trolled, he could issue writs summoning enough gentlemen to outvote the Burgesses in joint session. Under the brief Puritan régime, this was not feared, and by joint session the Burgesses could more easily have their way. Wherever the Charter prevented packing the upper House, the lower House was likely to prefer joint session. So it was in New Jersey. There the first Assembly, that of 1668, was bi-cameral. Friction followed. At last the Deputies sent a message to the Council: "We, finding so many and great Inconveniences by our not setting together, and your apprehensions so different to ours, and your Expectations that things must go according to your opinions, though we see no Reason for, much less Warrant from the Concessions, wherefore we think it vain to spend much Time of returning Answers by writings that are so exceeding dilatory, if not fruitless and endless, and therefore we think our way rather to break up our meeting, seeing the Order of the Concessions cannot be attended to." In other words, it was declared unconstitutional for the upper branch to thwart the lower branch, and so the lower branch went home. Seven years passed before there was another legal Assembly. Thereafter it was always bi-cameral.

In Virginia "before the year 1680," said Beverley, writing in 1705, "the Council sat in the same house with the Burgesses of Assembly, much resembling the model of the Scotch Parliament; and the Lord Colepepper, taking advantage of some disputes among them, procured the Council to sit apart from the Assembly; and so they became two distinct Houses, in imitation of the two Houses of Parliament in England, the Lords and Commons; and so is the constitution at this day." This is to be disputed in two particulars. First, there was no imitation of Parliament, for a colonial Council occupied a place altogether different from that of the House of Lords. Secondly, the Burgesses had sat by themselves before 1680, at any rate at times, if John Fiske drew the right conclusion from an episode of 1676, after Bacon's Rebellion. It was then moved by one of the Governor's partisans in the House of Burgesses "to entreat the Governor would please to assign two of his Council to sit with and assist us in our debates, as had been usual." At this the friends of Bacon scowled, and somebody suggested such aid might not be necessary, whereat there was an uproar. The Berkeleyans urged that "it had been customary and ought not to

be omitted," but a shrewd old Assemblyman named Presley replied, ""Tis true it has been customary, but if we have any bad customs amongst us, we are come here to mend 'em.” This happy retort was greeted with laughter, but the Cavalier feeling of loyalty to the King's representative was still strong, and Berkeley's friends had their way, apparently in a tumultuous fashion.1

Thomas Jefferson, writing his "Notes on Virginia" something more than a century later, complained bitterly of the division into two Houses. He quoted the essential rights secured by a solemn convention in 1651, when the colony, which still maintained its opposition to Cromwell and the Parliament, was induced to lay down arms- among them: "Secondly, that the Grand assembly as formerly shall convene and transact the affairs of Virginia." He went on to say: "Yet in every one of these points was this convention violated by subsequent Kings and Parliaments, and other infractions of their constitution, equally dangerous, committed. Their General Assembly, which was composed of the Council of State and Burgesses, sitting together and deciding by plurality of voices, was split into two Houses, by which the Council obtained a separate negative on their laws."2

The colonists in what is now New Hampshire were from 1641 to 1680 under the jurisdiction of Massachusetts. By a commission dated September 18, 1679, New Hampshire was set off, and from January 1, 1679/80, led an independent existence, with a separate President and Council. The members of the Council were not chosen by the people, as was the case in the neighboring colonies, but were appointed by the Crown, and could be dismissed by the President. Three years later the Council began sitting apart, as an upper House.

New York's first legislative assembly, convened by Governor Dongan in 1683, was bi-cameral, and the system was provided for in the "Charter of Libertys" sent by that body to the Duke of York, approved by him, and then vetoed. When Henry Slaughter was made Governor, in 1689, by his commission the representative assembly was revived, and from the first Legislature thereunder in 1691 the two Houses sat separately. Pennsylvania was the only colony that began with two

1 Old Virginia and Her Neighbours, 11, 61.

Writings of Thomas Jefferson (P. L. Ford ed.), ш, 216 et 8q9.

Houses and changed to one. From the time of Penn's first Frame of Government, 1682, until the revision made by the Charter of Privileges in 1701, save for the two years when control was in the Governor of New York, there were Council and Assembly. The new Charter made the Assembly the legislating body, and its only reference to a Council was incidental. When the Council was appointed, the commission of the members gave them only administrative powers. They were, however, to advise the Governor, and as he had a veto over the acts of the Assembly, the result was that the Councilors usurped indirectly a share in lawmaking. In time they arrived at proposing amendments, and instances are recorded of agreement by the Assembly when amendments had been so proposed. Yet it is also known that the Assembly at times held this interference by the Council a violation of rights. In fact the situation cannot be stretched to meet the theory that Pennsylvania as a province had any second chamber after the opening of the eighteenth century.

Delaware, an adjunct of Pennsylvania, followed her up to the Revolution in having only one legislative chamber.

The Declaration and Proposals of the Lord Proprietor of Carolina, in 1663, provided that the laws should be made by Deputies, "with the advise and consent of the Governor and Council." The Concessions of 1665, however, said that the Deputies were to join with the Governor and Council for the making of laws. The Fundamental Constitutions of 1669, fancifully framed by John Locke, had this article: "Seventyone. There shall be a parliament, consisting of the proprietors or their deputies, the landgraves, and caziques, and one freeholder out of every precinct, to be chosen by the freeholders of the said precinct, respectively. They shall sit all together in one room, and have every member one vote." Nothing was to be proposed in this Parliament until it had first passed the Grand Council, so that here was to be in reality a two-chambered legislature. Locke's complexities proving quite unworkable, simpler machinery was substituted in practice. The Council kept the right of proposing all measures until 1693, when it was given also to the Assembly. The terms "General Assembly" and "Commons House of Assembly" thereafter used show that the two-chamber form had won acceptance.

The Charter of Georgia, in 1732, was granted to a Board

of Trustees, fifteen of whom were to be the "Common Council" and conduct the affairs of the colony. This body, sitting in London, governed for a score of years. In 1750 they voted for an Assembly. As they could not give it lawmaking power, they directed it should propose, debate, and represent. Two years later the Charter was abandoned and Georgia became a royal province. The usual form of government was thereupon provided on advice of the Lords Commissioners for Trade and Plantations - a Council appointed by the Crown, and an elected Assembly. One was styled the "Upper House of Assembly" and the other the "Commons House of Assembly." They sat separately.

New Hampshire, the first State to frame a Constitution, provided in the brief draft of January, 1776, for a Council, "to be a distinct and separate branch of the Legislature." It was to consist of twelve members, allotted to the five counties, to be chosen out of their own number by the "House of Representatives or Assembly." South Carolina, acting next, created an upper branch to be known as the "Legislative Council," to consist of thirteen members chosen by the "General Assembly" out of their own number, with no restriction as to allotment.

Then came Virginia with the first Senate so named and chosen as such at the polls. Thomas Jefferson is supposed to have suggested the name. His labors in the Continental Congress did not preclude him from sending to President Pendleton of the Virginia Convention a draft of a form of government. It followed New Hampshire and South Carolina in proposing an upper branch to be elected by the lower. It reached the Convention when there had already been substantial agreement on a plan based upon a draft by George Mason, which used no more specific designation than "upper branch." Jefferson's preamble and some other things were engrafted on the Mason plan, and inasmuch as the document adopted used the name "Senate," which Jefferson had used, it is fair to presume that the credit is his. The method of selection, however, was not his, for it was provided that there should be twenty-four members, for whose election the counties should be divided into twenty-four districts.

New Jersey copied from South Carolina the name "Legislative Council" and clung to it until 1844. This was the first State

to apportion one member to each county. Delaware called its upper branch "the Council," substituting "Senate" in 1792. It followed New Jersey in apportionment by counties, with three to each. Maryland came along in November of 1776 with a brand-new way of choosing Senators. Two electors were to be chosen by each county, and one each by Annapolis and Baltimore, who were to assemble and proceed to elect at large fifteen Senators, nine of whom were to be residents on the western and six on the eastern shore. This unique system prevailed until 1837, when direct election was substituted, with one Senator for each county and one for Baltimore. North Carolina had a "Senate" from the start, and began with county apportionment. New York also adopted "Senate"; South Carolina changed to it in 1778; Massachusetts took it in 1780; New Hampshire came to it in 1784. Rhode Island in 1795 changed the name "Upper House" to "House of Magistrates,' but that never came into use; the term "Senator" supplanted the term "Assistant," in May, 1799. Now all our upper branches are Senates. "Legislative Council" is the almost universal name for the upper House of British colonial bodies.

Speaking of names, it may as well be set forth here as anywhere that the colonial "General Court" survives only in the Constitutions of Massachusetts and New Hampshire, and even in them "Legislature" is also used. For some uncertain reason the Connecticut Charter of 1662 and the Rhode Island Charter of 1663 spoke of the "general meeting, or Assembly," and "Assembly" proved more suited than "Court" to the colonial fancy. The Massachusetts Bay Charters of 1629 and 1691 both spoke of "Court or Assembly," with variations making it impossible to say just what designation was proper. Governor Hutchinson in his "History" generally uses "Assembly" to indicate the lower House, and "General Assembly" to designate the lawmaking body as a whole. In one place (II, 245) he speaks of "the three branches of the Legislature," which would indicate that he included the Governor. From his phraseology one would infer that "General Court" had gone out of use in the period just before the Revolution, though it may be that he had some prejudice against the name or thought it colloquial. Virginia had begun with a "House of Burgesses," the towns or "boroughs" predominating in that colony at the start, and it kept the name until the Constitution of 1776 changed it to