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?