CALIFORNIA AMERICAN STATE LEGISLATURES. BY ALBERT WATKINS. [Read before a meeting of the Society, January 15, 1890.] The convention which lately formed the constitution of North Dakota was nearly equally divided on the question of departing from the rule of all states of the union in providing for a single instead of a dual legislative body. This action suggests an inquiry into the reasons for thus dividing legislatures, especially where there is no appreciable difference in the composition of the two houses, as in the case of the Nebraska legislature. I give notice at the outset that the object or expectation of the inquiry is rather to show that the dual system is more a clumsy mechanical device of the people to hinder business which their creatures, the legislatures, are created to do, than an undertaking to prove that this arbitrary, clumsy device could be now advantageously or safely abolished. I am not, however, so much appalled at the unanimous facts of forty-two dual legislatures in esse which confront me, as the average prudence would have me be, when I consider how far and how largely we are ruled by habit and prejudice and what average legislatures ought to be rather than what they are. I think a strong case may be made against the legislative house divided against itself that the purpose of its being a house at all may fall, in view of the considerations as to what legislatures ought to be and might be made to do by intelligent selection of their members and proper constitutional and parliamentary restraint. The composition of the two houses of the Nebraska legislature is the same in every particular except the unimportant ones that the upper house is furnished with an ex-officio presiding officer, and that the districts from which the senators and representatives are sent are not strictly identical. But in general senators and representatives may be classified in groups by counties. Moreover members of both houses are elected at the same time for the same term, receive the same pay, and are made unlike only by dividing them into unequal bodies and christering them with different names, before requiring them to perform precisely the same legislative duties in form and in fact. None of the reasons which led to the invention of the dual system applies to the separation of the Nebraska legislature. Continued adherence to the dual system in the absence of the inherent difference in the composition of the two houses, which originally caused and justified separate organization and action, must be explained as a merely arbitrary clog to the operation of representative bodies. The plan seems to be an illogical, though possibly to some extent an effective attempt to prevent legislatures from doing those things which they ought not to do, by throwing obstructions in the way of their doing those things they ought to do, and which they are created to do. Twelve states, namely, Georgia, Maine, Massachusetts, Michigan, Montana, New Hampshire, North Carolina, Ohio, Rhode Island, South Dakota, Tennessee and Vermont are like Nebraska in having the terms of the members of the two houses equal. In all other states the terms of members of the upper house are double those of the lower, except New Jersey, which elects senators for three years and representatives for one year; in Connecticut and New York the terms are respectively two years and one year; in all the rest in question, four years and two years. These last states referred to conform to one only of the main reasons given by constitutional writers for separating legislatures into two houses, namely, that by giving members of the upper house a term double that of the lower house, the former will bring greater experience to their duties and at least half of the members of one house in any legislature will have had the experience of one session. The thirteen states named fall short of supplying this reason for division. But the same results could be secured if desirable by re-electing such members of the single house as show themselves trustworthy and efficient in their first session. But as the dual legislature can only be defended as the result of distrust by the people of their chosen representatives, so the same distrust of their own political work would make them question their ability to re-elect deserving members so as to profit by their experience. Our federal and state legislatures were modeled in respect to the two houses after the British constitution. The house of lords was a result or development of the great struggle of the feudal barons between themselves and also more or less in common against the crown, which resulted in the establishment and recognition of the monarchy on the one hand, and certain powers, among them legislative functions, on the part of the nobility, ecclesiastic and lay, which came to constitute the peers or upper house of parliament. Their original function was to formally consent to the levying of taxes on their domains by the king. The commons were summoned to parliament first in the thirteenth century when the increasing wealth of the cities and boroughs excited the covetousness of the crown and the increasing spirit of independence which received a great impetus from the great charter, rendered it discreet to obtain formal consent to taxation on their property from the commons as well as from the insubordinate nobility. At the first the functions of the commons were to consent to taxation and to petition for redress of grievances. The crown formulated and executed the laws. The parliament simply suggested such measures as they thought desirable. In our day the process is reversed; the executive formally suggesting to the legislatures such laws as he thinks should pass; and his suggestions to his parliaments are probably oftener barren than were the like suggestions of the parliaments to the executive in those carly times. While the commons and the lords for a century sat in the same hall, Westminster, they always voted separately, and finally, in the reign of Edward III, they occupied separate halls. Previous to the French revolution we find the legislative body of France, which was the best example of the development of the feudal system, divided into two houses, the nobility, spiritual and lay, and the commons. Hamilton, who was essentially a monarchist of the English type, in spirit, used the self-same arguments for the provision for a senate in the federal constitution which had been for several centuries used in defense of the English house of lords. To Hamilton the chief task in constructing the new constitution, ostensibly for a popular government, was to protect the government against the people. His idea in this regard was the idea somewhat modified which had sustained or justified despotic government of the world, with here and there an exception, throughout history. In the Federalist he sets forth at length the supposed necessity of a check |