LEGISLATIVE ASSEMBLIES

CHAPTER I

THE FRAMEWORK

ACCIDENT made a legislative body of two Houses or Chambers hence known as bi-cameral - the prevailing type in the modern world. For what is held to have been the first real Parliament, that of 1295, King Edward summoned nobles and prelates; directed the prelates to bring with them certain of the lower clergy; and ordered the election of knights of the shire, citizens, and burgesses. Here were six groups that might have treated with the King quite independently, but there was no powerful reason for independent action, and motives of convenience made some degree of fusion desirable. So when at the opening of Parliament the King with his Council had personally or by his commissioner received all who came, and the various Estates withdrew for deliberation upon the requests of the Crown, it was natural that the nobles and prelates, accustomed to act together in the Great Council, should deliberate together; and after a time for the knights of the shire, the citizens, and the burgesses to coalesce. The clergy had long been wont to vote their money grants in their purely clerical assemblies, the Convocations of Canterbury and York; they were reluctant to abandon their independence, and refused to take part in secular legislation, either because they thought it inconsistent with their calling or because they shrank from the burden; their attendance, irregular from the outset, presently stopped altogether; and so they failed in England to become a political Estate. Thus the six groupings that might easily have developed were reduced to two.

In mediæval Spain and France there were three Estates in three Houses. Sweden did not abolish the representation of four Estates until 1866, when a legislature of two branches was

substituted. On the other hand, in Scotland there was no distinction between the Estates, nor any division into two Houses; the different Estates always sat and voted together. Everywhere development was at the start a matter of chance, not premeditation. The significant thing is that the twochamber idea was the one to survive. From this the fair conclusion is that it better met the need than any of the other combinations. It was the survival of the fittest. Nowadays, however, its merit is questioned. Proposals to substitute a single chamber are heard in many quarters. To weigh their merit calls for further help from history - the record of experience.

THE NEGATIVE VOICE

THE development of the two-chamber idea in America shows no trace of conscious imitation of the English system. It grew out of the conditions of the times. Let it be recalled that our colonies began as trading companies, with what we should now call stockholders and boards of directors. The story of what happened in Massachusetts is the most illuminating. Its Directors were called Assistants, sometimes Magistrates. The charter of 1629 directed that there should be eighteen of them chosen from the body of the freemen, but up to 1680 the largest number actually serving was twelve, and it was usual to choose eight or nine. At first they were the important part of the Government, much as the directors are the important factor in conducting the affairs of a modern corporation. They exercised the legislative, the executive, and the judicial functions. Yet they were not allowed to get beyond the control of the stockholders. For instance the General Court, May 14, 1634, agreed, "that there shalbe x £ [ten pounds?] ffine sett upon ye Court of Assistants, & Mr. Mayhewe, for breach of an order of Court against imployeing Indeans to shoote with peeces, the one halfe to be payde by Mr. Pinchon & Mr. Mayhewe, offending therein, the other halfe by the Court of Assistants then in being, whoe gave leave thereunto." (A marginal note says: "This ffyne of x £ was remitted by the Court.")

The Assistants met as frequently as there was need, but stockholders' meetings - General Courts were not held even the four times a year that the charter stipulated; in fact they came together but five times in the first five years. Fur

thermore, the power of the Assistants was enhanced through escaping the necessity of going out of office at stated times. By the order of October 18, 1630, the freemen were to choose Assistants "when there are to be chosen." The order of May 18, 1631, provided for Assistants "whom they shall desire to be chosen," and went on to say, "the like course to be holden when they, the said commons, shall see cause for any defect of misbehaviour to remove any one or more of the Assistants." This compelled judgment on men in office whose terms were not definitely ended, the inevitable result being that those once chosen were likely to keep their hold on the dignities, emoluments, and power of the position, thus becoming in effect an aristocracy with indefinite tenure.

The advantages thought to lie in this direction came near being perpetuated by precise recognition, for April 7, 1636, Winthrop's Journal tells us: "At a general court it was ordered, that a certain number of the magistrates should be chosen for life; (the reason was, for that it was showed from the word of God, etc., that the principal magistrates ought to be for life.) Accordingly, the 25th of the 3rd mo., John Winthrop, and Thomas Dudley were chosen to this place, and Henry Vane, by his place of governor, was president of this council for his year." This council for life lasted only three years, it being found to excite popular jealousy against the Magistrates. It seems to have been constituted in the hope of tempting over from England some of the peers, or gentry likely to become peers, since the members of such a council would be assured a place of dignity.

Winthrop evidently believed that the best interests of the colony called for control by the Magistrates. When in 1634 the principle of representation was applied, the freemen of the several settlements being empowered to choose two or three of their number to attend the General Court and "to have the full power and voices of all the said freemen derived to them for the making and establishing laws," he laid down the rule that they should not make any new laws, but prefer their grievances to the Court of Assistants; that is, the Magistrates. He thus reserved to the Magistrates the power to originate laws and to have the final word upon the proposals coming from the Deputies. Some years later, when the position of the Magistrates was under discussion, "one of the elders," Winthrop says,

"wrote a small treatise, wherein scholastically and religiously he handled the question." He made a strong argument for the advantages of a form of government "mixt of Aristocracy and Democracy." In his notion the Magistrates were the "Aristocraticall branch." It is interesting to observe how he met the contention that as the number of Deputies exceeded those of the Magistrates, there was no reason why the votes of unequal numbers should be equal. To this he gave five replies:

"1: Not the number but the reason of them which are numbred is to be weighed.

"2: Tis not an Arithmeticall equality but a Geometricall that is to be attended to; that is, not equality of number, but of vertue.

"3: There is more disproportion betweene the wisedome and number and object of Electors sc: the major part of the country that choose the magistrate and the major part of the towne that choose the Deputy, then there is betweene the number of the elected sc. Magistrates and Deputies.

"4: Though among the Deputies there may be found those which doe excell compared with some of the magistrates yet generally the one being experienced the other lesse experienced wee may judge accordingly.

"5: If yet there remaine ought herin to be satisfyd it may be tempered by increasing the number of the one or diminishing the numbers of the other, or by qualifying the major part of the magistracy according to the proportion or two-thirds as 6 the major part of 9, 7 or 8 of eleven and as in some weighty motions of the venetian state policy tempers one part to the other, but doth not causelessly destroy either."1

The publication of this treatise was an episode in a controversy that vexed the colony during many years, a famous controversy, and one destined to prove of great consequence, for out of it came the American type of legislature two elected bodies sitting in separate Houses, with agreement necessary for joint action.

The controversy began in 1634 when the inhabitants of Newtowne (now Cambridge), finding themselves crowded, asked of the General Court leave to remove to Connecticut. "This matter was debated divers days," says Winthrop in his Journal,

1 Mass. Hist. Soc. Proceedings, 46, 283.

"and many reasons alleged pro and con." When at last the question was put to vote, "of the deputies fifteen were for their departure, and ten against it. The governor and two assistants were for it, and the deputy and all the rest of the assistants were against it, (except the secretary, who gave no vote ;) whereupon no record was entered, because there were not six assistants in the vote, as the patent requires. Upon this grew a great difference between the governor and assistants, and the deputies. They would not yield the assistants a negative voice, and the others (considering how dangerous it might be to the commonwealth, if they should not keep that strength to balance the great number of the deputies) thought it safe to stand upon it. So, when they could proceed no farther, the whole court agreed to keep a day of humiliation to seek the Lord, which accordingly was done, in all the congregations, the 18th day of this month; and the 24th the court met again. Before they began, Mr. Cotton preached, (being desired by all the court, upon Mr. Hooker's instant excuse of his unfitness for that occasion). He took his text out of Hag. II, 4, etc., out of which he laid down the nature or strength (as he termed it) of the magistracy, ministry, and people, viz., the strength of the magistracy to be their authority; of the people, their liberty; and of the ministry, their purity; and showed how all of these had a negative voice, etc., and that yet the ultimate resolution, etc., ought to be in the whole body of the people, etc., with answer to all objections, and a declaration of the people's duty and right to maintain their true liberties against any unjust violence, etc., which gave great satisfaction to the company. And it pleased the Lord so to assist him, and to bless his own ordinance, that the affairs of the court went on cheerfully; and although all were not satisfied about the negative voice to be left to the magistrates, yet no man moved aught about it, and the congregation came and accepted of such enlargement as had formerly been offered them by Boston and Watertown; and so the fear of their removal to Connecticut was removed."

The issue was far from dead. At the General Court in March, 1635, "one of the deputies was questioned for denying the magistracy among us, affirming that the power of the government was but ministerial, etc. He had also much opposed the magistrates, and slighted them, and used many weak arguments