CHAPTER XII.

THE LEGISLATIVE BRANCH.

Bicameral.--The legislature of every state consists of two chambers or

houses. The _reason_ for this is that during colonial times most of the

legislatures consisted of two houses, the governor's council and the

representative assembly. Then on becoming states, each of the "old

thirteen," except Pennsylvania, organized bicameral legislatures. And the

new states, being largely settled by people from the older states,

naturally followed their example. The structure of congress has also had

much influence.

The _advantages_ to be derived from having two houses are numerous.

Perhaps the only one which it is necessary to mention here is that it

tends to prevent hasty legislation, because under this arrangement a bill

must be considered at least twice before passage.

Apportionment.--As the population of a state is changeful, the

constitution does not usually specify the number of members to compose

each house. This is determined, within certain limitations imposed in the

constitution, by the legislature itself. A re-apportionment is usually

made every five years, after a census by the state or general government.

The number of senators usually ranges between thirty and fifty; that of

representatives from seventy-five to one hundred and fifty.

Meeting.--The legislature meets biennially in most of the states. People

are beginning to understand that they may suffer from an excess of

legislation. Some of the English kings used to try to run the government

without parliament, and frequent sessions of parliament were then demanded

as a protection to popular rights. Hence our forefathers instinctively

favored frequent sessions of the legislature. But such necessity no longer

exists, and for many reasons the states have with a few exceptions changed

from annual to biennial sessions. [Footnote: Extra sessions may be called

by the governor. Mississippi has its regular sessions for general

legislation once in four years, and special sessions midway between.]

Election.--Senators and representatives are both elected by the people. In

some cases the states are divided into senatorial and representative

districts in such a way that each elects one senator and one

representative, the senate districts being of course the larger. In other

cases, the state is divided into senate districts only, and each senate

district chooses one senator and an assigned number of representatives.

The former plan prevails in Wisconsin, for instance, and the latter in

Minnesota. The number of representatives chosen in a senatorial district

varies from one to half a dozen, dependent upon population. Illinois has a

peculiar, and it would seem an excellent, plan. The state is divided on

the basis of population into fifty-one parts as nearly equal as possible.

Each of these districts elects one senator and three representatives. In

voting for representatives, a person may mass his three votes on one

candidate, or give them to two or three. The purpose is to enable a party

in the minority to secure some representation.

Term.--The length of term of legislators usually depends upon the

frequency of sessions. The general principle seems to be that

representatives shall serve through one session and senators through two.

How long, then, would you expect the respective terms to be in states

having annual sessions? In states having biennial sessions? By reference

to the comparative legislative table on page 293 confirm or reverse your

judgment.

Vacancy.--In case of a vacancy in either house the governor orders a new

election in the district affected by the vacancy.

Individual House Powers.--Each house has certain powers conferred by the

constitution having for their object the preservation of the purity and

independence of the legislature. Among these are the following:

1. _Each house is the judge of the election, returns, and qualification of

its own members._ Each person elected to either house receives from the

canvassing board of the district through its clerk a certificate of

election, which he presents when he goes to take his seat. Should two

persons claim the same seat, the house to which admission is claimed

determines between the contestants. The contest may be based, among other

things, upon fraud in the election, a mistake in the returns, or alleged

lack of legal qualification on the part of the person holding the

certificate. Into any or all of these matters the house interested, _and

it only_, may probe, and upon the question of admission it may pass final

judgment.

2. _Each house makes its own rules of procedure._ These, usually called

rules of parliamentary practice, you can find in the legislative manual.

Upon their importance as related to civil liberty, consult Lieber's Civil

Liberty and Self-Government.

The power to preserve order applies not only to members but to spectators

also. Disorderly spectators may be removed by the sergeant-at-arms. On the

order of the presiding officer such persons may be placed in confinement

during the remainder of the daily session.

Unruly members are as a general thing simply called to order. For

persistent disorder they may be reprimanded or fined. [Footnote: See Among

the Lawmakers, pp. 230-3.] But in extreme cases they may be expelled. To

prevent a partizan majority from trumping up charges and expelling members

of the opposite party, it is a common constitutional provision that the

concurrence of two-thirds of all the members elected shall be necessary

for expulsion.

3. _Each house chooses its own officers_. Each house has a presiding

officer, several secretaries or clerks, a sergeant-at-arms, a postmaster,

and a chaplain. The sergeant-at-arms usually has a number of assistants

appointed by himself, and there are a number of pages appointed by the

presiding officer. These, however, hardly count as officers. The only

exception to the rule enunciated is in those states having a lieutenant

governor, who is _ex officio_ president of the senate. Even in that case,

the senate elects in case of a vacancy, the person so elected being chosen

from among their own number and receiving usually the title of president

_pro tempore_.

Quorum.--It would hardly be possible for all members to be present every

day, therefore a number less than the whole should have authority to act.

But this number should not be very small. The several constitutions fix

the quorum for each house, usually at a majority of the members elected to

it. But a smaller number has power of adjournment from day to day, so that

the organization may not be lost; and it may compel the attendance of

absent members, by sending the sergeant-at-arms after them.

Publicity.--On the theory that legislators are servants of the people, we

would naturally expect the proceedings to be made public. And so they are.

Publicity is secured in the following ways:

1. In accordance with the constitutional provision, each house keeps a

journal of its proceedings which it publishes from time to time, usually

every day.

2. Spectators are admitted to witness the daily sessions.

3. Newspaper reporters are admitted, and are furnished facilities for

making full and accurate reports.

Privileges of Members.--In order that their constituents may not, for

frivolous or sinister reasons, be deprived of their services in the

legislature, the members of each house are _privileged from arrest_

"during the session of their respective houses, and in going to and

returning from the same." Nor can civil suit be brought against them

during that time. But they may be arrested for treason, (defined in the

constitution), felony, or breach of the peace, because if guilty they are

unworthy of a seat in the legislature.

And in order that there may be the utmost _freedom of speech_ in the

legislature, that any member who knows of wrong being done may feel

perfectly free to say so, the constitution of each state provides that

"for any speech or debate in either house, they shall not be questioned in

any other place."

Compensation.--Members of the legislature receive for their services a

salary, which is sometimes specified in the constitution, but which is

usually fixed by law. In the latter case no increase voted can be in

effect until a new legislative term begins. This proviso is, of course,

designed to remove the temptation to increase the salary for selfish ends.

In some countries no salary is paid to legislators, the theory being that

with the temptation of salary removed only persons of public spirit will

accept election. Our argument is that unless some remuneration be given,

many persons of public spirit and possessed of capacity for public service

would be barred from accepting seats in the legislature. In other words,

the state wants the services of her best citizens, and does not wish lack

of wealth on the part of any competent person to stand in the way. On the

other hand, that there may be no temptation to continue the sessions for

the purpose of drawing the pay, the constitution provides, where a _per

diem_ salary is paid, that members shall not receive more than a certain

sum for any regular session, or a certain other sum for any extra session.

Prohibitions on Members.--To secure for his legislative duties the

undivided attention of each member, the constitution provides that "no

senator or representative shall, during the time for which he is elected,

hold any office under the United States or the State." In some states, as

in Minnesota, the office of postmaster is excepted. And in order that

legislators may be freed from the temptation to create offices for

themselves or to increase the emoluments of any office for their own

benefit, it provides that "no senator or representative shall hold any

office under the state which has been created or the emoluments of which

have been increased during the session of the legislature of which he was

a member, until one year after the expiration of his term of office in the

legislature."

Eligibility.--To be eligible to the legislature a person must be a

qualified voter of the state, and a resident thereof for, usually, one or

two years; and shall have resided for some time, usually six months or a

year, immediately preceding election, in the district from which he is

chosen. This last provision is made to preclude people who have not been

living in the district, and who therefore cannot know it or be interested

particularly in its welfare, from representing it in the legislature.

Sole Powers.--The mode of making laws is discussed in another place.

[Footnote: See "How Laws Are Made," page 344.] In making laws the houses

have concurrent jurisdiction--they both take part. But there are some

parts which belong to each house separately, besides the election of

officers before mentioned. The house of representatives has in all states

the sole power of impeachment, [Footnote: For mode of proceeding see page

331.] and in some states of originating bills for raising revenue. This

latter power is given to it because being elected for a short term it is

more directly under the control of the people than is the senate.

The power to impeach is vested in the representatives because for the

reason stated, they seem more immediately in fact as well as in name to

represent the people, who it will be remembered are always the complainant

in criminal cases. And the senate has the sole power of trying

impeachments. [Footnote: When the governor is being tried, the lieutenant

governor cannot act as a member of the court.] The length of term frees

the members from the fear of immediate punishment in case of an unpopular

verdict. And if they are right time will show it. Historically, this

division of power in cases of impeachment is derived from colonial

practice and from the constitution of the United States.

The senate has also the sole power of confirming or rejecting the

appointments of the governor.

Forbidden Laws.--In addition to the laws forbidden in that part of the

constitution called the bill of rights, the legislature is usually

forbidden to pass laws authorizing any lottery; or granting divorces; or

giving state aid to private corporations; or involving the state in debt,

except in case of war or other emergency.

_Pertinent Questions._

Define constitution. What is a law? What is meant by common law? Statute

law? Equity?

By reference to the comparative legislative table in the appendix, tell

the most common name applied to the legislative body; any peculiar names;

the names most commonly applied to the respective houses; the usual

qualifications of members; the frequency of regular sessions, and the

month of meeting most usual. Why is this time of year so uniformly chosen?

What relation do you see between the frequency of sessions and the term of

members? What is the relation between the terms of the respective houses?

How does the number of senators compare with the number in the lower

house? What state has the largest house? The smallest? Why is the term

_senate_ so common? Look up the derivation of the word. In what section of

the country are the terms the shortest? Can you account for this? Which

states require the highest qualifications in members?

Find out whether in your state there are any requirements not given in the

tabulation. By reference to the legislative manual or other source of

information find out any other facts of interest, such as the names of the

speaker and other legislative officers; the number of your senatorial

district, and the name of your senator; of your representative district,

and the name of your representative; what committees are appointed in each

house, and on which your local representatives are, and how they came to

be selected for these particular committees; how vacancies are filled in

the legislature; any contested elections that have occurred in your state

and the basis of the contest; some of the important rules of parliamentary

practice; the salary paid members in your state; any cases of impeachment,

the charge, and the outcome; other forbidden laws.

If two persons claim the same seat in the senate, who will decide between

them? In the lower house? What are the returns, and where are they kept?

What appeal from decision is there? If your legislature is now in session,

write to your representatives asking them to send you regular reports of

the proceedings. Don't expect to get such reports for the whole session,

however; that would be asking too much. From the newspapers, report on

Monday the principal proceedings of the previous week. Have you ever seen

a legislature in session? What is to keep a member of the legislature from

slandering people?

State five powers which can be exercised only by the senate. Five, in some

states four, which can be exercised only by the lower house.

Are you eligible to the legislature? If not, what legal qualifications do

you lack? Could a member of the legislature be elected governor or United

States senator?

At the last election did you preserve any of the tickets? Could you secure

any of the ballots that were actually used in voting? Why?

Studies in Civics · 第 5 / 13 章