usage by the year 1339, and by 1347 the knights of the shire had become associated in the membership of the House of Commons.[19]
The development of the organism of Parliament need not be further followed. But before leaving the theme a word should be said regarding a nearly allied body, the Privy Council. From the period of the reign of Henry III. an inner or executive council — the Concilium Ordinarium — attained prominence in affairs of government. This consisted of the great court officers, the judges and a varying number of bishops, barons and prominent personages clerical and lay. It grew out of, and was at first a part of, the Witenagemot or Great Council; being in effect a permanent committee to look after state matters in the interval between sessions of the larger assembly. Whenever the Great Council met, this Ordinary Council was merged in that body for the time being. It bore a mixed relation to executive and judicial business; and for occasions of temporary or minor importance it issued ordinances having the force of statute law; thus taking to itself legislative powers. As the greater Council gradually changed by the development of the houses of Lords and Commons, the Ordinary Council became more and more an official body separate from either house, though composed, to considerable degree, of persons who were connected with Parliament also. Its membership, unlike that of the House of Lords, with which it remained most nearly associated, never partook of an hereditary character, but was constituted by appointment of the executive. It eventually grew into the Privy Council, the constitutional body of advisers of the king, whom he was bound by the laws and custom of the realm to consult.[20] And such it still remains, although the modern Cabinet has now largely absorbed its former functions.
The Senate of the United States is, in reality, a development from the House of Lords and the Privy Council, jointly; and as both these bodies came originally from the older legislative council of England, it is evolved, through them, from that ancient Great Council and the Witenagemot. In the British-American colonies, there could be, strictly speaking, no House of Lords, because there were no resident nobles. But the governor of each colony had a council of state, members of which were appointed by the executive or otherwise. While exercising varied powers, it bore to him essentially the same relation that the Privy Council bore to the king.[21] When the second or lower house of the colonial legislature appeared, this council took on the functions of an upper house, though retaining its separate position as an executive, advisory body; and it thus had a double character. An executive council, distinct from an upper parliamentary chamber, was established by all the first State Constitutions, except those of New York and New Jersey. Pennsylvania and Georgia, until after the Philadelphia Convention, continued provision for such a privy council, while having, for the time being, a legislature of one house only. The constitutions of all the other States of that period provided for the legislature of two houses which had gradually grown up under colonial experience; and the upper house of this legislature in Maryland, Massachusetts, New York, North Carolina, South Carolina, New Hampshire, and Virginia, was called a "Senate." At the Philadelphia Convention an attempt was made to engraft a privy council on the Constitution of the United States, in addition to a Congress of two chambers, but the attempt failed.[22] Instead of establishing a council, the Convention gave certain powers of such an executive body to the national Senate. Indeed, although the Senate was created as a branch of the legislature, the early senators seem to have thought of it as being, first and foremost, a body with executive functions. And this it was at the beginning. For the first five years of its existence its sessions were held with closed doors, and its principal transactions related to the confidential executive business of treaties and the confirming of appointments. Its present position as a legislative chamber as powerful and as active as the lower house of Congress, has resulted only from a long process of development. It has wielded, in fact, the three elements of authority, — executive, legislative, and judicial. And notwithstanding changes of form and detail, it has undoubtedly done so in essential succession to the old combined council and upper house of colonial days, and through that, to the English Privy Council and the upper house of Parliament, and thus to the Witenagemot.[23]
The House of Representatives is confessedly evolved from the House of Commons, through the lower colonial house, and the lower house of the State legislature. Its name was copied from the State constitutions of Massachusetts, New Hampshire, South Carolina, Pennsylvania, and Vermont. In working operation it has shown itself to be somewhat dissimilar to its English original; the difference largely arising from the circumscribed nature of its legislative functions as defined and limited by Article I. of the Constitution. The American Congress lacks, indeed, the supreme power of Parliament; which is unchecked either by the influence of the sovereign, or by the law of a written constitution. But, as a matter of fact, this differentiation is but added proof of the true process of development through colonial forms. For the colonial legislature was a strictly limited body; it possessed no control over the colonial executive, and its law-making powers were modified by the terms of a written charter, as also by the very existence of the supreme power of crown and Parliament.
Singular evidence of the persistence in America of even accidental elements in the political usage of the mother-country, is afforded by the provision in the Constitution for the presiding officers. The president of the upper house of Parliament is not necessarily a member at all, but a person holding an entirely outside office, in connection with which he bears relation to the house. He is not chosen by the body over which he presides. Thus, also, the chairman of the Senate is the Vice-President of the United States, an outside officer not chosen by the Senators. He derives his office from that of deputy or lieutenant governor, as found in the royal charters and in colonial practice. As a possible successor to the national presidency in case of the President's death or disability, he is a substitute for the heir apparent in hereditary monarchies. Many of the new State constitutions made provision for the deputy governor to preside in the upper house of the legislature, and also to succeed to the governorship in case of vacancy. In four of the States the title applied to this officer was "Vice-President." The lower house of Parliament and the lower house of Congress have each a "Speaker," elected by the chamber itself from among its own members, — an office the origin of which dates back to the time when the elect of the House of Commons, representing that body, communicated its proceedings to the king for the latter's promulgation as law; acting as speaker for the Commons to the king.[24]
"If we could conceive a political architect of the eighteenth century," observes Sir Henry Maine, "endeavouring to build a new constitution in ignorance of the existence of the British Parliament, or with the deliberate determination to neglect it, he might be supposed to construct his legislature with one chamber, or three, or four; he would have been in the highest degree unlikely to construct it with two. In the modern feudal world, the community naturally distributed itself into classes or Estates, and there are abundant traces of legislatures in which these classes were represented according to various principles. But the Estates of the realm were grouped in all sorts of ways. In France, the States General were composed of three orders, — the clergy, the nobility, and the rest of the nation as the Tiers État. There were three orders also in Spain. In Sweden, there were four, — the clergy, the nobility, the burghers, and the peasants. The exceptional two houses of the British Constitution arose from special causes."[25]
Mr. Freeman, touching the same subject, remarks: "The form of government which political writers call bicameral — that is to say, where the legislative assembly consists of two chambers or houses — arose out of one of the accidents of English history. The merits of that form of government have often been discussed in our own times, but it is assumed on both sides that the only choice lies between one chamber and two; no one proposes to have three or four. But most of the continental bodies of Estates consisted ... of three houses; in Sweden, where the peasants, the small freeholders, were important enough to be separately represented alongside of the nobles, clergy, and citizens, there were till lately four. The number two became the number of our houses of Parliament, not out of any conviction of the advantages of that number, but because it was found impossible to get the clergy of England habitually to act, | as they did elsewhere, as a regular member of the , parliamentary body. They shrank from the burthen, or they deemed secular legislation inconsistent with their profession. Thus instead of the clergy forming, as they did in France, a distinct Estate of the legislature, we got a Parliament of two houses, Lords and Commons."[26]
When the question of two houses of Congress was under consideration in the Philadelphia Convention, the principle of a single chamber was in disrepute by reason of the recent failure of the Congress of the Confederation. Almost every State represented in the Convention possessed a legislature of two houses; and the colonial tendency from the beginning of settlement on the Western Continent had been, as we have seen, to follow the usage of the historic two houses of the mother-land. The proposal that the new constitution should provide for a national legislature of two branches was adopted by an all but unanimous vote of the members of the Convention; and Bancroft pertinently notes: "The decision was in harmony with the undisputed and unchanging conviction of the whole people of the United States."[27]
[1] Agricola and Germania of Tacitus, translated by A. J. Church and William J. Brodribb, 95, 96.
[2] The purest Teutonic institutions are to be looked for in England, rather than on the continent of Europe. "While the Germans of Gaul, Italy, and Spain became Romans, the Saxons retained their language, their genius, and manners, and created in Britain a Germany outside of Germany." — Taine, History of English Literature, I. 50. Commenting upon this, Hannis Taylor remarks: "By this statement the difference between Teutonic conquest and settlement in Britain, and Teutonic conquest and settlement upon the Continent is clearly defined. In the one case the invaders were absorbed in the mass of the conquered; Teutonic life simply became an element in the older Roman society. In the other, the invaders absolutely annihilated, within the limits which they made their own while they were still heathens, every vestige of the existing civilization, and established in its stead their whole scheme of barbaric life. The Teutonic polity thus established in Britain in its purity has been able to survive and to preserve not only its identity, but its primitive instinct, in all the vicissitudes of change and of growth through which it has passed. The invaders who thus established a new nationality in Britain were of the purest Teutonic type, and all spoke dialects of the Low German. From the earliest period in their insular history, these settlers knew themselves as 'the English kin'; and out of their union has arisen the English nation, which, through all the vicissitudes of internal growth and external influence, has preserved both its national character and its identity. In the course of its history it has received many infusions, it is true, — for the most part, however, from other branches of the Teutonic stock. No nation can claim absolute purity of blood; foreign elements are present in the veins of every people. But the national character is never lost so long as the paternal element is strong enough to absorb all other elements, and to impress upon the nation, as a whole, its own image and instincts." — Origin and Growth of the English Constitution, 86.
[3] Growth of the English Constitution, 18-20.
[4] "If each shire represented a complete kingdom, the shiremoot would give a complete representative system existing in each kingdom. But as the small kingdoms coalesced or were united by conquest, it does not seem to have been thought necessary to extend the system; the council of the aggregated state is not a folkmoot, but a witenagemot. In those early kingdoms, which were identical with the later shires, Kent, for instance, it might be expected that we should find two central councils, the folkmoot or council of the people of Kent, and the witenagemot or council of the chiefs, answering to the greater and narrower assemblies of the plebs and the principes in the Germania. It is by no means improbable that such was the case; but as our knowledge on the subject is derived from the charters attested by these assemblies, or issued with their consent, and as the consent of the witan only was necessary for the transfers of land, we have not the documentary evidence that would suffice for proof. We have many charters issued in witenagemots under the kings of Kent; but the only document issued by a folkmoot of Kent belongs to a date when it had long been without a king. The customs, however, of the folkmoot are so common and so ancient, that they afford a strong presumption of their universality; so that Kent and Sussex, and perhaps Essex and East Anglia, may be fairly supposed to have had the two regular assemblies in primitive simplicity as long as they continued independent. With regard to Wessex and Mercia, which were aggregations of smaller states, no such hypothesis will hold good. There is no probability that a Mercian king would introduce a new constitution into the organization of his kingdom. It was enough that the Hwiccians, or Hccanians, or Magasætanians had their folkmoot, without the Mercians [the United Kingdom] having one too, and it was enough for the king, as ruler of Mercia, to have his witenagemot without continuing to hold similar gatherings as overlord of Hwiccia and the associated districts. The folk-moot was left to the shire, the witenagemot was gathered round the king." — Stubbs, Constitutional History of England, I. 140, 141. See Gneist, Verwaltungsrecht, I. 43, who seems to consider the folkmoot of the shire identical with the witenagemot.
[5] Stubbs, Constitutional History of England, I. 141. Kemble gives an admirable pointing to this subject: "In a country overrun with forests, intersected with deep streams or extensive marshes, and but ill provided with the means of internal communication, suit and service even at the county-court must have been a hardship to the cultivator; a duty performed not without danger, and often vexatiously interfering with agricultural processes on which the hopes of the year might depend. Much more keenly would this have been felt had every freeman been called upon to attend beyond the limits of his own shire, in places distant from, and totally unknown to him: how, for example, would a cultivator from Essex have been likely to look upon a journey into Gloucestershire at the severe season of Christmas, or the, to him, important farming period of Easter? [These were usual periods for holding the gemot.] What, moreover, could he care for general laws affecting many districts beside the one in which he lived, or for regulations applying to fractions of society in which he had no interest? For the Saxon cultivator was not then a politician; nor were general rules which embraced a whole kingdom of the same moment to him as those which might concern the little locality in which his alod lay. Or what benefit could be expected from his attendance at deliberations which concerned parts of the country with whose mode of life and necessities he was totally unacquainted? Lastly, what evil must have resulted to the republic by the withdrawal of whole populations from their usual places of employment, and the congregating in a distant and unknown locality? If we consider these facts, we shall find little difficulty in imagining that any scheme which relieved him from this burthen and threw it upon stronger shoulders, would be a welcome one, and the foundation of a representative system seems laid a priori, and in the nature of things itself. To the rich and powerful neighbour, whose absence from his farms was immaterial, while his bailiffs remained on the spot to superintend their cultivation; to the scírgeréfa, the earldorman, the royal reeve, or royal thane, familiar with the public business, and having influence and interest with the king; to the bishop or abbot distinguished for his wisdom as well as his station; to any or all of these he would be ready to commit the defence of his small, private interests, satisfied to be virtually represented, if he were not compelled to leave the business and the enjoyments of his daily life. On the other hand, to whom could the king look with greater security, than to the men whose sympathies were all those of the ruling caste; many of whom were his own kinsmen by blood or marriage, more of whom were his own officers; men, too, accustomed to business, and practically acquainted with the wants of the several localities? Or how, when the customs and conditions of widely different social aggregations were to be considered and reconciled, could he do better than advise with those who were most able to point out and meet the difficulties of the task? Thus it appears to me, by a natural process did the folkmoot, or meeting of the nation, become converted into a witenagemot, or meeting of councillors." — Saxons in England, II. 191-194.
[6] "The Witan gave their wed to observe, and cause to be observed, the laws they had enacted. Eádgár says, 'I command my geréfan, upon my friendship, and by all they possess, to punish every one that will not perform this, and who, by any neglect, shall break the wed of any Witan.' This seems to imply that the people were generally bound by the acts of the Witan and their pledge or wed; and if so, it would naturally involve the theory of representation. But this deduction will not stand. The whole principle of Teutonic legislation is, and always was, that the law is made by the constitution of the king and the consent of the people: and ... one way in which that consent was obtained was by sending the capitula down into the provinces or shires, and taking the wed in the shire-moot. The passage in the text seems to presuppose an interchange of oaths and pledges between the king and the witan themselves; and even those who had no standing of their own in the folcmót or scírgemót, were required to be bound by personal consent. The lord was just as much commanded to take oath and pledge of his several dependents (the hired men, familiares, or people of his household), as the sheriff was required to take them of the free shire-thanes. Of course this excludes all idea of representation in our modern sense of the word, because with us promulgation by the Parliament is sufficient, and the constituent is bound, without any further ceremony, by the act of him whom he has sent in his own place. But the Teutons certainly did not elect their representatives as we elect ours, with full power to judge, decide for, and bind us, and therefore it was right and necessary that the laws, when made, should be duly ratified and accepted by all the people." — Kemble, Saxons in England, II. 236, 237.
[7] Taylor, Origin and Growth of the English Constitution, 239.
[8] Stubbs, Constitutional History of England, I. 405.
[9] Growth of the English Constitution, 62-65.
[10] "The political systems of the Teutonic nations, as they appear to us when written history begins, contained the germs of the representative principle, and in every one of the modern European states that have arisen out of the settlements made by the Teutonic nations on Roman soil, a serious attempt has at some time been made in the direction of representative government. The remarkable fact is that in every continental state in which such an attempt was made, it ended at last in failure and disappointment. By the sixteenth century, nearly every effort in the direction of representative government upon the continent of Europe had come to an end. In England only, among the Teutonic nations, did the representative system survive; in England only has the representative principle — which has been called 'a Teutonic invention' — been able to maintain a continuous existence. In this way the English nation has been able to hand down the representative principle from the barbarian epoch to modern times. In this way England has become the 'mother of parliaments,' — the teacher of the science of representative government to all the world." — Origin and Growth of the English Constitution, 428, 429.
[11] "Almost all judicious inquirers seemed to have acquiesced in admitting this origin of popular representation." — Hallam, Middle Ages, III. 27.
[12] The original of the writ reads "quatuor legales et discretos milites de comitatibus praedictis [Bedeford et Bukingeham.] quos iidem comitatus ad hoc elegerint, vice omnium et singulorum eorundem comitatum, videlicet duos de uno comitatu et duos de alio." — Lords' Report on the Dignity of a Peer, I. 95, and App. I. 13; Select Charters, 367.
[13] "Der Schöpfer des Hauses der Gemeinen." — Pauli, Simon von Montfort.
[14] "The materials of a parliamentary constitution were ready to his (Edward's) hand, yet it cannot be claimed that it is to him we owe its regular and practical establishment without a single afterthought, or reservation of any kind, he at once accepted the limitation of his other powers. To the Parliament thus formed he submitted his legislative enactments. He requested their advice on the most important administrative measures, and even to them, though not without some reluctance, the last remnant of his powers of arbitrary taxation. He had his reward. Great as were his achievements in peace and war, the Parliament of England was the noblest monument ever reared by mortal man." — S. R.
Gardiner, History of England, I. 21. "It was by Edward I. that the bases were settled upon which the English Constitution rests.... There was work enough left for future generations to do, but their work would consist merely in filling in the details of the outline which had been drawn once for all by a steady hand." — Ibid. I. 16.
[15] Hallam, Middle Ages, III. 137.
[16] The taxation of the clergy out of convocation was arranged between Lord Chancellor Clarendon and Archbishop Sheldon. Bishop Gibson pronounced it "the greatest alteration of the Constitution ever made without an express law." — See Hallam, Constitutional History, III 240, 241.
[17] The philosophic advantages of a bicameral system have been ably discussed by Bentham and Bowyer in England, and by Kent, Story, and Lieber in America. See Creasy, English Constitution, 178; Sheldon Amos, Science of Politics, 236-246, Quarterly Review, No 316, October 1884, etc
[18] Rot. Parl., II. 66.
[19] "The knights, who represented the landed property of the country, gave the House of Commons, from the first, stability, weight and permanence, and obtained for it a respect which the citizens and burgesses alone could not have commanded.. The commingling of the knights and burgesses in a single House was rendered possible by the existence in the English Constitution of a peculiarity which most prominently and honourably distinguished it from nearly every kindred constitution in Europe, — the absence of an exclusive noble caste In most of the continental states the nobles formed a distinct class, distinguished, by the privileges inherent in their blood, from ordinary freemen, and transmitting their privileges, and in some countries their titles also, to all their descendants in perpetuity The words 'nobleman ' and 'gentleman' were strictly synonymous, the estate of the nobles — wherever the system of estates obtained — represented in the national assembly not only the high nobility, but the class who, in England, formed the 'landed gentry', and the Commons, the Tiers État, consisted almost exclusively of citizens and burgesses In England, on the contrary, the privileges of nobility have always, except, perhaps, in the days of the ancient Forlas, been confined to one only of the family at a time, — the actual possessor of the peerage. The sons of peers are commoners, and on a perfect equality, as regards legal and political privileges, with the humblest citizen ... Had it been otherwise, the House of Commons could scarcely have become what it is at the present day." — Taswell-Langmead, English Constitutional History, 264, 265, 266 "On the same benches on which sat the goldsmiths, drapers, and grocers, who had been returned to Parliament by the commercial towns, sat also members who, in any other country, would have been called noblemen, — hereditary lords of manors, entitled to hold courts and to bear coat armour, and able to trace back an honourable descent through many generations." — Macaulay, History of England, I 38. This fact has been often referred to as a proof of the essential democracy of English institutions But there is another side. Has not the success of the so-called democratic institutions of England been due in part to this blending of the highest elements of the nation with the common? It cannot be denied that the presence of the aristocratic element gave a force and stability in the early days of the House of Commons that would otherwise have been wanting. How far this force has continued to the present time would be a study full of suggestiveness. Certainly the House of Commons is the strongest legislative body in the world, and at the same time the most aristocratic democratic body known to history.
[20] Taswell-Langmead, English Constitutional History, 678.
[21]"The upper house usually consisted of from six to twenty men, summoned by the colonial governor, to serve for an indefinite time as advisers to the executive, just as many years ago was summoned the first body of nobles in England as advisers to the king." — Thorpe, Story of the Constitution, 16.
[22] Referring to the method of the election of senators in the Constitution, Campbell remarks: "For this novel feature in its organization, we have, so far as America is concerned, to look directly to Pennsylvania, in which colony it alone prevailed. When Penn prepared his 'Frame of Government,' he provided for a council or upper house of the legislature, one-third of whose members went out of office every year, and this system was continued in the first State constitutions of Pennsylvania and Delaware. But Penn merely borrowed this idea from the Netherland cities, where it was well known. The people there had early learned the advantages of combining experience with new blood, and so, in many of their important bodies, they changed only a fraction at a time." — Puritan in Holland, England, and America, II. 423. See Motley, Dutch Republic, I. 83, as to the senate of Antwerp; and Davies, Holland, I. 79, as to Dutch cities. Campbell's conclusion from this claim, and that of an age qualification, that "we find in the Senate of the United States a body which derives most of the peculiarities of its organization from the Netherland republic, and not from the House of Lords." (Ibid.), is so wide of truth as to need no comment here. "Franklin's plan of government provided that the members should go out in rotation. See Select Journal of Congress, I. 286. The members of the upper houses in New York, Virginia, and Delaware were elected on this plan." — J. H. Robinson, "Publications of the American Academy of Political and Social Science," No. 9, p. 217, n. 4.
[23] The question of the similarity of the Senate to the House of Lords is likely to be debated as long as minds differ. But the historical derivation of that body from the colonial senate or upper house, which in turn came from the commercial charter, and, by imitation and the continuity of many functions and relations, from the House of Lords, is simply an historical fact. The points of likeness are real. The points of difference are largely the result of the process of development, and are therefore historical. But an interesting light is thrown on the fact of conscious copying from the House of Lords, by the language used in the Constitutional Convention at Philadelphia by Dickinson, when the Senate was under discussion: "In the formation of the Senate," he said, "we ought to carry through such a refining process as will assimilate it, as nearly as may be, to the House of Lords of England." — Elliot's Debates, V. 163. Again, having moved, in committee of the whole, "that the members of the second branch [of Congress] ought to be chosen by the individual legislatures" — the principle which was incorporated in the Constitution — he said, that he introduced this motion, because, among other things, "he wished the Senate to consist of the most distinguished characters, bearing as strong a likeness to the British House of Lords as possible; and thought such characters more likely to be selected by the State legislatures than in any other mode." — Ibid. 166. See also Ibid. 178.
[24] "In the use of the word which designates the presiding officer of [the House of Representatives] the Convention which framed the Constitution adopted, as it had done in so many other instances, the language of the law of England in regard to the presiding officer of the House of Commons. While there is in the Constitution no very definite description of the powers which may be exercised by the Speaker of the House, that office has become, by the practice and the rules of the House, the repository of more unrestricted power than any other officer of the government of the United States possesses." — Mr. Justice Miller, Lectures on the Constitution of the United States, 198. The editor of this work, Mr. J. C. Bancroft Davis, in referring in a note to the expansion of the Speaker's powers since the adoption of the Constitution, says: "The enormous power which the Speaker of the House of Representative wields over the legislation of Congress ... is not enjoyed by the presiding officer of that great body in England from whence the office and its title are derived." — Ibid 219.
[25] Popular Government, 224, 225.
[26] Growtli of the English Constitution, 97.
[27] History of the Constitution. Speaking of the adoption, by the Convention, of the bicameral system, Dr. J. H. Robinson asks: "Was the choice of the Convention then attributable to their admiration of the English Parliament? Not solely, certainly. There were, in 1787, no less than eleven practically independent communities, within 500 miles of Philadelphia, which had accepted the bicameral system of legislating. It had been known on this side of the Atlantic for more than a century, and was a simple and natural development of the colonial governments." — Publications of the American Academy, No. 9, p. 212.
"Since the beginning of the French Revolution, nearly all of the states of continental Europe have organized national assemblies, after the model of the English Parliament, in a spirit of conscious imitation. But the typical English national assembly, embodying what is generally known as the bicameral system, was not copied into the continental European constitutions until it had first been reproduced in a modified form by the founders of the federal republic of the United States. In the several colonial commonwealths founded by English settlers upon American soil, the typical English national assembly reappeared in an embryonic form as the predestined product of a natural process of reproduction. These assemblies 'were not formally instituted, but grew up by themselves, because it was in the nature of Englishmen to assemble.'" — Taylor, Origin and Growth of the English Constitution, 429; Seeley, Expansion of England, 67.
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