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into the subject at length; it may be enough to speak of the most remarkable case of closeness with which the daughter has, wherever it has been possible, reproduced the parent. This is the prevalence of legislative bodies composed of two Houses, a system which may be studied alike in the Union, in the States, and in many at least of the cities. We are so familiar with the system of two Houses, from its reproduction in countless later constitutions, that we are apt to forget that, when the Federal Constitution of the United States was drawn up, that system was by no means the rule, and that its adoption in the Constitution of the United States was a remarkable instance of cleaving to the institutions of the mother-country. Though the United States Senate, the representative of the separate being and political equality of the States, has some functions quite different from those of the House of Lords, yet it could have hardly come into the heads of constitution-makers who were not familiar with the House of Lords."
This was quite wrong. When our Federal Constitution was adopted, two-chamber legislation had been familiar here for a century and a half. There were no less than eleven almost independent States that had continued it when framing their Constitutions, and all the delegates in the Convention of 1787, except those from Pennsylvania and Delaware, were by personal experience familiar with its working. There is no indication even that the House of Lords was studied to see if its example might so much as modify the colonial institution. In the eighty-five numbers of “The Federalist" I note but three references to the House of Lords by name, and these are of a purely incidental and casual nature. Once it is referred to as the British Senate, and then by way of showing its contrast to what the authors of our Constitution had devised. “Unfortunately, however, for the anti-federal argument,” said Hamilton or Madison in No. 63, "the British history informs us that this hereditary assembly has not been able to defend itself against the continual encroachments of the House of Representatives and that it no sooner lost the support of the monarch, than it was actually crushed by the weight of the popular branch.”
In almost every essential detail the Senate of the United States differs from the House of Lords. The American Senate has no hereditary memberships. Its members serve for a fixed term of years instead of for life. They represent, not classes nor estates, but geographical divisions, and each Senator must live in the division he represents. The number of Senators cannot be increased save upon the admission of new States. Their presiding officer is elected, under a system that makes him virtually the choice of the people. They receive salaries. They have no titles. They are not aristocrats. They have no judicial duties save in the rare instances of impeachment. They share in the executive power to the extent of ratifying various appointments and they have a hand in the making of treaties. It is true that in the actual processes of lawmaking there are resemblances between Congress and Parliament, but these processes were familiar to lawmakers for generations before our Congress was formed.
1 Some Impressions of the United States (1883), 116.
To sum it up, we find the differences many and essential, the resemblances few and inevitable. Bishop Stubbs had it right when he observed : “A strong current of similar events will produce coincidences in the history of nations whose whole institutions are distinct; much more will like circumstances force similarly constituted nations into like expedients; nay, great legislators will think together even if the events that suggest the thought be of the most dissimilar character. No amount of analogy between two systems can by itself prove the actual derivation of the one from the other." 1
Our State Senates are not so sharply differentiated from the lower Houses as to call for much of separate attention. They do not get it from the people. Fault-finding is usually directed at "the Legislature," not at either branch. Nowadays the qualifications for electors and elected are much the same in respect to each. Some difference springs from the variance in the length of term. The only universal difference having important result is in the matter of size. As the larger branch averages to have about three times as many members as the smaller, it is argued that the vote of a Senator counts for three times as much as that of a Representative. This has combined with the effect of tradition to make service in the upper branch esteemed as somewhat more of an honor than service in the lower branch. The use of the words “upper” and “lower" has no doubt helped this notion. Custom nowadays calls for "Hon." to be prefixed to the name of a Senator, but not to that
Constitutional History of England, 1, 207.
of a Representative. In general the result has been election first to the lower branch and then promotion to the upper. Consequently the age of Senators averages to be somewhat greater than that of Representatives. This would tend to make a Senate somewhat more decorous and dignified in its proceedings, even if that were not assured by its smaller size.
Another characteristic of State Senates is their comparative freedom from attempts at oratory. Time was when half a hundred men were enough to invite the eloquence of a Webster or a Clay. To-day the same number within the walls of a State Senate chamber will listen with patience to nothing but the conversational style, and the less even of that, the better. Senators carry their points in the lobbies or the lounging rooms, by discussion in small groups. Most matters are decided before they are reached in the calendar. Argument on the floor rarely changes the result.
It is far from clear that this is fortunate. The benefits of publicity are lost. Minority criticism fails of its advantages. Secret influences are unchecked. As a result the work of Senates arouses suspicions too often well founded. That frequently leads Representatives who have legitimate ambition for political advancement and who are jealous of their reputations, to avoid election to the Senate. If gifted with powers of persuasion or born with a liking for parliamentary conflict, they find a congenial forum in the House, which they will not exchange for what they come to think the dull and dreary conditions of the Senate. This may account for the fact that Senates have comparatively few members of whom the newspapers ever speak as “brilliant.” It also explains why so few Congressmen have served in State Senates. Ordinarily a seat in the upper branch of a State Legislature is the honorable rounding out of a political career, beyond which ambition either does not go or is not likely to be gratified.
Recent activities in the search for improvement in governmental processes have not failed to overlook State Senates. Some think the best way to reform them is to abolish them. Others think the wise course would be to reshape their functions. It has been suggested that it might be well to return to the colonial idea of an upper branch combining executive with legislative duties, at the same time a Privy Council and a Senate. One proposal is to make it a small body, with long terms, sitting continuously, paid well enough to let the members give all their time to the service of the State and assured of pensions if not reëlected after two or three terms. This should secure a body of legislative and administrative experts. If the development of what is known as the commission form of government continues, something of this sort may presently be reached.
ARRANGEMENTS FOR CONTINUITY ONE way of discriminating the upper from the lower branch was found by our fathers in an arrangement securing continuity for the Senate.
By William Penn's Charter of Liberties to Pennsylvania in 1682, the members of the Provincial Council were to be replaced one third each year. The plan was incorporated in the Frame of Government promulgated in the following year, but does not appear in the Frame of Government of 1696. It was not forgotten. When Virginia came to the making of her first Constitution, she embodied the idea therein. One quarter of the Senators (who were elected for a four years' term) were to retire each year. With biennial elections in 1850 it was necessary to change this so that half the Senators retired each two years. The Constitution framed in 1864 by delegates from such parts of the State as were then within the Union lines omitted the alternating proviso, but it was renewed in 1870, to be again omitted in 1902.
Delaware followed Virginia, replacing one third of her Senators each year from 1776 to 1831.
The Constitution drafted for New York by John Jay in 1777 provided a four-year term for Senators, of whom one quarter should be replaced each year. When in 1846 a two-year term was substituted, alternation was dropped. The Constitutional Commission of 1872-73 recommended a return to the four-year term, with one Senator from each of eight districts going out each year, but the Legislature did not approve the proposal nor submit it to the people.
The examples of Virginia, Delaware, and New York led the Federal Convention of 1787 to adopt the idea for the Senate of the United States, the choice settling on alternation by thirds, with change every two years. That in turn made adoption of the system common, though not universal, in the
State Constitutions framed thereafter. When in 1790 Pennsylvania created a Senate, one quarter of its members were to be replaced each year. In 1838 this was changed to one third each year, a system lasting until 1874, when it was provided that one half should go out each two years. One quarter of Kentucky's Senators were replaced each year from the time of her second Constitution (1799) till that of 1850, when with biennials the change was made to replacing half each two years. Up to the time of the adoption of biennial elections by Ohio (1851), her Senators went out one half each year. Louisiana retired half her Senators every two years until 1879. Indiana replaced one third of her Senators each year until biennials came with the Constitution of 1851; then the Senate was divided into classes, one half going out each two years. Mississippi began (1817) with dividing her Senators into three classes ; made it two in 1868; and abandoned the system in 1890.
Illinois has always had half of her Senators go out every two years. From 1819 to 1846, when biennials were adopted, Alabama Senators went out one third each year. Then it was changed to one half every two years; and with quadrennial elections provided in 1901, alternation disappeared. Missouri has from the start (1820) replaced half her Senators each two years. So long as Michigan retained annual elections (1835 to 1850) Senators were chosen for two-year terms and one half went out each year. Arkansas has always had half her Senators go out each two years. In the Republic of Texas (1836) Senators had three-year terms and went out one third each year; in the State, at first (1845) with four-year terms, one half each two years; in 1868, with six-year terms, one third each two years; returning in 1876 to four-year terms, half out each two years.
Maryland, by amendment to her Constitution in 1837, adopted the alternating system for the Senators, one third to be chosen every two years. In 1851 this was changed so that half should be elected every two years. While annual elections prevailed in Florida (1838–47), half the Senators went out each year; since, half have retired each two years. New Jersey adopted the alternating system for Senators in 1844, one third being replaced each year. Half the Iowa Senate has always gone out each two years. While Wisconsin had annual election,