Fleming - Essays on Rectification of Parliament. Part 5 - Essay No. 11 by "Equality" Part A

Essay No. 11 in Sandford Fleming's 1893 book Essays... on Rectification of Parliament was submitted under the pseudonym "Equality".

The author was likely a U.S. writer.

Essay No. 11 by "Equality"

Table of Contents

[CHAPTER I Introduction] page 122

CHAPTER II The Failure of Legislative Assemblies page 139

CHAPTER III The Single-membered District page 141*

CHAPTER IV The General Ticket page 153*

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This blog contains Chapters I and II.

*Chapters III and IV, and other sections of Essay No. 11 are to be found in other blogs.

[CHAPTER I Introduction] page 122

Representative government is a series of mechanical devices that in modern civilized countries performs two functions.

First, by means of it the electors of a county, nation, district or city, unable on account of their great numbers, to meet together for purposes of legislation, attempt to delegate the law-making power to a limited number of persons.

Second, the persons thus delegated have opportunities for information, deliberation and wise judgment, superior to what the busy people themselves could obtain were they assembled in mass meeting.

Representative government is not an immutable unconscious creature of natural laws but is an artificial creature of self-governing people. It is not a sacred and moral institution like the family, nor is it a fundamental, organic institution like the State itself, but it is simply a contrivance invented by human beings, improved and remodelled as a result of various experiments, and intended to serve as a set of machinery for expressing and enforcing the popular will. It has never fulfilled its purpose precisely, has always failed and broken at points, but on the whole, has succeeded in solving momentous political difficulties.

Yet as society becomes more complex, and problems more intense, weaknesses of the machine become more and more serious. The stagecoach, which in former days served well the needs of rural society and small cities and villages, would poorly support the traffic of a world and the shifting populations of a continent.

Representative government originated without much thought regarding principles of government or political philosophy. It grew out of necessity. It was continued to secure an immediate result. Not until several hundred years after its first introduction did it become a subject of study. Then it had become so firmly established that to many students it was a sort of shock to discover that the system had had a beginning.

When the system under new circumstances reveals weaknesses there needs must be a conscious study of its principles. And this is the era that began with the 18th Century.

The essential idea of representative government consists in the election of a deliberative body of law-makers, whose will stands for that of the community and is obeyed; the voice of the electors themselves. The executive and the judiciary may also be elected but this is not essential. These are expected to execute the laws, not to make them.

They are the agents of the legislature. If they do not obey the law-making body, then representation is a failure. Provisions for their obedience are a necessary part of the machinery of representation. But it is subordinate to the main mechanism.

Representative government is a modem invention. It belongs to those modern nations that we call civilized, i.e., those that have taken their rise in Europe and have spread thence over the New World.

In these nations the idea of representation has achieved an astonishing development.

Not only the important interests of government are dependent upon it, but in every phase of private life it finds a useful and necessary place. The stockholders in a private corporation have no immediate direction of their property. They delegate control into the hands of directors and managers. Religious organizations are controlled by representatives instead of by the body of the communicants, from the local committees that manage the local churches, to the delegated assemblies, conferences, synods and parliaments, which direct the interests of an entire national ecclesiastical body. Educational interests and institutions are managed by committees and trustees.

Political parties are not groups and masses of voters, but "machines" composed of those who are supposed to represent the party's voters. All of this delegated power, often so absolute and powerful, would have been incomprehensible to the ancients.

[Why Greece and Rome never adopted this device of representation]

Why Greece and Rome never adopted this device of representation is an interesting and pertinent question.

J.S. Mill, in his profound treatise on representative government, in asking how far forms of government are a matter of choice, observes that "political machinery does not act of itself. As it is first made, so it has to he worked by men. It needs, not their simple acquiescence, but their active participation, and must be adjusted to the capacities and qualities of such men as are available.

This implies three conditions. The people for whom the form of government is intended must be willing to accept it or at least not so unwilling as to oppose an insurmountable obstacle to its establishment. They must be able and willing to do what is necessary to keep it standing. And they must be able and willing to do what it requires of them to enable them to fulfill its purposes."

[page 123]

Exactly these qualities of practical co-operation are above all others required in government by representatives. The people must be obedient to law. They must yield their immediate wishes to the decisions of their deliberative bodies. They must be capable of political co-operation with definite purposes of public policy. Otherwise they will cling to some striking personality or magnetic leader, and submit their wills to his. They must be free from the "inveterate spirit of locality."

A petty local selfishness that cannot look beyond the interests of the immediate neighbourhood can never permit the broad movements of policy that take in nations and subordinate localities. Consequently Mill observes that nowhere does history furnish "any example in which a number of these political atoms have coalesced into a body, and learned to feel themselves one people, except through previous subjection to a central authority common to all." The consolidation of tribes and principalities into kingdoms and nations has been the result of conquest.

And representative government has arisen, not as a device for promoting this consolidation, but as a result of it, in order to protect the people against the oppression of a military conqueror and his successors. It was the sufferings they endured from a common oppressor that drew them together in common opposition.

The growth of representative government, then, is the growth of freedom and democracy. It is the institution of the masses. It fulfils its highest functions when it unites distant tribes and peoples into mighty nations, and at the same time assures them freedom and local independence. It is thus the link that unites a powerful, far-reaching central government to patriotic and independent millions of citizens. The question of representative government is therefore a fundamental question of democracy.

It is not to be supposed that the ancients were without any institutions that took the nature of representation. We read of councils of elders among the very earliest records of the Jews, the Greeks and the Romans. But these elders were not elected elders, representing the free choice of the people, but were hereditary chiefs and patriarchs of clans. They represented their followers by divine and inherited right instead of by popular choice.

The history of all races that have achieved distinction has been a history of federation.

Back in the dawn of history there are traces of small independent village communities living isolated lives and united by the ties of blood. Each village had its patriarch who was at the same time king, priest and chief. But soon these village clans were drawn together by alliances, at first temporary and afterwards permanent, for purposes of defence and conquest. Now, the chief of one clan became permanent over the others. But his supremacy was not absolute. He could act only with the consent of the other chiefs.

In council he was the presiding officer. Thus the king and his council of hereditary elders were the ruling representatives of the people in the time of the judges in Israel, of Homer, and of the kings of Rome.

Every reader of the history of politics is familiar with the universal growth of the power of the people in making laws. From the very first, the king and his elders found it necessary to submit the result of their deliberations to the popular assembly of men in arms for rejection or ratification. But there was no public debate. The warriors simply expressed by their shouts and clashing of arms their assent or dissent.

But not until the principle of election was substituted for that of heredity, did the people themselves gain control of the laws. This principle, however, was of slow growth.

The history of Athens in this respect is characteristic of all ancient democracies.

First, the king and his council of elders promulgated the laws and sought the assent of the people. The first conflict in this arrangement was not between this council and people, but between the king and the elders. Popular sovereignty has never spread out and downward among the masses of the people by leaps, but has always been preceded by an aristocracy and an oligarchy. The elders in Athens were the first to demand and secure the principle of election. They made the king a limited monarch and acquired the right to choose him, first for life, then for a term of ten years, and finally they elected nine archons or kings for a term of only one year. The elders thus developed into a nobility and an oligarchy, making the kingly office wholly dependent on their own will.

[page 124]

But meanwhile, the people were growing restless and revolutionary. The oligarchy, in usurping the powers of the king had trampled upon the rights of the people and had oppressed them through harsh debtor laws and the monopolization of the land. The next step was to make the aristocracy itself elective. This was the work of Solon. The nine archons were to be chosen for one year by a popular assembly, not from the people at large, but only from the ranks of the nobility and the wealthy. Their duties were executive and judicial.

The popular assembly included all classes except slaves. It elected the magistrates and enacted some of the laws. But it did not originate the laws. This was done by a new body of representatives, the Senate of Four Hundred, chosen for one year by the popular assembly from among the three propertied classes, and presided over by the archons. It was therefore a kind of aristocratic House of Commons. It could enact most laws without reference to the popular assembly. Finally, there was the senate of the Areopagus, the Athenian House of Lords, the remnant of the old council of elders. Membership here was for life. It had no legislative power, but only a kind of general supervisory authority.

Thus Solon endeavoured to establish a representative democracy with a conservative balance wheel, and a limited popular referendum. But the people were not yet able to maintain this sort of government. After a short period of anarchy it ended just as the republics of Mexico and Central America and Hayti have ended, in a tyranny under the forms of representation. Peisistratus held autocratic sway for fifty years, supported by the votes of the popular assembly and practically appointing his henchmen to all the elective offices, just as a city "boss" today in America nominates his candidates, and the voters excite themselves with the show of electing them.

Still, the popular assembly was educating the people. When the sons of Peisistratus abused their power, the people deposed them and chose Clisthenes to draw up a new constitution.

This constitution introduced the ripest fruits of Athenian democracy. Under it Athens reached her pinnacle of power. The suffrage was extended and equalized.

Every citizen was made eligible to the senate of five hundred, and the senate of the Areopagus was limited in its powers. All magistrates were elected for terms of only one year. The popular assembly engrossed the law-making powers into its hands. An extreme democracy was reached when minor magistrates were chosen by lots. Thus it will be seen that Athens never successfully adopted representative government. She could not trust her representatives. Her citizens took from them the powers of legislation, both in its initiative and final determination. But so large a mass meeting could not enact laws, and therefore they followed their popular leaders, like Peisistratus and Pericles.

They simply expressed the decrees, but the laws proper could only be made and altered and harmonized by a smaller body of representatives. Without a proper control over this revising legislature, the Athenian system could never succeed. But compared with modern states and cities, we can see wherein are to be found the elements of success that it actually achieved. Athens, with the whole of Attica, was a small community, covering no larger area than an American township. Its population at no time exceeded 500,000, and four-fifths of these were slaves and had no part in government. Its citizen population numbered only 90,000, of whom 18,000 were eligible voters. They were supported by slaves, and could therefore give their whole time to public affairs. How different from the citizens of the modern city! There are no slaves — all are voters. Not only do the manual workers have a share in controlling the local politics, but the wealthy classes do not look upon business as dishonourable, as did the Athenians, but business is the main vocation of their lives, and politics has a very subordinate place.

The Athenians being limited in numbers, with abundant leisure and small distances to travel, could easily assemble in mass meeting. Hence political parties on a national basis with local machinery and strict discipline could not arise. Instead of the party caucus, with its intolerance and ambition for party advantage, opposing orators addressed the assembled nation on the broad issues of the day, and the Athenians were educated in wide views of policy. There were no partisan newspapers, which the party voter read in private, but the public meeting was his press and the street discussion his newspaper. [page 125]

There were no private corporations of great wealth requiring legislation. And therefore no organized and paid lobby. Yet, notwithstanding all these advantages, the Athenian system broke down.

The suffrage was extended, new and ignorant voters came into political prominence, and through the privileges of the mass meeting and majority rule they overrode all the better elements of the city. The voters became corrupt and indolent, the easy prey of the demagogue and the briber. And finally, when Athens came under the power of Macedonia, and later of Rome, she lost her right to elect her own magistrates.

Had the hundred independent cities of Greece ever been brought into a united nation, they might have developed a system of federal or state representation. Some progress was made in this direction in the Amphictyonic Council.

But it is the famous Achaean League to which we look for the nearest approach to a federal representation. "This league acted through an assembly, which met twice every year, and to which was entrusted, not only the election of all confederate officials but also the supreme direction of every affair that affected the foreign relations of any city in the league, even though it were an affair not of general but only of local interest. The business of the assembly was prepared by a council, which was probably permanent. There certainly was here a better framework than the Greeks had ever known before for concerted national action. Its chief defects lay in the composition and procedure of the assembly. That body was composed in theory, of every five man of the cities of the league who had reached the age of thirty years.

In fact, of course it consisted of the whole body of the free men of the town where it met (usually Aegium or in later days Corinth) and of such citizens of other towns as had the leisure or the means to attend. The votes of the assembly were taken by towns, not decided by the majority voice of the free men present. The few chance attendants from some distant city within the league spoke authoritatively for their fellow townsmen, the smallest delegation had an equal vote with the largest, and yet there was no fixed plan that would make the vote of one delegation as representative as that of another." (Wilson, The State, page 91-2)

[The Roman republic]

When we turn to the Roman republic we find far more apparent than in little Greece the need of representation. The progress of democracy was parallel to that of Athens.

First, the king was displaced by two councils elected by the senate of nobles. A popular assembly did not arise until the plebs, having revolted against the harsh judgments of the patrician magistrates, acquired the right of electing tribunes. The tribune had power to suspend the judgment of any magistrate upon a plebeian. They were the representatives of the people. They soon became the leaders of the people. Had the tribunes been elected into a legislative body co-ordinate with the senate, they would have furnished the natural prototype of the popular branches of modern legislatures. But such a device did not occur to the Romans. The tribunes became simply the leaders and orators before the popular assembly — the comitia tributa — of the people. This assembly gradually engrossed the greater share in electing magistrates and deciding laws. But the hereditary and wealthy senate was never completely subdued. As the citizenship became more numerous and more degraded, anarchy followed for a long period, and finally the empire restored peace and prosperity.

Especially was the lack of representation oppressive to the wide extended provinces that the Romans had conquered. Provincial governors sent out from the city were wholly irresponsible to the people they governed. The provincials had no redress or appeal except to a corrupt popular assemblage at Rome and had no voting power that could have compelled attention to their demands.

We may quote in conclusion the words of May, who says

"With the lights of modern experience we are naturally led to consider how far a system of representation would have brought these conflicting forces into harmony. By such a remedial measure the forces of the people would have become less dangerous, while the senate would have been strengthened by its moral support. The responsibilities of the senate would have been increased, and the political alienation of classes replaced by mutual confidence. The varied forces and interests of society would have been consolidated.

[page 126]

The wealthy aristocracy would still have ruled the state. They would have shared their power with other classes of citizens. The policy of the state would have been determined, not by irregular conflicts but by timely concessions to popular demands. Representation is the only safeguard against anarchy in democratic constitutions. In Rome representation was peculiarly needed, as it offered the only means whereby large bodies of citizens, enjoying the Roman franchise, but living at a distance from the capital could have exercised their political rights. Without it, the citizens of Rome itself, usurped all their powers; and Roman citizenship outside the walls of the capital was but a barren honour." (May, Democracy in Europe, Vol. I, page 223)

[England]

It is to England that the world looks for the origin of true representative government. The peculiar circumstances and history of the country suggest as natural the form of representation that we enjoy today, as did the circumstances of the Romans suggest the tribune of the plebs. These circumstances were the primitive local government of the Anglo-Saxons and the centralized imperial government of their Norman conquerors.

The combination of these two elements on English insular soil, separated from the conflicts and conquest of the continent, worked out through internal forces the institutions of representation.

The germ of representation is found among the Teutonic conquerors of Britain long before the time of the Norman conquest. These Teutonic conquerors came over in small companies during a period of 150 years and scattered in groups throughout the country. Each group was independent of the others, having its own system of popular government. A process of federation and internal conquest at once began, small kingdoms were built up, and finally the whole of England was united under one king.

But the original townships and minor kingdoms retained much of their powers of local legislation. The township is the "unit of the constitutional machinery." The alodial owners, or the tenants of the manorial lord, met in popular assembly, elected their own officers and passed their bylaws. Their chief officer, the constable or gerefa, was ex officio, the representative of the township in the courts of the hundred and the shire, and with him went the four best men, or selectmen, of the township. They represented the township as a unit in the higher assemblies of the people.

The hundred was a union of townships. With the progress of federation it tended to disappear and to be merged into the shire or county. The shire court was composed of all the freeholders resident in the district, together with the representatives from the townships.

Thus it was both a popular assembly and a representative body. "The primitive Teutonic conception of an assembly," says Hannis Taylor, "whether local or national, rested upon one simple idea, and that was that every freeman resident within a state or district had a light to appear and represent himself in the assembly of such court or district." (Origin of the English Constitution, page 247)

With such a conception as this there could be no true representation, as we understand it. Our representatives have the exclusive right to stand for their constituencies in the assembly. If individuals could appear in their own right there would be not representation of all, but only of the wealthy and the politicians. This was exactly what occurred in the national assembly of all England after its final consolidation. This assembly was not a folk-moot but a witenagemot, i.e., an assembly of the "wisemen" or the "best men." It was not a great tumultuous assembly composed of the whole body of the people, but a small assembly composed of the great and wise men of the land, who met as councillors of the king.

"The only consistent theory upon which this changed condition of things can be explained, is that as the progress of aggregation advanced, the limits of the greater kingdoms so widened as to render a general attendance both irksome and difficult, and for this the mass of the people simply ceased to attend. In this way assemblies purely democratic in theory, without the formal exclusion of any class, shrank up into assemblies purely aristocratic" (Taylor, p. 247)

In the hundreds and the counties, however, the idea of representation existed along with the idea of a popular assembly. It is probable that the selectmen from the township were not at first just four in number nor elected formally by the votes of all the tunmoot, but they held simply the individual proxies of the various voters. They were the wealthier members of the township, who happened to be going to the county court on their own account, and their neighbours in an informal way t

ransferred to them their own right to go.

[page 127]

Gradually this proceeding became more and more formal until the four men were elected by general consent. The mixed character of this county court, being thus partly represented and partly primary, must have given undue influence to The freeman of the township where it happened to meet. It remained for a later day and a new set of political circumstances to develop this primitive unsatisfactory germ of representation into a formal and exclusive principle.

After the Norman Conquest the old idea was continued, which gave to every freeman the right to appear in the national assembly. But for the same reasons as in earlier times only the wealthier land-owners attended. This assembly became known as the Great Council. It was not a representative body, but every member attended in his own primary right. It possessed, with the king, all the law-making authority of England. The king and his council of magnates was the government of England. But there was little legislation to be done. (Hearn, Government of England, p. 417)

The customs of the people were adequate for laws. The king was expected to administer these customary laws as they had been handed down to him. He was not dependent upon the legislature for revenues, because, according to the feudal theory, he was expected to meet the public expenditures for peace or for war out of the customary revenues from his own immense private domains. These were the ancient feudal dues, aids and reliefs, paid by his tenants, the amounts of which were determined not by competition, but by immemorial and well-known custom. In the course of time the alienation of portions of his domains, and the growing expenditures of war and administration, compelled the king to seek out sources for other and "extraordinary" revenues. The experience of a couple of centuries showed that this could not be successfully done by arbitrary exactions from his subjects. He must obtain their consent. It was found, too, that their hearty consent and co-operation could not be obtained when they were approached privately and individually.

Hence the practice grew up of summoning them collectively in order that the king might lay before them the state of his exchequer and the urgency of his needs for additional funds. These assemblies became in time not merely financial but also political assemblies. The king laid before them the general affairs with reference to which he desired their advice and approval and which he considered them competent to decide. In still later times they claimed the right to present petitions for redress of grievances, and even to withhold grants of supplies until their petitions were allowed.

It is not the ultimate powers of those assemblies, so well known, but the manner of their constitution with which we are concerned. They were far from being assemblies for the whole people or of representatives of the people, as we understand such assemblies in our day. They were merely conventions of different interests and classes of men. The earliest financial assemblies were naturally those of the military tenants of the king.

The greater tenants, those holding upwards of six manors, and who had hitherto paid their feudal dues directly to the king, were summoned by name. The lieutenants, who had hitherto paid their customary dues to the king's lieutenant, the sheriff, were summoned indirectly, through writs issued to the sheriffs directing them to attend the assembly.

But they all met together, voted the aid desired, and returned home. The clergy were summoned in like manner, and met in assembly at different times and places from the military tenants. Finally, when incorporated cities began to acquire wealth, they were summoned to send representatives for their own peculiar assembly.

It was Edward I who first consulted these assemblies regarding interests other than financial. Says Hearn, regarding this important phase of the evolution of parliament, "It was no part of his design to carry his changes, however beneficial, with a high hand. In words that well became the noble king of a free people, he acknowledged that "what touched all should be approved by all." (Hearn, Government of England, page 423-5)

But these words conveyed a different meaning in the 14th Century from what they imply in the 19th Century. In those earlier days the cohesion of our national elements was still imperfect. It is only in an advanced state of political development that the social organism exhibits that independence [specialization?] of its various parts that binds them, whether for good or evil, into one national life.

[page 128]

Five centuries ago the divisions of society, now so minute and intertwined, were few and distinct. There was little in common between the burgher and the knight. There was still less sympathy between these two classes and the cleric. The general interest, therefore, and the general approbation, which were assumed to be inseparable, were the interest and approbation of each great class of the community. Each class was concerned in its own affairs and was neither competent nor desirous to interfere with the affairs of others.

Edward accordingly seems to have designed to establish councils of advice for each of the great interests that then existed in the kingdom. While he retained his own authority and the services of the Great Council for legislation, he invited the assistance of all the tenants of the Crown, either personally or through their representatives, on all questions relating to estates or tenures; of the clergy in like manner on all questions relating to ecclesiastical affairs; and of the citizens and burgesses, through their representatives, on all matters relating to trade and commerce. It had at all times been the duty of these several classes to meet for the purpose of considering the wants of the king and the propriety of affording him pecuniary assistance. They were now asked under a more complete organization to perform the additional function of giving to their sovereign information and advice as to their own respective wants and the means of their satisfaction.

Thus out of the financial assemblies Edward formed special consultative bodies, each dealing exclusively with its special class of subjects. In legislating upon these several classes of subjects he sought the advice of the appropriate assembly, although the legislation still proceeded from the king and his council. But in matters not directly affecting any of these classes, or when no charge was directly imposed upon any of them, the king in his council was free to legislate as he saw fit."

It will be noticed that these assemblies were both primary and representative. The assembly of military tenants was originally altogether primary. In 1254 we find the first recorded instance of the introduction of representatives. The lesser tenants, who had been hitherto summoned by the sheriffs, were seriously burdened by the expenses incurred on account of their long journeys and the poor roads.

In 1254, "Henry III, in contemplation of a campaign in Gascony, and in addition to other preparations, commands each of the sheriffs to send his council two good and discreet knights of his county, whom the men of the county shall have chosen for this purpose, in the st ad of each and all of them, to consider along with the knights of other counties, what aid they shall grant the king in such an emergency." (Hearn, page 477)

One year later the lower clergy were first asked to send representatives. Ten years later occurs the first representation of cities and boroughs. These had heretofore been looked upon as little more than despised labor organizations. But their wealth and influence had now greatly increased, and they were destined to play an important part in all financial matters. This innovation was not the work of the king but of Simon de Montfort, the liberal patriot, who summoned both the knights of the counties and the burgesses, because in the revolt against the king he found his natural adherents among the lower orders of the people. He directed the towns to send to his parliament two of their more discreet and worthy citizens or burgesses.

There were, then, at the end of the 13th Century, four distinct legislative assemblies with recognized functions:

- The Great Council of Nobles, which with the king was the ultimate law-making body;

-The assembly of military tenants, including members of the Great Council, and the representative knights from the counties;

- The clergy, including all the higher clergy and representatives of the lower;

- The burgesses, including the representatives of the towns.

How these assemblies coalesced into the modern bicameral system is an interesting evidence of the growing community of feeling and interests among the middle classes of the English people. The clergy were gradually deprived of their power to legislate even on ecclesiastical affairs. The higher clergy, then, merely retained the place that they had always held in the Great Council, and this became the modern House of Lords. The lower clergy, so far as they had political influence, were merged in the electorate of the counties and the towns. In the year 1333 occurs the first recorded instance of the joint deliberation of the knights and the burgesses, though they had previously submitted to the king and council their joint petitions. And in the latter part of the 14th Century they appointed a permanent speaker to represent them before the higher authorities.

[page 129]

This coalescence of town and county was the origin of the House of Commons. It was based on newly discovered common interests and the need of combination against the exactions of the Great Council and the aristocracy.

It was the primitive consolidation of the Knights of Labor and the Farmers' Alliance. [two 1880s-era reform movements also seen in Canada]

[The colonial history of the United States]

When we turn to the colonial history of the United States, we find in each of the colonies a curious repetition in miniature of the evolution of representative assemblies that took place centuries before in the mother country. As truly as the physical child, according to the biologists, repeats in a few months its ancestral history of geological ages, so did these children of English liberty pass in a few years through that development that in medieval England was the slow and painful growth of centuries.

In all cases we find the same problems and the devices of representation to meet them. There were no studied theories nor contemplation of general principles, but the development took place in almost that unconscious way that we observe in the natural world. There were immediate pressing exigencies, and the colonists, with determination to maintain their liberties, took the shortest way of meeting them.

In some of the colonies the full record of the development has not been preserved. What it was can only be surmised from the history of those for which we have information.

It was in Maryland that we see old England most quaintly depicted. The following account is abridged from the scholarly work of Doyle.*

"The constitution, as originally conceived by the proprietor, was to consist of a governor, a council and an assembly... An ordinance sent out by Baltimore in 1637 vested all judicial power in the governor and council... The original deliberative and legislative body, in the case of Maryland was a primary assembly at which any free man of the province might present himself and vote... At the outset, while the colony was but a single encampment of log huts, all the freemen might easily meet together for the trifling business of the colony. But as the settlement gradually expanded over a wider area, how could the planter leave his corn to be eaten by deer, his cattle to stray in the woods, his pig to be stolen? Every year the assembly would have become more and more a little oligarchy of those living at or near the centre of government.

[1638 proxy votes in Maryland used instead of elected representation]

"One would suppose that the remedy of representation would at once have suggested itself. But before that was adopted, a more cumbrous and far less efficient device was tried. In 1638 the assembly met for the second time. Their proceedings, unlike those of the previous session, are recorded. On this occasion, those who could not appear in person were allowed to send proxies. If such a system avoids the evils incident to a primary body, it brings with it other evils of a directly contrary kind. It may be bad that an energetic and ever-present minority should have everything its own way. It is worse that energy and constant attendance should count for nothing, and that the voter who delegates his power to another should have as full a share in legislation as the voter who exerts himself to attend.

"The evils of this system were amply illustrated in the events of the year. The assembly, undeterred by its failure, proceeded to enact a set of laws... While the proposals of the assembly, or rather a part of it, were under discussion, a rival set of laws was sent out by Baltimore. Apart from the intrinsic merits or demerits of the proposed laws, it was clearly a most serious question whether the initiative in legislation was to belong to the proprietor or the colonists... The division that followed illustrated forcibly the evils of the proxy system. The acts sent out by the proprietor were rejected by thirty-seven votes to eighteen. Doubtless there were proxies on both sides, but in the minority twelve of them were in two hands, those of the Governor and Councillor Sawyer.

No better illustration could have been found of the danger to the liberties of the colony involved in this anomalous system.

...Early in the next year another assembly was called. Its constitution brought the colonists one step nearer to the system of representation. Regular writs were issued to the various hundreds instructing them to return representatives. Yet after the election one person at least came forward and claimed the right of appearing in person, on the ground that he had voted in the minority, and so was not represented.

[page 130]

The claim seems to have been allowed, and nothing could illustrate more forcibly the complex and hybrid system on which this assembly had been formed. It showed that the logical result of that principle was that in a constituency of fifty, a majority of four-fifths might have two votes, and a minority of one-fifth, ten.

This was not the only anomaly in the constitution of the assembly. The proprietor claimed, and it would seem obtained without challenge, the right of summoning members by writ. The claim evidently proceeds from a confusion in the original constitution of the legislature. That an upper chamber should be nominated by the proprietor was only in accordance with the principle of the English constitution. But that arrangement presupposes a division of the legislature into two chambers. To allow it, while the whole body, those summoned by writ and those elected by popular suffrage, sat, voted and deliberated together, was simply to enable the proprietor to swamp the representation of the Commons with his own creatures.

The incongruous combination of a representative with a primary assembly disappeared three years later. The legislature when it met in 1639 declared by its first act that the assembly should consist of the governor and secretary, those named by special writ, lords of manors, one or two burgesses from every hundred, and all freemen who had not consented to the aforesaid elections.

In the next assembly the right of personal appearance was in at least one instance claimed and refused. Nevertheless in 1642 the governor reverted to the earlier system and required the freemen of the colony to appear either by themselves or their deputies.

Out of 106 persons who obeyed this summons, 72 availed themselves of the right to send proxies. One of the first proceedings of the assembly was to define the constitution of the legislature by limiting the popular representation to the elected deputies, and with this reform the last trace of the earlier system disappears." (English Colonies in America. Maryland, Virginia and the Carolinas)

I have quoted this scholarly description of the origin of representation in Maryland, because it presents lucidly in miniature the problem of representation as it appeared to a primitive English communities. We have here the aristocratization of the original primary assembly, the device of the proxies, then the election of representatives by districts with the old idea still remaining that every freeman had his own right to appear if the elected delegate did not represent him. But this attempt to do justice to the minority in the districts was abandoned, since it would have enabled the primary voters to swamp the representative element of the assembly. All who were not duly elected were ultimately excluded. The problem of minority representation from the apparent necessities of the case was given up as a hopeless undertaking.

In Virginia representative institutions sprang suddenly into full being without the preliminary transition from a primary assembly. In 1619, according to the oft-quoted expression of the Tory historian, Hutchinson, a "House of Burgesses broke out in Virginia."

It was summoned by the governor in obedience to instructions from the Company in England. Every freeman had a vote, and every county and hundred was to send two members. Certain outlying plantations, too, had the right of sending a member.

The colonial Virginia legislature is remarkable mainly for the brilliant men who in later years were returned to its halls. The presence of such men, we may be sure, was due to the oligarchical nature of the county governments that returned them. The richer families became connected by an unbroken chain of close intermarriages. Thus in Virginia a strong sense of caste grew up among the dominant order. (Doyle, p. 395)

"The Virginia system, concentrating the administration of local affairs in the hands of a few county families, was eminently favourable for developing skillful and vigorous leadership. While in the history of Massachusetts during the revolution, we are chiefly impressed with the wonderful degree in which the mass of the people exhibited the kind of political training that nothing in the world except the habit of parliamentary discussion can impart, on the other hand, Virginia at that time gave us—in Washington, Jefferson, Henry, Madison and Marahall, to mention no others—such h group of consummate leaders as the world has seldom seen equalled." (Fiske, Civil Government in the United States, p. 66)

[page 131]

Representation in the colony of Plymouth went through a process of development like that in Maryland, says Doyle: "A primary assembly was superseded by a system of representation, and there was a period of transition, during which the two were in the same measure combined. But the superior political intelligence and constructive power of the New Englanders is manifest throughout the process. At Plymouth the change was effected easily, indeed almost spontaneously and completely, with none of those compromises that accompanied it in Maryland.

"The growth of new townships gave an impulse to the political life of the colony. So long as Plymouth was the only settlement, constitutional machinery of a simple kind sufficed. The power of making laws was vested in the whole assembly of the freemen.

The judicial and executive body, called the Court, consisted of the governor and seven assistants elected by the assembly... The addition of Scituate and Duxbury made some system of delegation necessary. Complete representative government did not, however, come at once. In 1636 eight deputies met, four from Plymouth, and two from each of the other colonies, and in conjunction with the court revised and codified the laws....

The selection of deputies was only intended as a temporary measure for a special purpose. But in November 1636, another step was taken in the direction of a representative system. The functions of the General Assembly were divided. The meetings for legislation were to be kept distinct from those for electing the governor and assistants. At the former the whole body of freemen were to attend as before; at the latter, proxies were to be allowed. The need for this change was illustrated by the fact that two years later sixteen freemen were fined for absenting themselves from the assembly.

In 1638 the system of representation was definitely introduced, and the functions of the legislative assembly of freemen were definitely transferred to deputies. Plymouth returned four, each of the other towns two... Apparently the new system did not formally supersede the old. The primary assembly still seems to have remained in theory the supreme legislative body. In practice, the advantages of representation asserted themselves, and the more cumbrous system fell into disuse." (Puritan Colonies, page 71-72)

In the colony of Massachusetts Bay we find again similar conditions and a similar outcome.

"The growth of fresh settlements brought with it an expansion of the constitutional machinery of the colony. Of all the colonies that have yet come before us, Virginia is the only one where a system of local representation came into existence at once in full working order. In every other case it was reached after a variety of contrivances and compromises. The reason is plain. Every other colony enjoyed a certain amount of independence before it had grown large enough to make a local representation either needful or possible.

Only in Virginia had the colony the needful materials for a representative assembly at the time when it first acquired the right of self-government. It might be thought that the rapid formation of separate plantations would have made Massachusetts a second exception. But if it be not a paradox to say so, the constitution of Massachusetts was older than the existence of the colony. The legislature of the colony was simply the general court of the company transferred across the Atlantic. At the same time the dispersal of the settlers at once unfitted that body for the work of legislation. The remedy first applied to this difficulty was, not to substitute a representative assembly for a primary one, but to limit the functions of the court. It is clear that there was an oligarchical temper at work among the leading men in Massachusetts. The action of this was plainly shown by the transfer of all legislative rights from the court of freeman to the governor, deputy-governor, and assistants. At the same time the election of the governor was handed over from the freemen to the assistants... .

True to English precedent, Massachusetts found the salvation of her constitutional liberties in a question of taxation. When the governor had intended to change his abode to Newton the assembly resolved to fortify that settlement at public charge... To meet the cost a rate was levied on each town by order of the governor and assistants.

Against this the men of Watertown protested... Though the men of Watertown gave way on the main issue their protest seems to have borne fruit. In the next year the powers of the governor were formerly defined by an act. It was also enacted by the General Court in the following May that the whole body of freemen should choose the governor, deputy-governor and assistants.

A further step towards self-government was taken in the resolution that every town should appoint two representatives to advise the governor and assistants on the question of taxation. We can hardly err in supposing that this was the direct result of the protest made by the men of Watertown." (Doyle, Puritan Colonies, p. 104-106)

[page 132]

It was in Connecticut that the origin of representative government first appears as a federation of independent towns, rather than a delegation of local representatives to resist a central authority. The three towns that had been settled along the Connecticut river, united in January 1638, and "formally declared themselves a commonwealth with a constitution of their own.... A system of representation was adopted at once instead of being slowly worked out through a series of expedients and compromises. The legislature was to consist of a governor, six assistants and deputies. The governor and assistants were to be elected annually by the whole body of freemen, met in a generaI court for that purpose. The deputies were to be elected by the three existing towns, four from each. As fresh towns were formed their number of representatives was to be fixed by the government." (Doyle, The Puritan Colonies, Vol. 1. page 159-160)

The other colonies passed through similar experiences. A common form of government was developed in them all. At the time of the Revolution very conservative changes were made to suit their newly acquired independence.

"First, there was the two-chambered legislature, of which the lower house was the same institution after the Revolution that it had been before. The upper house, or council, was retained, but in a somewhat altered form. The Americans had been used to having the acts of their popular assemblies reviewed by a council, and so they retained this revisory body as an upper house. But the fashion of copying names and titles from the ancient Roman republic was then prevalent, and accordingly the upper house was called a senate. There was a higher property qualification for senators than for representatives, and generally their terms of service were longer... In most of the states there was a lieutenant-governor, as there had been in the colonial period, to serve in case of the governor's death or incapacity. Ordinarily, the lieutenant-governor presided over the senate.

Thus our state governments came to be repetitions on a small scale of the king, lords and commons of England. The governor answered to the king, with his dignity very much curtailed by election for a short period. The Senate answered to the House of Lords, except in being a representative and not a hereditary body. It was supposed to represent more especially that part of the community that was possessed of most wealth and consideration. In several states the senators were apportioned with some reference to the amount of taxes paid by different parts of the state. When New York made its senate a supreme court of appeal, it was in deliberate imitation of the House of Lords. On the other hand, the House of Representatives answered to the House of Commons as it used to be in the days when its power was really limited by that of the upper house and the king." (Fiske, Civil Government in the United States, page 164-165)

Little need be said in this place on the origin of the federal legislature. It is well known to have been a conscious imitation of many features in the different state or colonial constitutions. As the result of a compromise between the large and the small states, the Senate represents the states as corporate bodies, and the House of Representatives represents the people of the states in proportion to their numbers.

[Canada]

The development of representative institutions in Canada was like that in the United States in its ultimate results, but in its origin there was nothing like the primary assembly or local self-government. "The British government, after its experience of the old Thirteen Colonies, decided to guide the affairs of their remaining possessions with the hand of a gentle despotism, and did not permit the formation of institutions that might weaken the allegiance of the people to the Crown." (Bourinot, Local Government in Canada, 67)

Especially had the French colony of Quebec been utterly devoid of the semblance of local government. When in 1791 a representative assembly was established for the colony, to bring it into harmony with English habits, there was found to be no local governments that possessed enough of the organic nature to warrant their recognition as "units of the constitutional machinery." The parishes and townships were simply administrative divisions, ruled over by the appointees of the central government and by the parish priests.

[page 133]

The people took no part in government. Consequently new arbitrary territorial divisions were created for parliamentary purposes without reference to previous organizations. In the Report of Lord Durham to the English authorities in 1839 are the following words: "If the wise example of those countries in which a free and representative government has alone worked well had been in all respects followed in Lower Canada, care would have been taken that at the same time that a parliamentary system, based on a very extended suffrage, was introduced into the country, the people would have been entrusted with a complete control over their own local affairs, and been trained for taking their part in the concerns of the province by their experience in the management of that local business that was most interesting and most easily intelligible to them. But the inhabitants of Lower Canada were unhappily initiated into self-government at the wrong end, and those who were not entrusted with the management of a parish were enabled by their votes to influence the destinies of a state." (cited by Bourinot, Local Government in Canada, page 24)

In Upper Canada similar arbitrary divisions were made for the purpose of representation.

But the inhabitants here were Englishmen. They soon developed both a vigorous and local parliamentary system.

It was not until 1840 that parliamentary government was fully established in the province of Canada. At that time the arbitrary irresponsible power of the Crown's appointees was supplanted by the creation of a responsible ministry dependent upon the support of the lower branch of the legislature. In 1867 the British North America Act performed for Canada what the constitution of 1787 performed for the United States, it created a federal government.

[Comparison between the circumstances and problems of its origin and those of the present day]

With these historical and elementary facts before us, and knowing the present organization of representative government in the different countries under review, we may profitably draw a comparison between the circumstances and problems that characterized its origin and those of the present day. We shall find that not only are the circumstances and problems today radically different, but the very nature of representation itself has changed in company with other social and political changes.

1. In the first place, the original problem of representation was that of nationalization. [forging of unified nations]

The government of England was formed by the welding together of independent local communities into a unified central organization, without wholly destroying the original local organization. The "inveterate spirit of locality" was yet paramount, because of the lack of highways, traffic and intercommunication. The youthful spirit of nationality was just beginning to breathe. Representation was not the representation of individuals, but of corporations and localities.

"The basis of English representation has never been personal, but always organic... Our electors have always voted, not because they were men or even because they were Englishmen, but because they were freeholders of a particular county, or because they were citizens or burgesses of a particular city or town.

Their right is circumscribed by locality... Thus our system of representation is the representation not of interests or opinions or of population, but of population organized. It regards men not merely as men, but as neighbours. In one sense it is obviously true that a district cannot have other rights than those of the people who inhabit it. But the rights of a district are those of its organized population. Its inhabitants by virtue of their residence have, as compared with the inhabitants of other places, separate habits and interests and associations, peculiar views on public affairs, and peculiar sympathies and modes of thought. These distinctive habits and feelings produce a distinctive character. The individuality, the independent life of each political body is established, and it acquires and desires to express its special shade of feeling and thought." (Hearn, Government of England, p. 501-2)

This is the original and primitive idea of representation. But today the institution is quite different. The change has come so gradually that it is hardly appreciated. The problem of nationalization has been fully settled. Not only the kingdom of England but the kingdom of Great Britain has become a single organism. Localities have lost their significance and their adoration. Railways, telegraph, the newspaper press, internal traffic and communication and political representation have brought the people together. Foreign relations, a world-wide system of colonies and dependencies, national armies and navies have exalted a national flag and inspired a national patriotism.

The representative today is therefore not a mere agent of a close corporation, having general powers, it is true, but speaking and acting only for his constituents.

Besides this, says Hearn, "he is a member of the supreme council of the Crown.

He is to give the king true and faithful advice to the best of his judgement... Thus, although he has been selected by the electors or a portion of the electors of a particular district, he represents not merely those who voted for him, or even the inhabitants of his district, but the whole kingdom." (Hearn, p. 506)

Hearn holds that this was the ancient conception and usage. However that may be, its significance was not appreciated so long as the great council retained the chief legislative powers.

When the representative body became supreme then it could be said in the words of Burke: "Parliament is not a congress of ambassadors from different and hostile interests, which interest each must maintain as an agent and advocate against the other agents and advocates. Instead parliament is a deliberative assembly of our nation with one interest, that of the whole, where not local purposes, not local prejudices, ought to guide, but the general good resulting from the general reason of the whole. You may choose a member, indeed, but when he is chosen he is not a member of Bristol, but he is a member of Parliament." (quoted by Hearn, p. 507)

[United States]

In the United States, too, the problem of representative government from the earliest times until the reconstruction period, which followed the war of 1861-65, was that of consolidation and union.

It passed through three stages.

The first was the union of counties and towns into independent colonies.

The second was the confederation of states for military revolt.

The third was that of nationality.

By the first, our state legislatures have arisen. By the third our national Congress.

A division of powers between state and national legislatures has recognized a difference between state and national questions. But each in its own sphere stands for a unified people.

"The representative in the state legislature, no matter from how remote a county, does not represent alone that county. He represents the people of the state. He legislates upon the common interests of all. And so it is with the national Congress. The senators represent in a peculiar sense semi-sovereign states, and partake of the nature of ambassadors, and the representatives come more directly from the people of the states, but both are national and not local officials. They draw their salaries from the national government. They vote upon the common interests of all the states and all the people. The members from California make laws for the people of Florida.

In Canada, the original problem of representative government closed with the British North America Act of 1867. At that time an independent nation was practically consummated.

2. On account of the long-developing organic nature of the whole English nation, many of the questions and policies that were considered in ancient times as local and class questions, and were treated by separate assemblies, are now national questions in which every citizen and every individual has a pressing interest.

England: In the 13th Century, export and import duties were the especial interest of the merchants and buyers. It was upon their petition that customs tariffs were imposed, and the other assemblies were not consulted. So too, with mercantile law. Questions relating to the tenure of land were referred only to the assembly of military tenants, and the greatest statutes of English real property were determined without consulting the burgesses or the clergy. The clergy managed their enormous estates without reference to other assemblies. And the great council enacted laws of a political nature, like the government of Ireland and Wales or foreign relations that were supposed to have no concern for clergy, knights and burgesses, without consulting these popular bodies.

But all of these questions now affect every Englishman. They are national questions, and the representatives who deliberate and legislate upon them, must do so from the standpoint of the nation, and not from that of their locality or class. More important as a national question than any that have been mentioned, is that of taxation and expenditure. It would be unthinkable today to leave these matters to the determination of those sections and classes that were immediately interested.

[page 135]

U.S. and Canada: The same is true of the United States and Canada. The intercommunication of all kinds has so bound together the states and provinces into an organic whole, that national laws are vital to the interests of each. Foreign relations, currency, customs duties, are national questions, and we have seen citizenship and rights of property come under federal protection, and federal control has reached out for the two most influential business interests, banking and railways. Federal interference has grown into marvellous ramifications, and with the consolidation of enormous trusts and syndicates, we may expect to see it still further extended.

3. [modern growth of national political parties]

3. Growing out of these historical conditions we can perceive the impressive significance of the modern growth of national political parties. Before there were national questions there were no national parties. But even the early development of party divisions was on territorial lines. The Whigs were almost unknown in the counties, and the Tories unknown in the cities. Consequently, there was no important minority in either division which was unrepresented. Cities were unanimous on national questions, and so were the counties, because the only important question they had to meet was the demand of the king for additional subsidies.

More or less the distinction between city and country continues to the present day, but distinct lines have been changed from their original boundaries, villages and counties are thrown together, national parties are often evenly divided in the territorial districts, and a representative of the majority, therefore, does not represent the opinions and wishes of the mass of his constituency. The minority is simply crushed for the time being.

In Canada the character and political influence of political parties are about the same as in England.

But in the United States this power has reached a height unattained by those of any other country. This power is the growth of not more than fifty years, and especially hits it made its greatest advances since the period of the civil war. The peculiar feature of the development has been the supremacy of that new force in political parties, the "machine." Party organization is an essential element of party government, but the extent, perfection and detail of this organization in the United States is something bewildering. It controls both candidates and voters with an iron-like grip, and they glory in their subjection. These parties are not divided on territorial lines. They are divided, on national questions.

In colonial times parties were unknown. Or, rather, we might say there was a court party represented by the governor and his council. But the legislatures, the representative bodies, practically stood for a united people. The upper house being appointed by the governor, the lower house was drawn together as a single unit, representing all the people.

No matter from what county a representative was returned, he was the ablest man in the county, for the people were unanimous in their wishes to withstand the party of prerogative.

Furthermore, the districts were all alike, being exclusively agricultural, and a representative from one was in harmony with the people of the others. There was no minority in any district to be unrepresented by a delegate chosen by the majority.

But today, the legislature, instead of being the organized representatives of those who protested against the government, is itself the government. Within its halls occur the conflicts for the control of the fortunes and destinies of the people. There is no outside enemy whose constant presence enforces harmony and mutual help. But two great parties stand face to face in conflict, and whichever masters the legislature masters the people.

4. Furthermore, from the earliest times, suffrage, both in England and the United States was narrowly limited.

In England this continued until the latter half of the present century [til the late 1800s]. The masses of the people were not considered as citizens or entitled to political consideration. In the counties, serfs, copyholders, and the lesser freemen were excluded from the suffrage. Only the freehold knights were voters.

The cities were close corporations, made up of the mayor and aldermen and a few leading men of the guilds.

Altogether, perhaps not one-fifth of the adult male population were entitled to vote for representatives to parliament. As a result, these classes in their respective districts were practically unanimous on the few questions of national interest for which they were required to select representatives.

But in modern times the great political questions are those that grow out of the citizenship of the manual labourers, the former serfs. They have to do directly or remotely with the profound problem of the distribution of wealth and the betterment of the social conditions of the lowest classes. These classes are distributed throughout all districts. They form the great foundation structure of every community, upon which the other classes are built. They form the majority of the voters..

[page 136]

They feel that they have not heretofore been represented in the councils of the nation. They are unaccustomed to politica1 power.

Therefore they are the fertile soil for demagogues and partisans. They hold the balance of power. They must be placated and pacified. The party or candidate who presents to them the most specious appeals wins the day. They themselves are not allowed to combine according to their natural divisions and elect their acknowledged leaders to parliament.

Labour unions are now scattered through a hundred districts. If they could combine throughout the kingdom, they would unite. The more intelligent of the labourers would select those who represent them as a body, just as they select their union presidents and secretaries. As it is, they are forced into artificial territorial divisions and are compelled, along with the whole of the electorate, to submit to the dictation of the candidates who appeal to the more ignorant, thoughtless, prejudiced and easily influenced minority. The trial of representative government in England did not really begin until 1867 and 1884 when the labourers were enfranchised.

We have seen how the local governments of the American colonies were close corporations. In the South, it was the aristocratic families, united by ties of blood and marriage. In New England it was the church members, who alone held the suffrage.

But in the United States of today not only the native Anglo-Saxon is admitted to the Suffrage, but also millions from antagonistic races. Especially is this true of the cities. If England is threatened by the widening of the suffrage, far more so is the republic of America.

5. Again, legislation in the olden times was very limited both in the number of subjects discussed and the details of the regulations. The people were satisfied to live according to the customs of their ancestors. Government was simply a matter of administration. The king, his council, his officers, and his judges were not called upon to make new laws but, to learn what were the customs of the land and then to act accordingly.

But today, legislation is the most intricate of arts depending upon the profoundest of sciences, and dominating the most vital of human interests.

There are hundreds of pressing problems requiring legislative direction that the assemblies of Edward I, or even the Parliaments of George III never dreamed of as having a social importance.

"Time was," says Woodrow Wilson, "in the infancy of national representative bodies, when the representatives of the people were called upon simply to give or refuse their assent to laws prepared by a king or by a privileged class in the state, but that time is far passed. The modern representative has to judge every weighty plan, preside over every important reform, provide for every passing need of the state. All the motive power of government rests with him. His task, therefore, is as complex as the task of governing, and the task of governing is as complex as is the play of economic and social forces over which it has to preside. Law-making now moves with a freedom, now sweeps through a field unknown to any ancient legislator. It no longer provides for the simple needs of small city states, but for the necessities of vast nations, numbering tens of millions." (The State, p. 583)

The modern legislator must therefore, be a well equipped man. He must give the greater part of his time to parliamentary duties, and above all must have a long experience in his particular art. These qualifications, it is true, England secures in her parliamentary leaders better than other countries. But new conditions are fast making short-term men of the majority of the members of parliament. This tendency is checked only by the wise custom that permits the election of non-residents to represent a district.

To the American, bound by the three spirits of local pride, local spoils and democratic equality, this custom is incomprehensible. Indeed, it rests on tradition.

[Britain]

So important is this principle as a relief from the restrictions of the district system that the following account given by Hearn of its origin and purpose is in place.

[page 137]

"There is no room for doubt that originally members of parliament were required to be residents in their respective electorates. The early writs invariably commanded the election of two knights de comitatu tuo, and in like manner of citizens and burgesses of each city or town in the bailiwick. In the first year of Henry V an act was passed expressly providing that the knights should be resident, at the time of their election, in the counties for which they shall be elected. And that the election for cities and boroughs shall be of citizens resident and enfranchised in the same cities and boroughs, and none others.

This statute, which was merely declaratory of the common law, was confirmed more than once in the following reign. The disposition to infringe upon the old custom, which called for legislative interference, was perhaps due to the desire of employing the services of professional men. We have seen at least that practicing lawyers were excluded. But to whatever circumstance it may have been due, the tendency against the old restriction was too strong to be resisted. Non-residents were constantly elected.

At least in 1681 Lord Chief Justice Pemberton ruled that 'little regard was to be had to that ancient statute (I Henry V.) forasmuch as the common practice of the kingdom had been ever since to the contrary...'

This limitation was originally designed to secure a trustworthy statement of the wants and opinions of each electorate.

But for its continuance another and different reason prevailed. The old restriction was sometimes useful as a protection against the nomination of the Crown or the neighbouring nobles... But even those who on these grounds defended the old law were not insensible to its inconveniences. A compromise who suggested (in the reign of Elizabeth) that one of the members for each borough should be a gentleman resident, if not actually in the town, at least in the neighbourhood, and the other should be a man of learning 'who could speak.'

The principle of residency was indeed inconsistent in two respects with our political development. While this law was in force and the motives upon which it was founded were influential, no true conception could be formed of our national representation.

Further, if it had been enforced, the great popular movement of the 17th Century would have wanted its most prominent intellectual leaders. In the time of the Tudors and for some time afterwards, none of the country gentlemen had or could acquire any political skill. Statesmanship was then exclusively confined to the servants of the Crown.

The country party was therefore obliged to seek its leaders from the Bar. For the most part the leaders thus chosen could not and did not reside in the towns that they represented. Nor was the influence of the lawyers confined to the services, great though they were, which they rendered in their capacity of leaders. Their professional habits and modes of thought that brought to the contest the strong legal character that it never afterwards lost." (Government of England, p. 524-5)

The English system enables a party to keep its great leaders in parliament for a lifetime. There can always be found a number of districts that have sure majorities for the given party. In these districts the national leaders of the party can be put in nomination. Thus the English House of Commons is an assemblage of giants, representing not localities but the nation. In the course of decade after decade of honourable service they acquire knowledge, experience, wisdom and national views, so necessary to manage the affairs of a modern empire. This makes possible too, an institution that cannot exist in America, the executive [management] of the country by a cabinet chosen from the members of the legislature.

[The U.S. never suffered by the principle of residency]

The American people have never suffered by the principle of residency as do the English. This is because political ability has always been more widely diffused. But it is well known that our ablest and most experienced leaders are often found in districts where their own party is in a minority, or else a hostile legislature especially creates such a district for them.

6. There is one feature that is important in its influence upon legislative bodies themselves [...] This is the private corporation with its professional lobby. Corporations are as recent as party machines, and both have grown up together like Siamese twins. The professional lobbyists are nearly always the managers of the political machine. They carry in their pockets the political fortunes of the legislators. The "Third House" is really the modern legislature, at least in the United States. Corporations from their very inception, and in their daily activities are creatures of the government. Their life is legislation. They cannot, if they would, dispense with their lobby.

This is an entirely new feature in the constitution of representative assemblies. A legislature that may have sufficed for simple duties in the days of isolated individual industries, is almost sure to wither and rot in the era of private corporations with public functions and fabulous resources.

[page 138]

Municipal Legislatures [and the ward question]

It has appeared from the preceding pages that the origin of representative assemblies in state and national governments depended upon the existence of local governments separated by wide territorial areas. This necessitated the adoption of what has become the district system of electing single delegates. Such a system still has its justification in many respects. This is especially so in a country like that of the United States, which comprises millions of square miles, a seven day's journey by fastest rail, dissimilar sections in climate, resources, products and peoples. But why this system should survive to the present day in the election of city legislatures is one of the enigmas of politics, to be solved only by reference to their traditions and inertia of mankind. In the United States and new countries there are not even historical reasons for the adoption of this system.

With them the transition from primary assemblies to representative assemblies was made simply by way of imitation. It was to England that the framers of our municipal constitutions turned their attention when our cities had advanced beyond a size convenient for the ancient popular assembly. It is therefore in the origin of English cities that we shall find the explanation for the origin of the district system.

The earliest records seem to indicate that English cities were merely concentrated hundreds and shires.

Says Stubbs, "The 'burh' of the Anglo-Saxon period was simply a more strictly organized form of the township. It was probably in a more defensible position. It had a ditch or mound instead of the quickset hedge or "tun "from which the township took its name. As the "tun "was originally the fenced homestead of the cultivator, the "burh" was the fortified house or courtyard of the mighty man, the king, the magistrate or the noble...

In these the idea of the free township was retained. Municipal authority depended on no different organization. The presiding magistrate was the gerefa; in mercantile places, such as London or Bath, the port-gerefa; in others the wic-gerefa or the tun-gerefa simply...

The constitution of the larger towns resembled that of the hundred rather than that of the township. In fact, each town generally contained several parish churches with a township organization belonging to each." (Constitutional History of England, Vol. I, p. 92)

In Norman times the larger cities were organized like counties with their sheriff, their country court, composed of all the freeholders of the county and the conventional representatives from the townships. Here we have the original councilmen elected from the minor districts.

But the city was not at all an organic body with recognized common interests. It was a curious mixture of all the different interests that happened to be thrown together in the neighbourhood. For example in primitive London, "there were the original military tenants of the crown, with their independent manors and the agricultural serfs. There were also the parishes governed by the bishop, the chapter and the monasteries. And there were the guilds administered by their own officers, and administering their own property. It was for the most part an aristocratic constitution. It had its unity not in the municipal principle but in the shire." (Stubbs, vol. 1, page 407)

Over all these jarring interests the sheriff presided as the representative of the king.

But the circumstances of the times and the needs of defence drew the residents nearer together in common interests. This appears first in the development of the guilds of merchants. Through commerce they gained wealth. This brought political power. And soon the merchant guild absorbed the law-making power of the entire city, its charter became the city charter, and its maire the city mayor.

"In the reign of Henry II, there can be little doubt that the possession of a merchant guild had become the sign and token of municipal independence; that it was in fact, if not in theory, the governing body of the town in which it was allowed to exist." (Stubbs, vol. 1, page 418)

In still later times, when manufactures arose into prominence alongside merchandising, new guilds were organized representing different trades. There were the weaver, the shoemaker, the goldsmith, the butchers and many others. Each of the craft-guilds had its own alderman, or president. They soon demanded a share in the city government. This was finally granted, and aldermen were given the right to sit together as a lawmaking body, each representing his own guild. In the reign of Edward II, all the citizens were obliged to be enrolled among the trade-guilds. In the reign of Edward II, the election of the city magistrates was transferred from the representatives of the wardmoots to the trading companies." (Stubbs, I, page 419)

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Thus today London, and the municipal system generally, has in the mayor a relic of the communal idea, in the alderman the representative of the guild, and in the councillors of the wards, the successors to the rights of the most ancient township system." (Stubbs, I, p. 424)

The question arises, how did it come about that so rational a system as the election of aldermen by the different organized interests of the cities should have been displaced by the arbitrary system of election by territorial districts? The answer is brief. The ancient system itself was practically an election by wards, because the different trades were all grouped together, each in its own district of the city. And when the federation of guilds was abolished and elections thrown open to a widened suffrage, it seemed wholly natural to continue that district system, which was seen to be in vogue elsewhere.

[the history of Boston shows development of municipal electoral systems]

When American cities adopted representative government they adopted the English system. The transition is vividly portrayed in the history of Boston. (See Bigbee, The City Government of Boston, in Johns Hopkins University Studies in History and Political Science, 5th series, page 22.)

Until the year 1822 the government of Boston had been a primary assembly. On May 1, 1822, the population had grown to 45,000, the qualified voters to 7,000 or 8,000. In that year the general court of Massachusetts drew up a charter entitled "An Act establishing the city of Boston." It was presented to the voters of Boston and accepted by a vote of 2,797 to 1,881... "As authorizing the first departure from the system of local government that had been in operation nearly two centuries, it was regarded as a measure of the very highest importance. Not a few of the old residents who had fought under the eyes of Samuel Adams in the town meetings, looked upon the act that divided their great folk-mote into twelve separate and silent gatherings, where men delegated their rights to others, as the beginning of the end of Democratic government." (Bigbee, p. 23)

Had the people of Boston and of the American cities, while copying the English district system, also copied the English custom of free choice of candidates irrespective of residence, the system would not have been so arbitrary in its results. Nor so destructive to aldermanic ability.

Little need be said about the difference between the problems of representation in cities in its origin and its present development. More than all political organizations, the city is a unit in itself. Aldermen and councillors do not represent wards — they represent the city. The ward has no place in city politics except perhaps as an administrative division.

It is well recognized that cities present the most aggravated failures of American politics. So far as the legislative branch is concerned, the following pages will attempt to show that the failure lies mainly in this unnatural partition into petty districts.

CHAPTER II. THE FAILURE OF LEGISLATIVE ASSEMBLIES.

The American people have succeeded fairly well in the organization of the executive and judicial departments of their government, but there is a universal feeling that the lawmaking bodies are a painful failure. This applies to all grades of legislatures, municipal, state and federal. The newspapers are supposed to say what is popular. Judging from their sayings, nothing is more popular than denunciation of aldermen, state representatives and congressmen. These diatribes do not extend to other officers of government, but are heaped upon the legislators. Every winter when Congress is in session, the business interests are reported to be in a gasp of agony until it adjourns.

And the cry that goes up towards the latter days of a state legislature's session is sickening. A Sacramento daily has just earned the petty spite of the California legislature by printing across its title page in glaring type the words "Thank God the legislature adjourns today." And the San Francisco Bulletin is quoted as recently saying "It is not possible to speak in measured tones of the thing that goes by the name of legislature in this state (California). It has of late years been the vilest deliberative body in the world.

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The assemblage has become one of bandits instead of law-makers. Everything within its grasp for years has been for sale. The commissions to high office that it confers are the outward and visible signs of felony rather than of careful and wise selection. Every state in the Union can furnish examples more or less approaching this.

These outcries are not made alone in a spirit of partisanship. Respectable party papers denounce unsparingly legislatures whose majorities are of their own political complexion. The people at large join in the attack. They have come thoroughly to distrust their law-makers. Charges of corruption and bribery are so abundant as to be taken as a matter of course. The honoured historical name of alderman has become a stigma of suspicion and disgrace.

As might be expected, this distrust has shown itself in many far-reaching constitution changes. The powers of state and city legislatures have been clipped and trimmed and shorn until they offer no inducements for ambition. The powers of governors, mayors and administrative boards have been correspondingly increased. The growing popularity of the executive veto is one of the standing facts of the times.

Cities have been known to turn out in mass meetings to illuminate the heavens with bonfires in honour of a mayor's veto that has rescued them from outrages and robberies perpetrated by their own lawfully elected "city fathers." The latest reform in municipal constitutions has been the transfer of many legislative functions and a great deal of the legislative discretion from the city councils to the mayors. This has been done on the plea of concentrating responsibility. There are many people who would be glad to see municipal legislatures abolished altogether and their duties handed over to the mayor and his cabinet.

The recent constitutions of the new states of North Dakota, South Dakota, Montana and Washington, may be taken as a consensus of the American people at the present time regarding the character and functions of State legislatures.

Says an observing writer:

"The work of the four state conventions brings into sharp relief the essential difference between the tendency and the character of political changes in England and in the United States.

In England every reform in government for a thousand years has had for its immediate purpose the limitation of the powers of the executive. In the United States since 1776 the opinion has steadily grown that it is safer to limit the powers of the legislature and to increase the powers of the executive.

Englishmen distrust the Crown and grant almost unlimited powers to Parliament, while Americans distrust the legislature, especially the state legislatures, and give great powers to their president and their governors...

The articles in the new state constitutions on the 'legislative department' are long and detailed. They seem to be composed by the framers in order to declare what the respective legislatures cannot be permitted to do... Perusal of these new constitutions suggests that the people have lost confidence in their state legislatures, and that the conventions, responsive to this feeling, have sought to anticipate great evils by limiting the powers of the legislature, or by substantially limiting them in declaring by what procedure the legislature shall act, on what it shall not act, and to what extent it may act. The chief limitations on the legislature are with respect to special or private legislation, corporations, political corruption among members, taxation, and power to use the credit of the state...

Among administrative offices (all of them filled by popular election) are several of economic significance. These include insurance, railroad, agriculture, and labour, prison and public land commissions. The first state constitutions knew nothing of such offices.

There are great demands upon the modern legislature and the character of that legislature. But the American people in their state constitutions reveal the tendency to short legislative sessions, once in two years. This is expressive of a hope of escape from two things: escape from over-legislation, which is the activity of zealous men and, sometimes, incompetent men; and escape from inadequate legislation, which is the confession of mere politicians.

It may be that the creation of strong cabinets in the modern state government is a solution of the problem how to escape the danger of a session of the legislation. (F.N. Thorpe, Annals of American Academy of Political and Social Science, September 1891)

The judiciary, too, has gained materially at the expense of the legislatures, both in the provisions of constitutions and in the popular approval. Conscious of the feelings of the people, judges have steadily encroached upon the very fields of legislative discretion. Reluctantly as it may be, judges have more and more assumed the right to set aside legislative enactments.

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This has become boldly apparent in numerous recent decisions overthrowing such peculiarly political statutes as those that redistrict a state for the election of legislative representatives. This interference of the judiciary, however justifiable the reasons, can only be fraught with danger to itself. It is thereby forced into the political arena, where are the heated questions of political expediency, at the expense of its integrity in the field where administration and justice alone are its sphere.

Nevertheless, the judiciary is forced by the people to take this step, as a further limitation upon their discredited legislatures.

This whole movement is portrayed by Mr. Horace Davis, in the following words:

"The executive, all powerful at the beginning (of colonial history) was reduced to a mere shadow of its former glory. In these later days it is regaining some of its lost power. The legislature, at first weak, afterwards absorbed the powers of the other departments but is now much reduced again. Throughout all these changes, the dignity and power of the judges have steadily increased... Their greatest power, most amazing to Europeans, is the authority to set aside a statute that they hold to be in conflict with the written constitution. No other courts in the world possess this unique power.

The scope of this power to declare a law unconstitutional, is much broadened by the modern tendency to limit legislation. The early constitutions were very brief, containing little more than a bill of rights and a skeleton of the government. They left all details to the discretion of the legislature.

Now all this is changed, the bounds of the different departments are carefully defined, and the power of the legislature is jealously curbed, particularly in the domain of special legislation. It will be seen at a glance that this enlarges the relative power of the courts. It limits the legislature, and widens the field of the judiciary at one stroke." (American Constitutions — Johns Hopkins University studies in History and Political Science, third series, pages 55, 59)

These tendencies to restrict the legislature that are showing themselves so unmistakably, and this demoralization of legislative bodies, must be viewed as the most alarming features of American politics. Just as the duties of legislation are increasing as never before, in order to meet the growing vital wants of a bewilderingly complex civilization, the essential organs for performing those duties are felt to be in a state of collapse.

The legislature controls the purse, the very life-blood of the city, the state, the nation. It can block every other department. It ought to stand nearest to the lives, the wishes, the wisdom of the people. It is their necessary organ for constituting, guiding, watching and supporting all the departments of government. Above them all, then, it ought to be eminently representative.

But the legislature is the least representative of all. For the American people above all others, and in a

high degree, too, for all nations who depend upon representative institutions, it is pertinent to inquire carefully into the fundamental nature of these institutions, the causes of their failures and the means, if any can be found, that will adapt them to the exigencies of modern times. Likely there is no simple reform that will revive them. Many different reforms must co-operate in so complex and momentous a problem.

There is at least one feature that reaches the fundamental nature of these institutions, with which all the others are intimately related and out of which they grow. This feature is the system of electing each representative by a single district established on territorial lines.

As has been shown, this is an inheritance from the past, when representation was in its infancy and when its problems were very different from those of the present. It was adopted without any political philosophizing, and has been inherited, like complexion and hair and real estate, without any questioning.

Today is the time to test it and to see whether it suits new conditions. If it is found wanting,it is the time to devise a system that shall be based on solid foundations adapted to modern needs.

The rest of this essay are to be found in other blogs.

See Fleming - Essays on Rectification of Parliament. Part 6 - Essay No. 11 by "Equality" Part B