The New International Encyclopædia/Legislature
LEGISLATURE. That body of citizens in any State or nation, or part thereof, which is specifically empowered to make, alter, and repeal the laws. In some countries, however, the power of the legislature is more or less restricted by what is known as the organic law of those countries. In ancient systems of government, legislatures were not well developed, though in Athens there was an assembly known as the Ecclesia, and in Rome there were various councils, which exercised many of the functions which belong to a modern legislature. In the later Roman Empire the chief source of legislation was the Emperor. In the Germanic tribes there were councils, which all freemen could attend, and these survived for a long time in some cases, as for example the Witenagemot (q.v.) among the Anglo-Saxons, though its powers, were curtailed. Likewise the origin of the Spanish Cortes has been traced to the early Middle Ages, but in general, legislative power ultimately rested during the Middle Ages in the King or the feudal noble. In the Holy Roman Empire, the Imperial Diet possessed a shadow of legislative authority. Of the mediæval legislatures, the English Parliament is of the most importance, because it was the only one to attain a complete development. It developed out of the Saxon Witenagemot and its successor the Norman Royal Council. Until the thirteenth century, however, it represented only the higher nobility and clergy and possessed little or no independent authority. During the reign of Henry III. members from the counties and towns representing the gentry and the burghers were admitted, and, in the struggles which followed over the arbitrary exactions of the King, Parliament, as the new body now came to be called, gained increasing power and finally took over from the King the greater part of the legislative authority hitherto exercised by him. It first asserted the right to raise taxes, then to specify the purposes for which they were to be expended, then to inquire into the abuses of the administration and impeach the King's responsible ministers for misconduct. Next it asserted the right to share with the King the law-making power, and to give its resolutions precedence in authority over royal ordinances, and finally it succeeded in establishing its right to freedom from interference from the royal authority and the right to determine upon the qualifications and elections of its own members.
In the English dominions in America legislatures modeled upon the Parliament of the mother country came to be established in every colony. At the time of the adoption of the National Constitution these bodies were bicameral in form in all the States except Georgia and Pennsylvania, the Lower House everywhere being an exclusively popular body. From the first there was a clear-cut distinction between legislative, executive, and judicial powers, and the early constitutions almost without exception expressly required that each set of functions should be exercised by a separate and independent organ of government. The only legislative power left to the Governor was the right to veto bills and recommend the enactment of laws which seemed to him wise and needful.
At the end of the eighteenth century the political reformers on the European Continent looked to the institutions of England for their inspiration, so that during the course of the nineteenth century most of the countries of Continental Europe adopted written constitutions of government providing for legislative bodies, partially representative at least, and vested with the greater part of the legislative power and often modeled closely upon the English Parliament. In some of the Continental States, particularly France, Germany, and Italy, the chief executive still has a large ordinance power which is not only used to fill in the details of legislative acts, but even to supplement them in some cases. Such ordinances, however, are always subject to alteration or repeal by the statutes. So far as the general principles of legislative organization and procedure are concerned, it may be said that the European and American States have pretty nearly reached a consensus of opinion. In all the countries of America and Europe where legislative bodies exist, except in some of the Balkan and Central American States, the bicameral system has been adopted as having substantial advantages over the old three-chambered bodies of estates, on the one hand, and the single-chambered legislatures on the other. There is also substantial agreement that the lower houses shall be popular bodies and consequently vested with the initiation of financial and revenue measures. With this exception the two houses everywhere enjoy substantial equality of powers in legislation. It is a general principle, however, that the upper houses shall also be vested with certain administrative or judicial functions such as the trial of impeachments preferred by the lower houses, the ratification of treaties, the confirmation of appointments to office, the issue of administrative regulations, etc. Similar distinctions in favor of the upper houses exist in the case of the local legislatures of the United States.
The principle of representation upon which the popular chambers rest is essentially the same almost everywhere, namely, apportionment according to the population, often with some regard to geographical division, and choice by district ticket, rather than the apportionment according to classes of voters and choice by general ticket. A striking exception with respect to the principle of apportionment strictly according to population is afforded by the State of Connecticut. The ratio of representation varies greatly. In the Congress of the United States it is one representative to every 194,000 inhabitants, in the German Empire one to every 131,000, in Great Britain and Ireland (on an average) one to every 63,000, in France one to every 100,000, in Mexico one to every 40,000, and in Switzerland one to every 20,000. There is a great diversity with respect to the principles of representation in the upper houses of the legislatures. In general, the representation is of classes or of territorial divisions. In the United States, France, Switzerland, Mexico, and Brazil, the Upper House represents the individual States or the larger administrative units. In all of these except France the principle is equality of representation without respect to size or population of the area represented. In Great Britain, Spain, Portugal, Italy, Austria, and Hungary the principle of class representation predominates, or, to speak more accurately, no general principle of representation exists. Germany has as a part of its legislature a body, known as the Bundesrat, which though in one sense an upper house, at the same time resembles a meeting of diplomatic representatives of the several States of the Empire.
The source from which the legislatures proceed is now substantially the same everywhere in the case of the lower houses, namely, universal manhood suffrage. To this rule there are exceptions, as in Italy, where a complex system of qualifications (education, tax, rent) prevails; in Great Britain, where there is a household lodger franchise; and in the Netherlands, where the payment of a direct tax is required. So far as the upper houses are concerned, there is considerable variety in the source from which they proceed. In the United States and France the Upper House is chosen by indirect election; in Mexico, the Commonwealth of Australia, and Brazil it is chosen by direct election; in Germany and Switzerland it is appointed by the local governments. The British House of Lords consists of peers of the blood royal, English bishops, English peers (hereditary and created by the sovereign), Scotch representative peers (elected for duration of Parliament), and Irish representative peers (elected for life). The constitution of the Austrian Herrenhaus and of the Hungarian Table of Magnates is in the main very similar to that of the British House of Lords. The composition of the Prussian Herrenhaus is somewhat more complex than that of the Austrian; included in its members are representatives of the large cities and of the universities. The Senate in Italy is composed of princes of the royal house and of an unlimited number of peers, nominated by the King for life. The members of the Senate of the Dominion of Canada are appointed for life by the Governor-General. Among the Commonwealths of the American Union the source of both houses is popular election.
The qualifications for members of the lower houses do not now differ greatly in the various modern States of the world. In general they are male sex; mature age, sometimes twenty-one years, although it is twenty-five in the United States, France, Germany, Spain, and Prussia, and thirty in Italy; citizenship, and residence in the State and sometimes in the district from which the member is chosen. The usual disqualifications are conviction of crime, bankruptcy, pauperism, and the holding of incompatible office at the same time. For eligibility to the upper houses there is usually a higher age qualification, the average being about thirty, although it is thirty-five in Brazil, and forty in France and Italy. In Europe appointed members of the Upper House are usually required to be selected from certain professional, learned, or noble classes. Among the States of the American Union the qualifications for membership in both Houses are the same, usually mature age and citizenship.
There is substantial agreement throughout the United States and Europe as to the rights and privileges of legislative members. These are the right of each House to judge of the elections and qualifications of its own members, freedom from arrest during the session, except for treason or other high crimes, or unless the member is caught in the act of committing a crime; and freedom of debate without responsibility to any power except the chamber for words spoken or votes cast. There is not yet unanimity of opinion on the question of whether members of the Legislature should receive compensation. In the United States, Mexico, Brazil, and France the practice exists of granting compensation to members of both Houses, and in Switerland, Belgium, and Prussia to members of the Lower House. In Great Britain, Germany, Italy, and Spain members receive no compensation. In the American Commonwealths the practice is to grant a small salary or per diem allowance together with mileage (q.v.).
The tenure of legislative members varies greatly. In the upper chambers of the European legislatures it is generally for life or long periods of time, although in France it is nine years, and in Switzerland and Germany it depends upon the will of the local governments. As to the lower houses the tenures are usually for short periods of time, ranging from three years in Switzerland to seven in Great Britain. In the United States it is six years for the Upper House and two for the Lower; in Mexico it is four for the Upper House and two for the Lower; in Brazil it is nine for the Upper and three for the Lower. Frequent provision is made for a partial renewal of the upper houses. Among the individual States of the American Union the most common provision is a four-year tenure for the Senates and two years for the lower houses. In some States, however, annual elections of members of the Legislature are still held, although there is a decided tendency toward the adoption of the biennial method. Relative to the powers of the Legislature over its own assembling, opening, adjournment, prorogation, and dissolution, it may be stated as a general rule that in the American republics and in the commonwealths of the United States this right belongs to the legislatures themselves, subject to certain provisions in the constitutions relative to the times of meeting and the length of the session. In the European legislatures, on the other hand, the more common rule is that these are prerogatives of the head of the State. To this rule, however, there are several exceptions and modifications. So far as internal organization, discipline, and procedure are concerned, the general rule is that each house shall be left to its own judgment subject to a few limitations prescribed by the constitutions relative to publicity of procedure, the infliction of punishment on refractory members, and the organization of the chamber. There is a substantial agreement that a quorum for the transaction of business should be a majority of the legal number of members. In some States this is regulated by statute, and in others it is made a constitutional principle. This rule, however, is departed from in the ease of the British Parliament and the German Bundesrat, in both of which cases the presence of a comparatively small number of members is sufficient to transact business.
So far as the frequency of legislative sessions is concerned, it may be stated as a general rule that national legislatures assemble annually. This is required by the Constitutions of the United States and France, while the demands of a complex and increasing civilization make it practically necessary everywhere.
Consult: Bryce, American Commonwealth (New York, 1888); Burgess, Political Science and Comparative Constitutional Law (Boston, 1896); Marquardsen, Handbuch des öffentlichen Rechts der Gegenwart (Freiburg, 1883-94); Demombynes, Constitutions européennes (2 vols., Paris, 1884); and Poore, Charters and Constitutions of the United States (2 vols., Washington, 1878).