GOVT 2305

The LegislatureDefinition and Historical Background

This set of slides is intended to introduce you to the legislative branch and discuss its historical

evolution prior to the ratification of the U.S. and Texas

Constitutions.

Here are a few basic facts about the legislative branch first.

This is intended to clarify what the legislature is and what they look like in the US and Texas. We will

provide detail for each of these in subsequent sections.

A legislature is, simply put, an assembly of lawmakers.

They meet in very large buildings to introduce, debate and pass

legislation.

These are the basic functions of the legislature:

1 - Law Making2 - Representation

3 – Checking the Executive and Judicial Branches

In our federal system, legislatures exist on every level of government.

U.S. CongressState Legislatures

City CouncilsLocal Elected Boards

Here are some pretty pictures of the buildings legislators meet in.

The U.S. Capitol

Another nice photo

Click here for architectural detail of the building itself.

Here’s the Wikipedia entry on the building.

The Texas Legislature

Click here for detail.

In the American governing system, the legislature is designed to be the

democratic branch of government. It is the one designed to be the most closely

connected to the general population and pass laws supported by the people. It is also the institution most subject to the

shifting preferences of the public.

It is expected to be volatile.

Compare this to the executive, which has an autocratic design and the judiciary which is oligarchic in nature.

The executive is expected to be able to efficiently implement the law while the judiciary is expected to be

able to knowledgably adjudicate disputes associated with the application of the law.

Recall that the advantage of democracy of legitimacy, but the

disadvantage is mob rule.

This tells us something about the pros and cons of the legislature. It is intended to represent the diverse interests that exist across the nation, but doing so ensures that it is often in conflict. The

House of Representatives especially is notoriously combative.

The legislature is intended to provide legitimacy to the

governing system. It embodies the principle of self-government. We are more likely, presumably, to think laws are fair – and worth

following voluntarily - if we participated in their creation.

When the House of Representatives was first designed,

it was the only institution on the national level whose members

were directly elected by the people.

Danger: The legislature can be prone to both mob rule and to tyranny of the majority. These tendencies are checked by the executive and judicial branches

through the power of the veto and judicial review.

Here’s some irony: Despite its connection to the general population – and the

assumption that this would make the legislature legitimate - the U.S. Congress tends to be the least respected branch of

government.

See these figures from 2008.Gallup commentary.

Congress Ranks Last in Confidence in Institutions.Record 64% Rate Honesty, Ethics of Members of

Congress Low.

The Gallup Poll found 11% approval for Congress in December

2011.

Notice that the further removed from popular control the

institution is, the more people are likely to approve of it. People like the appointed judiciary more than

the other institutions.

It’s worth discussing why this might be the case.

Let’s be self critical; is our criticism misplaced?

Congress Bashing for Beginners

Most legislature in the United States are bicameral.

Bicameral legislatures contain a lower chamber and an upper

chamber. One chamber is designed to be closely connected to the

general population one is designed to be further removed from it.

The U.S. Congress originally represented the people and the

states equally.

The House represented the people of the nation, it still does.

The Senate – the represented the states

The lower chamber is usually called the House of

Representatives

The Lower Branch tends to be closely connected to small

districts. Its members serve for short terms of office, but can be

reelected, sometimes indefinitely.

As a consequence, lower chambers tend to be large and are often subject to heated arguments.

They are designed – on the national and state levels - to act as delegates and directly and quickly

act on the immediate preferences of the public.

All members are elected by the general population for two year

terms. This allows for the potential for rapid turnover in response to

shifts in public aproval.

In reality, as we will discuss soon, this is rarely the case. Factors exist

which secure the reelection of office holders (incumbents).

The United States House of Representatives has 435 members who represent one of 435 separate districts of approximately 600,000

people for 2 years terms.

Each state is apportioned a number of representatives that roughly proportional

to its percentage of the US population. Texas will have 36 representatives

following the 2012 election. Each state’s representatives are called that state’s

delegation. Here’s a graphical representation of the history of the Texas

Delegation to the US Congress.

For related information from the House website: The House

Explained

The Texas House of Representatives has 150 members who represent one of 150 separate districts of approximately 150,000

people for two year terms.

Upper chambers are usually called a Senate.

The term comes from the Roman Senate.

It was the institutions that represented the interests of the

elites. It is considered to be more prestigious than the House.

The United States Senate is composed of 100 Senators, two

from each state. Each state is represented equally despite the

fact that the populations of states vary from a half million to almost 40 million. They serve for six year

overlapping terms.

The Texas Senate is composed of 31 members who represent each of 31 separate senatorial districts.

Each district has about 600,000 members and they serve for 4 year

overlapping terms.

Upper chambers are further removed from the direct

preferences of the population either by how they are elected to office or by a large terms length

They are designed to act as trustees and slowly, deliberately address the long terms needs of

the republic.

It is also traditionally referred to as the worlds greatest deliberative body. It is designed to allow for

open an almost unlimited debate.

Some question if that is still the case.

George Washington called the Senate the “saucer the cools the

tea.”

It is designed to temper the more “fickle and passionate” House.

"In England, at this day, if elections were open to all classes of people, the property of landed proprietors would be insecure. An

agrarian law would soon take place. If these observations be just, our government ought to secure the permanent interests of

the country against innovation. Landholders ought to have a share in the government, to support these invaluable interests,

and to balance and check the other. They ought to be so constituted as to protect the minority of the opulent against the

majority. The senate, therefore, ought to be this body; and to answer these purposes, they ought to have permanency and

stability.“

--James Madison, quoted in Notes of the Secret Debates of the Federal Convention of 1787 by Robert Yates.

This is established by having senators serve for six year overlapping terms.

The public has no ability to instantaneously change the

composition of the Senate, as they can in the House. Originally, until the 17th Amendment, senators were elected by state legislatures, not the public.

This touches on a key question concerning legislatures is how in

fact it is able to turn the preferences of the general public

into policy: should it be done quickly or slowly?

How close should the connection be between the general public and

the law?

This is also a way to ask: How capable is the general public of supporting good public policy?

Conflict between the House and Senate is common. They tend to

check each other. Each has to approve the bills passed by the

other in order for it to be presented to the President for a

signature.

Often they do not.

Legislatures on the national and state levels are dominated by two large political parties (Democrats and

Republicans) which organize each institution internally and help recruit

and run candidate for office.

Here’s a history of party control of Congress.

The party system, as we know from 2301, originally developed

within the United States Congress as a way to organize support or

opposition to Washington’s policies.

Control of the US Congress tends to be evenly split between the two

Parties. Texas tends to be a one party state. Until the late 1970s, its was solidly Democrat, since 1994 it

has been dominated by the Republican Party.

Parties tend to be more important in the US Congress then the Texas

Legislature. Party leaders in Congress tend to be more

powerful that the leaders of each chamber.

Legislatures also contain smaller institutions called committees.

These are where bills introduced to Congress are closely analyzed and

debated. The subject matter of committees is very limited. Check out the list from the US House and

Senate.

Much of the detailed work on legislation happens in committees.

Representatives want to be on those committees that allow them

to focus closely on the needs of constituents.

Two very popular committees with area representatives are the House Energy and Commerce Committee and the House Science, Space and

Technology Committee.

Constituent is the fancy name used to describe the people who are represented

by the member of Congress: “a person who authorizes another to act in his or her behalf, as a voter in a district represented

by an elected official.”

But the terms can also refer to those who provide electoral support for a member.

To find out who represents you, click here for Who Represents Me?

Each of these individuals – especially at the state and national

level – has a web site describing who they are and what they do.

You should take a few moments to look these people up. Note the

committees they are members of.

The US Congress is the third legislative institution in the United States. Prior to the ratification of

the Constitution, the United States was governed by the Second

Continental Congress from July 4, 176 to March 6, 1781 and by the Congress of the Confederation

until March 4, 1789.

The United States Congress and the Texas Legislature have met regularly since each respective

Constitution was ratified.

The first meeting of Congress happened on March 4, 1789. The

Congress met until March 3, 1791.

Many unresolved disputes from the Constitutional Convention continued

to be debated there. The early political parties formed in order to debate

these issues.

Every two year Congress is numbered. In January 2011 the U.S. Congress

convened for the 112th time since the ratification of Constitution.

So this Congress is called the 112th Congress.

See also 2010 Congressional Elections.

It is a professional legislature – this is to be the sole job of its members – that meets continuously and its members are paid a competitive

salary.

Here’s a link to a GIF file showing changes in Congressional control

between 1900 – 1948.

The Texas Legislature first met from February 13, 1846 to May 13,

1846.

It has met under five Constitutions since then.

In January 2011 the Texas Legislature convened for the 82nd

time since it became a state.

This legislature is called the 82nd Legislature.

(not very creative I know)

It is an amateur legislature – its members are expected to have a regular job – that meets part time and its members are paid a small

salary.

Legislatures exist on local levels as well, but they tend to be smaller,

non-partisan, and are often unpaid.

City Councils, the name most commonly given to municipal

legislatures, are usually unicameral and tend to be divided into at large

and single member districts.

The purpose of single member districts is to ensure

minority representation.

Example: The Houston City Council has been composed of 5 at large

members and 9 single district members.

It has recently been expanded due to population growth.

Area City Councils of note:

Alvin City CouncilManvel City Council

Pearland City CouncilHouston City Council

Many single purpose governments have elected boards to oversee the

operations of the administrative staff.

Alvin ISD BoardHouston ISD Board

ACC BoardHCC Board

Now for some history

In the concluding slides I want to trace the lineage of the US

Congress back in time and roughly explain why it was designed the way it was in the Constitution.

The Texas Legislature too.

From the Security Clause of the Magna Carta to the British

Parliament and the Congress under the Articles of Confederation

The United States Congress can trace its direct evolution to Magna Carta, where an assembly barons

forced King John to sign a document in 1215 not only placing limits on his powers, but allowing

for the barons to form an assembly to oversee the actions of the King.

Historical examples of legislative assemblies prior to this era are not common, but they did exist prior to the development of the British

Parliament.

Here are two:

Athenian AssemblyRoman Senate

Each provides an example of the pros and cons of assemblies.

The Athenian Assembly, which was composed of all Athenian citizens,

was an example of direct democracy.

But they approved the execution of Socrates and fell into anarchy thus allowing for the rise of the

Thirty Tyrants.

But the Roman Senate was a necessary check on the power of

the executive. Julius Caesar’s assassination was an attempt to

maintain the Roman Republic from Caesar’s attempts to turn it into an

empire under his sole rule.

In England prior to the Norman Invasion, monarchs would consult

with elders in order to both consult and gain support for his

proposals.

This was a precursor to advice and consent.

After the Norman Invasion, William I established the King’s Council

(the Curia Regis) as a substitute, but this was not a legislature as we would recognize it. The institution had no autonomous power. It was used by the King to ensure support

for his proposals.

It actually acted as a legislative and judicial institution as well as an advisory body for the executive.

This violates our understanding of the separation of powers.

Timeline results for the Curia Regis

The purpose was to enable to king to rule directly. But this is

concentrated power, which allows for abuse. An following the

Norman Invasion, kings were beginning to do so.

After the Norman Invasion, a strong monarchy evolved in Britain which replaced the feudal system.

An administrative state was developed which allowed the

monarch to effectively establish, implement and adjudicate the law.

Kings claimed the power to rule absolutely, and developed the

doctrine of the divine right of kings to support this absolute rule.

In reality, Kings could only rule effectively if they kept the nobility

and the clergy happy. If not, the barons could rally together to

thwart the will of the king. Effective monarchs knew how to keep the peace, bad ones could

not.

Here’s one who could: King Henry I

Here’s one who couldn’t: King John

In order to establish a solid relationship with the nobility and

the Church, Henry I (who ruled from 1100 – 1135) issued the

Charter of Liberties which define voluntary limits on his power.

A voluntary limit is not much of a limit because it can be revoked, which Henry would soon do. He

attempted to destroy all the existing copies of the Charter, but

one survived and it was held by the Archbishop of Canterbury.

When the nobility became upset with the arbitrary and abusive rule of King John they

organized under the guidance of the Archbishop at that time, Stephen Langton, who produced the existing copy of the Charter and used it as the basis for the drafting of the Magna Carta.

The document would establish limits on the powers of the monarch and reinforce the rights of the nobility –

and in some cases freemen. When we discuss the judiciary, we will note that many parts of Magna Carta

establish the principle of due process.

Here’s the major point: He was forced to sign the document by the

nobility.

That’s the difference between Magna Carta and the Charter of Liberties. If the

document is compelled, it can be enforced. The nobility would claim the right to

oversee this and future kings to see if they were following the agreement.

We will soon note that this is very similar to the current ability of

legislatures to oversee the actions of the executive.

Congressional oversight.

This is a check on the power of the monarch.

(at least in theory)

More properly it plants the seed that would grow into substantive

checks on the monarchy – and the executive in general.

John would refuse to honor the document after he signed it (with the backing of the Pope) and Civil War followed. The executive does

not like to be limited by the legislature.

Conflict between the two forces – which in a sense embody the legislative and executive functions – would

be ongoing. They obviously persist to this day.

The intent of the barons was not to take control of the country, or to

establish a democracy. They simply wanted to impose limits on the

arbitrary powers of the king. They wished the rule of law to be applied to the king as it did to them. The Magna

Carts was an attempt to do so.

By the way, some of what the barons were upset about – in addition to the nature of John’s

rule - was the increased efficiency of the administrative capacity of the monarchy in

general.

This was allowing the monarchy to become stronger as an institution. The Magna Carta can also be seen as inevitable

attempt to contain this increased power. As we will see soon enough, expanded executive power is an ongoing concern

throughout Anglo-American history.

The document contained a variety of clauses which pertained to the

rights of the nobility (and was largely limited to the nobility).

These would eventually provide a basis for the powers of the

legislature.

Many of these concerned the imposition of taxes – and a variety

of fees - without the consent of the nobility.

Clauses 3 and 7 limited the imposition of inheritance taxes.

Clauses 12 and 14 mandate that scutage – the ability to buy out of military service –

and other means of assessing “aid” cannot be imposed except on “common counsel

of our kingdom.”

Other had to be consulted prior to the imposition of a tax. This is very similar to consent. The right to tax belongs to the nobility (the taxed), or to whatever

institution represents them.

These powers would allow parliament, once it evolves, to

claim and eventually win, control of the budget. This is called

the power of the purse.

Despite the language in the Magna Carta, it would take centuries to obtain that power.

Other clauses were intended to limit the ability of the monarch to arbitrarily control military power.

For our purposes the most important part of the document is

the Security Clause.

(read the entire text here)

Magna Carta, Clause 61

The Security Clause

“… the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter …”

“This established a committee of 25 barons who could at any time meet and overrule the will of the King, through force by seizing his castles and possessions if needed. This was based on a medieval legal practice known as distraint, but it was the first time it had been applied to a monarch. In addition, the King was to take an oath of loyalty to the committee.”

This was the birth of a legislature with oversight authority over the

executive branch.

This clause would later be changed in the Provisions of Oxford, but it

laid the foundation for an assembly with authority over the

monarch.

The crown was finally forced to recognize the legitimacy of the

English Parliament.

Parliamentary strength grew when it was able to attain control over

the purse. Monarchs had to summon parliaments in order to

get revenue.

Factors still existed which placed limits on parliamentary power. Parliaments

were called and dissolved by the Monarch at their discretion. Often long periods of time might elapse

between Parliaments.

During these periods, the monarch could rule without limit.

But the fact that the king had to call Parliament in order to obtain revenue turned into the ability to

present grievances to the King. Parliaments brought grievances before the king and demanded concessions before they would

consider tax bills.

We will note that in the United States Constitution, the president has no authority over the summoning or

adjourning of Congress.

The mandate in our Constitution that Congress meets at least once

every year is to enhance its independence from the executive.

The actual powers of parliament took time to develop.

It would take centuries to secure these powers, but the process

begins at this point.

Here are links that help outline the evolution of the British Parliament.

Here is a full list of the Parliaments of England from 1236 – 1707. After 1707, it was called the Parliament of Great Britain, and after 1801 it was called the Parliament of the

United Kingdom.

Some additional links:

List of Speakers of the House of Commons of England

The House of Lords

The House of Commons

Remember this history is important for us because the form that the legislature would take in the constitution would be based

on this history.

Until the British Bill of Rights wrote out the powers of the different governing institutions, power in

England would fluctuate between the monarchy, the nobility and clergy, and shire and borough

representatives.

Here are a few critical periods in the development of the British

Parliament.

The purpose behind walking through this history is to

understand the slow, steady evolution of legislative power.

1265: The Great Council

This was the entity created in the Provisions of Oxford. The committee of 25 barons is enlarged in order to increase its strength. Members pulled from all over

Britain, every burgher and shire. The council had to approve taxes requested by the King, but grew to demand a redress of

grievances before it would do so.

1295: The Model Parliament

Called by Edward the First in 1295.The name was derived from parler, "to speak""what touches all, should be approved of all,

and it is also clear that common dangers should be met by measures agreed upon in common.“

The ability to discuss grievances in common was established. The monarch had control over who

sat in Parliament.

This is often considered to be the first parliament. It was composed

of members of the nobility and clergy. Membership was due to

one’s position in society.

It’s authority still rested on the consent of the monarch. In 1322,

the authority of Parliament was for the first time recognized not

simply by custom or royal charter, but by an authoritative statute, passed by Parliament itself. It

became an independent institution.

It was still unicameral at that time, but it would begin to split in two.

1341: The House of Commons

Develops in the 14th Century during the reign of Edward III. Less

powerful than the House of Lords. It acquires the powers to demand

an accounting of royal spending, to question military actions, and to

impeach the King’s ministers.

“Parliament clearly separated into two distinct chambers: the House of Commons (consisting of the shire and borough representatives) and the House of Lords (consisting of the senior clergy and the nobility). The authority of Parliament

continued to grow, and, during the early fifteenth century, both Houses exercised powers to an extent not seen before. The Lords were far

more powerful than the Commons because of the great influence of the aristocrats and prelates of the realm.” – House of Lords

“The House of Commons of the Kingdom of England evolved from an undivided parliament to serve as the voice of the tax-paying subjects of the counties and of the boroughs. Knights of the shire, elected from each county, were usually landowners, while the borough

members were often from the merchant classes. These members represented subjects of the Crown who were not Lords Temporal or Spiritual, who themselves sat in the House of Lords. The House of Commons gained its name because it represented communities” – House of

Commons

Note that the Commons was developed to allow for the tax paying public to participate in

government.

This helps place the concern with “taxation without representation”

in historical context.

Membership in the House of Commons was open to property owners with no noble lineage.

They were selected by communities whereas the

monarch summoned members of the House of Lords.

This is an important point, because as merchants become wealthier

over the course of British history, they would become more

powerful. The House of Commons would become the institutions that

would help them convert economic power into political

power.

This is an important point. As the middle class gained wealth, they

were able to increase the power of the House of Commons. It was the commons that would be principally responsible for reducing the power

of the monarchy.

Read up on the history here.

1376: The Good Parliament

Called by Edward the IIIForced reforms among the King’s counselors who were considered

to be corrupt.

1404: Unlearned Parliament

“the king refused to allow lawyers to stand as members, with "No Sheriff to

be returned, nor any apprentice or other person at law" due to the King

claiming that they were "troublesome", although more likely

simply because they were familiar with the law.”

The power of the nobility – and the House of Lords with it – is argued

to have been a consequence of the War of the Roses (1455 – 1485).

With their heavy casualties among the nobility, the wars are thought to have

continued the changes in feudal English society caused by the effects of the Black

Death, including a weakening of the feudal power of the nobles and a corresponding

strengthening of the merchant classes, and the growth of a strong, centralized

monarchy under the Tudors. – war of the roses.

1529: English Reformation Parliament

“passed and enabled the major pieces of legislation leading to the English Reformation” This marked

the transition of Britain from a Catholic to a Protestant (Anglican)

country.

It also put the state in charge of the official church. The monarch is

the official head of the Anglican church.

The most important changes to the relationship between Parliament

and the monarchy occurred during the reign of the Stuart Monarchs.

These are the four principle monarchs during this period.

James ICharles ICharles IIJames II

The Stuarts were strong supporters of the divine right of the king, and saw little legitimacy in Parliament. It was an inferior entity subject to

the monarch’s rule.

They also claimed the right to rule based on royal prerogative.

They were also Scottish, so were viewed with suspicion by the British.

And perhaps most critically, they either were or supported Catholicism,

and opposed some of the more “radical” Protestant sects developing –

especially the Puritans.

Background: Catholicism, had (has) a more rigidly authoritarian

structure and was seen as more conducive to absolutism than

Protestantism, which tended to be more congregational. An affiliation with the Catholic Church was seen

as supporting tyranny.

James I ruled from 1603 – 1625

Called by a critic: “the wisest fool in Christendom.”

He offered his own take on the power of the monarchy as

opposed to Parliament.

The True Law of Free Monarchies

“Kings were the authors and makers of the laws, and not the laws of the kings. In the Parliament (which is nothing else but the head court of the king and his vassals) the laws are but craved by his subjects and only made by him at their rogation and with their advice. For albeit the king make daily statutes and

ordinances, enjoining such pains thereto as he thinks meet, without any advice of Parliament or estates, yet it lies in the power of no Parliament to make any kind of law or statute without his scepter be to it, for giving

it the force of a law.” – James I source.

As a side note for now, he would also be responsible for issuing the charters sending a group of people across the

Atlantic and authorizing them to settle a colony. The goal was to find new

sources of revenue.

The town they settled would be called Jamestown.

James’ troubles with Parliament often involved money. The Stuarts

devised means of gathering revenue without the approval of

Parliament.

1614: Addled Parliament

“sat between 5 April and 7 June 1614. Its name alludes to its ineffectiveness: it

lasted no more than eight weeks and failed to resolve the conflict between the king,

who wished to raise money in the form of a 'Benevolence', a grant of £65,000 and

the House of Commons (who were resisting further taxation). It was dissolved

by the king.”

1625: Useless Parliament

The Useless Parliament was the first Parliament of England of the reign of King

Charles I, sitting only from June until August 1625. It gained its name because it transacted no significant business, making it 'useless' from the king's point of view.

Parliament adjourned to Oxford on 1 August, and was dissolved on 12 August,

having offended the king.

James I’s problems with Parliament were nothing compared to Charles I’s (1625-1649). His troubles would culminate in his execution and the

temporary suspension of the monarchy (as well as the House of

Lords) itself.

Background: From 1414 until 1625, it had been customary at the

beginning of each new monarch's reign for parliament to grant him or her the duties of tonnage and poundage for life. The parliament

of 1625, the first of Charles I's reign, had broken with tradition by

granting them for one year only.

A major turn to the negative happened in 1628 when Charles

was presented the Petition of Right which not only listed the king’s abuses, but argued that he was violating the “ancient rights and liberties” agreed to in the Magna

Carta.

The leading force behind the petition was Edward Coke, a leading legal

scholar whose writing on the common law would influence the colonists.

The Petition is argued to be, along with Magna Carta and the British Bill

of Rights, the core of the British Constitution.

In enacting the Petition, Parliament sought redress on the following points:

Taxation without Parliament's consentForced loans

Arbitrary arrestImprisonment contrary to Magna Carta

Arbitrary interference with property rightsLack of enforcement of habeas corpus

Forced billeting of troopsImposition of martial law

Exemption of officials from due process

We will later point out that these will be similar to complaints the

colonists would have with Britain in 150 years.

Charles responded by suspending Parliament and refusing to allow it to meet again for 11 years. He had unlimited control of government

during those years. This was called the Eleven Year's Tyranny (1629-

1640).

It set in motion a series of events which would culminate in the

execution of Charles 1st and the temporary abolition of the

monarchy during the monarchy.

Here is an overview of the rapid series of events that would follow.

Timeline

1640: The Short Parliament1640 – 1648: The Long Parliament.1642 – 1651: The English Civil Wars.1645-1660: The New Model Army1648: Pride’s Purge.1648 - 1653: The Rump Parliament.1649: The Execution of Charles the First.1649 – 1660: The Commonwealth of England.

Timeline

1651: The Battle of Worcester1653 – 1658: The Rule of Oliver Cromwell.1660: The Restoration of the Monarchy.1660 – 1685: Charles II rules. 1685 – 1688: James II rules. 1688: The Glorious Revolution.1689: The English Bill of Rights signed.

1640: The Short Parliament

Charles eventually had to call Parliament back in session to obtain money to pay for military conflicts, but Parliament wanted to air grievances prior to considering the

request. Charles refused to do so and dissolved Parliament after three weeks.

“The Long Parliament was characterised by the growing number of critics of the king who sat in it. The most prominent of these critics in the House of Commons

was John Pym. Tensions between the king and his parliament reached boiling point in January 1642 when

Charles entered the House of Commons and tried, unsuccessfully, to arrest Pym and four other members for their alleged treason. The five members had been

tipped off about this, and by the time Charles came into the chamber with a group of soldiers they had

disappeared. Charles was further humiliated when he asked the Speaker, William Lenthall, to give their

whereabouts, which Lenthall famously refused to do.”

The Long Parliament was called to deal with government funding following

the Bishops’ War, where Charles supported an “episcopalian system of church government for Scotland (with bishops),” over “the desire of much of

the polity of Scotland for a presbyterian system of governance

(without bishops).”

Again, Parliament wanted to deal with grievances prior to funding.

They abolished the Star Chamber, and investigated many members of

the King’s court, including the Queen.

We will discuss the Star Chamber in depth when we discuss the

Judiciary and the development of the concept of an independent

judiciary.

This led the King in 1642 to charge into Parliament to arrest the five

members he thought were leading this effort. They had left and

Speaker refused to tell him where they went.

We’ll point out later that we can trace the prohibition against

arresting members of Congress when they go to and from

Congress on this event. This is part of the Constitution.

The King left for Oxford along with members of Parliament who

supported him to form a separate parliament.

This led to the First English Civil War. Supporters of the King fought supporters of the Long Parliament.

Parliament establishes the New Model Army, composed primarily of Puritans, in 1645 to effectively fight the war. They would remain

in existence until 1660.

Charles would be captured and defeated, but would engineer a

come back. In the Second Civil War (1648 – 1649) royalists attempted to restore Charles, but were not

only defeated, but led opponents in Parliament to move to execute

Charles for high treason.

Charles still had supporters in Parliament, so these were

removed forcibly by Thomas Pride, in an event in 1649 called Pride’s

Purge. Parliament shrunk from 507 to around 200. “This marked the

end of the Long Parliament and the beginning of the Rump

Parliament.”

The remaining members would vote to try Charles on high treason and execute him. They would also

establish a council of state to replace the monarchy and

abolished the House of Lords.

On 19 March 1649, the House of Lords was abolished by an Act of Parliament, which

declared that "The Commons of England [find] by too long experience that the House of Lords

is useless and dangerous to the people of England."[7] The House of Lords did not assemble

again until the Convention Parliament met in 1660 and the monarchy was restored. It

returned to its former position as the more powerful chamber of Parliament—a position it

would occupy until the 19th century.

Several changes in government happened between 1649 and 1660 The entire period is referred to as

the Interregnum.

Britain went through a period where various proposals were

made about what the governing system should look like. What follows is a section from the

Wikipedia section on “Diggers.”

“Government through the King's Privy Council was replaced with a new body called the Council of State, which due to fundamental disagreements within

a weakened Parliament was dominated by the Army. Many people

were active in politics, suggesting alternative forms of government to

replace the old order. . .

. . . These ranged from Royalists, who wished to place King Charles II on the

throne; men like Oliver Cromwell, who wished to govern with a plutocratic

Parliament voted in by an electorate based on property, similar to that

which was enfranchised before the civil war . . .

. . . agitators called Levellers, influenced by the writings of John

Lilburne, who wanted parliamentary government based on an electorate of every male head of a household; Fifth

Monarchy Men, who advocated a theocracy; and the Diggers led by

Winstanley, who advocated a more radical solution.” Diggers - Wikipedia.

This era in English history can be divided into four periods.

1 - The first period of the Commonwealth of England from 1649 until 1653 2 - The Protectorate under Oliver Cromwell from 1653 to 1658 3 - The Protectorate under Richard Cromwell from 1658 to 1659 4 - The second period of the Commonwealth of England from 1659 until 1660

The Rump Parliament would exercise both executive and

legislative functions during the Commonwealth until 1653 when

Oliver Cromwell forcibly dissolved it backed by troops.

Like the Stuarts, Cromwell was frustrated by the ineffectiveness of

Parliament. The Commonwealth was replaced with a Protectorate, with Cromwell as Lord Protector. He effectively became dictator.

This is considered by historians to be a military coup. His power was never

based on popular support, only on the military. He died in 1658 and was replaced with his son Richard who

lacked his power.

The Protectorate would crumble and the monarchy would be restored.

Three things undermined the Protectorate: the "anxieties of the

army, the irresponsibility of the Parliament and the rashness of

Richard Cromwell"; what ultimately prevented the retention of the

Protectorate was the opposition of the "junior officers" and "many of the

common soldiers"

There was no check on the legislature. The point was taken that unfettered legislative power can be as tyrannical as monarchic power. All governing power must

be checked.

Government was also unstable and chaotic during this era. So much so

that Thomas Hobbes wrote Leviathan during this period.

“Hobbes wrote that chaos or civil war — situations identified with a

state of nature and the famous motto Bellum omnium contra

omnes ("the war of all against all") — could only be averted by strong

central government.”

Support emerged for restoring the monarchy so that there could be

more stability in society.

The Convention Parliament of 1660

Summoned the King – James II – back to the throne.

Oak Apple DayMay 29

The day celebrated by royalists to commemorate the restoration of

the monarchy. Some of the people responsible for the trial and execution of Charles were

punished.

Neat Trivia:

Three Commissioners, John Dixwell, Edward Whalley and William Goffe,

reunited in New Haven, Connecticut in 1661. All died natural deaths in the 1670s

and are commemorated by three intersecting major avenues in New Haven

(Dixwell Avenue, Whalley Avenue, and Goffe Street), and by place names in other

Connecticut towns.

But the restoration simply revived the conflict between the divine monarchy and the Parliament.

Charles II did not want to share power with Parliament and he

sought alternative ways of gaining revenue so he could become

absolute monarch of England.

“Following the English Restoration in 1660, King Charles II sought to streamline the administration of

these colonial territories, beginning a process of bringing a

number of the colonies under direct crown control.” – Dominion

of New England.

1661 – 1679: Cavalier Parliament

Dominated by Royalists. Passed legislation that enhanced

monarchic power.

Charles II was replaced with James II who became Catholic and whose

monarchy was not universally accepted as legitimate.

He also had a male heir – which terrified Parliament who thought this

would lead to a reestablishment of Catholicism in the country.

1685 – 1688: Loyal Parliament

Meet briefly during the monarchy of James II. The king influenced elections of many

members of the Commons in order to ensure support. But they began

questioning his efforts to enhance his control of a peacetime military and he was

driven from office in the Glorious Revolution .

James was driven from the crown – and England – in the Glorious

Revolution. Which created a vacancy in the monarchy which the

Parliament was able to fill.

Convention Parliament (1689)

The English Convention (1689) was an irregular assembly of the Parliament of England which

transferred the Crowns of England and Ireland from James II to William III. It differed from the

English Convention (1660) in that it did not unconditionally restore the rightful and lawful monarch, but chose to justify the deposing of that monarch in favour of another, and also

sought to introduce new laws and arrangements into the constitution.

These new arrangements were contained in the British Bill of

Rights, which was a type of constitution. It defined the relationship between the

legislature and the executive, and spelled out certain rights of the

people.

William and Mary had to sign the document in order to become

monarchs. Once signed, England began the transition to a

Parliamentary Democracy. The executive power would be

contained. No more arbitrary rule.

The document was heavily influenced by the previous 80 years history with the Stuarts.

The manner in which the relationship between the three

governing institutions was institutionalized in the English Bill of Rights would influence how this

would be done in the U.S. Constitution.

Some highlights.

The document demanded that William and Mary acknowledge

that certain actions of the previous rulers were illegal and were not to

be repeated.

The English Bill of RightsThat the pretended power of suspending the laws or the

execution of laws by regal authority without consent of Parliament is illegal;

That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;

That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;

That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;

The English Bill of Rights

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;

That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

Meanwhile across the Atlantic:

By the time the British Bill of Rights was signed, the colonies had been able to govern themselves for 80

years.

They had grown used to self rule.

The revolution also led to the collapse of the Dominion of New

England and the overthrow of Maryland's government.

Once Britain’s internal issues were settled, they could focus on external issues. These would

include disputes with the French and eventual attempts to control

the North American Colonies.

Colonial/US Congressional Timeline

1600s: Colonial Legislatures Established1754: The Albany Congress

1765: The Stamp Act Congress1774: The First Continental Congress

1775: The Second Continental Congress1776: The Declaration of Independence

1781 – 1789: The Articles of Confederation

The London Company (also called the Charter of the Virginia Company of London) was an

English joint stock company established by royal charter by James I of England on April 10, 1606

with the purpose of establishing colonial settlements in North America.

The first two charters issued for the colonies were corporate

charters issued to the London and Plymouth Companies

Competing land claims led many corporate colonies to change to

royal charters.

Colonial Government in the Thirteen Colonies.

On July 30, 1619, the House of Burgesses, the first legislature of elected

representatives in America, met in the Jamestown Church. Their first law was to

set a minimum price for the sale of tobacco and set forth plans for the

creation of the first ironworks of the colony. This legislative group was the predecessor of the modern Virginia

General Assembly.

The Virginia House of Burgess

. . . the first assembly of elected representatives of English colonists in North America. The House was established by the Virginia Company, who

created the body as part of an effort to encourage English craftsmen to settle in North

America. Its first meeting was held in Jamestown, Virginia, on July 30, 1619.

Here is the membership of the original council.

“The Assemblies had a variety of titles, such as: House of Delegates, House of Burgesses, or Assembly of Freemen. They

had several features in common. Members were elected by the propertied citizens of the towns or counties annually, which

usually meant for a single, brief session, although the council or governor could and sometimes did call for a special session. Suffrage was restricted to free white men only, usually with property ownership restrictions. Since land ownership was

widespread, most white men could vote.Taxes and government budgets originated in the Assembly. The

budget was also connected with the raising and equipping of the militia. As the American Revolution grew nearer, this

contributed to the conflict between the assembly and the governor.”

Local government was conducted through town meetings. The virtue

of self rule is argued to have evolved primarily from these

institutions.

From 1607 until the mid 1760s, the colonies were generally free to

govern themselves. Aside from the internal disputes during the civil wars, the British had to compete

with the French for control of North America.

- Emergence of Colonial Government

“Generally the term colonial legislature means a governing body of representatives

selected to lead one of the original thirteen colonies. Sometimes they were selected by the residents of the colony as with the House of Burgesses in Virginia, other times they were selected by the

British crown as in Georgia. They made laws for the colony, settled disputes, and

organized how the economics of the colony were to be organized.”

These various colonial legislatures impacted the United States Constitution in the following ways:

1. They established the principle of having a WRITTEN constitution.

2. They offered valuable experience for those men that would later participate in the Constitutional Convention held in

Philadelphia in 1787.3. They established the principle that the leaders of a colony

were responsible to the PEOPLE of the colony.4. They established the precedent of having a Bill of Rights

added to their colonial constitutions thus giving the anti-federalists the idea to add a Bill of Rights to the Constitution of

the United States.5. They established the precedent of having rotating leadership

in which governors and state legislatures were re-elected (or voted out) every few years--this would also be incorporated in

our federal constitution.

Generally each legislature acted on its own an had its own unique relationship with the British

government. They were jealous of their powers.

There was an early attempt to coordinate activities between the

colonies however.

The attempt was driven by the emerging conflict with France that would culminate in the French and

Indian Wars (1754 – 1763). Until the end of that conflict, Britain’s control of the North American

colonies was tenuous.

1754: The Albany Congress

A meeting of seven colonies to discuss issues of mutual concern

and consider forming a confederation.

English officials proposed establishing a "union between ye Royal,

Proprietary & Charter Governments,“ in order to handle the strains war

would place on the colonies. Under the Albany Plan “each colonial

legislature would elect delegates to an American continental assembly

presided over by a royal governor.” – Constitution.org.

The colonies would have legislative power and the crown would have

executive power.

The plan would be rejected by the colonies and not sent to the crown for consideration. The crown did not like the idea that the colonies

might join forces, the colonies distrusted each other and could not agree on a form of

government acceptable to them all. They were concerned about losing autonomy. The design

would influence the Congress created under the Articles of Confederation.

In many ways, this conflict still exists to day over the proper role of the state and national

government.

Once the conflict was settled Britain acquired new lands to the west of the

existing colonies. King George III passed the Royal Proclamation Act of 1763 to

determine how best to govern the new territory, which some colonies claimed for

themselves. New officers, representing Britain, would be sent to govern the new

lands. Conflict, predictably, resulted.

The new land that Britain took from France provided

opportunities for the British to send over official and troops.

As with previous historical episodes where the need for funds

to pay off military debt drove conflict between the crown and

Parliament, the need to pay off the debt from the French and Indian Wars drove the conflict between

the British Parliament and the colonists.

It provided a common event for all colonies to respond to and

galvanize around.

The institutional response was the establishment of a series of

Congresses.

Three noteworthy Congresses composed of delegates from each

colony:

The Stamp Act Congress The First Continental Congress

The Second Continental Congress

Note that these were not legislative institutions (the word

Congress does not have the same meaning it has currently). They

were assemblies where representatives can meet and

discuss common issues.

Within two years of the end of the French and Indian Wars, the Stamp Act was

passed.

The purpose of the tax was to help pay for troops stationed in North America after

the British victory in the Seven Years' War. The British government felt that the

colonies were the primary beneficiaries of this military presence, and should pay at

least a portion of the expense.

The imposition of the tax violated the sense of self government the colonist had

grown used to. As a consequence The Stamp Act Congress was called.

Representatives of nine colonies met to discuss the Stamp Act and to coordinate a

response to it. They wrote the of Declaration of Rights and Grievances and

sent it to Parliament.

The Congress made the following claims (here’s a link to the document):

- Only the colonial assemblies had a right to tax the colonies. (no taxation without representation).

- Trial by jury was a right, and the use of Admiralty Courts was abusive.

- Colonists possessed all the Rights of Englishmen.

- Without voting rights, Parliament could not represent the colonists.

Notice the similarity between their grievances and those made under

the Petition of Right.

In response – and because they could recognize a threat - The

British began suspending colonial legislatures and developing ways

to work around them.

This would be a grievance listed in the Declaration of Independence.

Colonists began regularly meeting – sometimes illegally. Committees of Correspondence

effectively established shadow governments that would coordinate the activities of colonies

leading up to the war.

Committees of Correspondence.

The Committee of Correspondence:Moving Towards Independence

1774: The First Continental Congress

Met in response to the Coercive Acts, many issued in response to

the Boston Tea Party.

1775: The Second Continental Congress

Produced the Declaration of Independence, managed the

Revolutionary War, and served as de facto government of the U.S.

until the adoption of the Articles of Confederation in 1781.

1776: The Declaration of Independence

Argued that King George was attempting to establish tyrannical control over the colonies and was therefore unfit to be the ruler of a

free people.

A principle argument made in the document was that the king of

England was attempting to usurp colonial legislative power, in addition

to colonial executive and judicial power.

This would create a tyranny.

A variety of grievances were listed to prove the accusation of

usurpation. Most focus on efforts of the king to limit or control

colonial legislative power. What follows is a list of the specific

grievances made in the document.

The Legislative Grievances in the Declaration of Independence

• He has refused his assent to laws, the most wholesome and necessary for the public good.

• He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and, when so suspended, he has utterly neglected to attend to them.

• He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature, a right inestimable to them, and formidable to tyrants only.

• He has called together legislative bodies at places unusual uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures.

The Legislative Grievances in the Declaration of Independence

• He has dissolved representative houses repeatedly, for opposing, with manly firmness, his invasions on the rights of the people.

• He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the state remaining, in the mean time, exposed to all the dangers of invasions from without and convulsions within.

• He has endeavored to prevent the population of these states; for that purpose obstructing the laws for naturalization of foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new appropriations of lands.

• He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers.

The Legislative Grievances in the Declaration of Independence

• He has combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws, giving his assent to their acts of pretended legislation:

• For imposing taxes on us without our consent; • For abolishing the free system of English laws in a neighboring province,

establishing therein an arbitrary government, and enlarging its boundaries, so as to render it at once an example and fit instrument for introducing the same absolute rule into these colonies;

• For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments;

• For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

Collectively these prove the importance of independent

legislatures and self government. They also provide hints about what

types of design features a legislature should have.

Fear of national executive and judicial power explains why the Articles of Confederation only created a national legislature,

called the Continental Congress, with delegates closely connected

to the states.

Until the Ratification of the Articles of Confederation the Second

Continental Congress served as the Congress of the United States.

“The Congress had no authority to levy taxes, and was required to request money, supplies, and

troops from the states to support the war effort. Individual states

frequently ignored these requests.”

It had no direct connection with the general population – which was the

course of sovereign authority. This was also true for the Congress under the

Articles of Confederation. We will notice in the next section that the

House of Representative is designed to have a direct connection with the

general population, and that this is the source of the nation’s legitimacy.

The Articles of Confederation.

Congress under the Articles of Confederation.

The following parts of the Articles of Confederation outline the form

of the legislature.

The Continental Congress• Article V. For the most convenient management of the general

interests of the United States, delegates shall be annually appointed in such manner as the legislatures of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year.

• No State shall be represented in Congress by less than two, nor more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or another for his benefit, receives any salary, fees or emolument of any kind.

The Continental Congress• Each State shall maintain its own delegates in a

meeting of the States, and while they act as members of the committee of the States.

• In determining questions in the United States in Congress assembled, each State shall have one vote.

• Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress, and the members of Congress shall be protected in their persons from arrests or imprisonments, during the time of their going to and from, and attendance on Congress, except for treason, felony, or breach of the peace.

Key design features within this document weaken the legislature.

One year termsDelegates serve as teams

Delegates can be recalled and replaced at any time.

Note that some of the language is similar to what is in the British Bill

of Rights.

The Federalists complained about the inability of the governing

system to achieve national goals and sought to create a stronger legislature independent of the

states.

Anti-Federalists liked the fact that government was directly tied into

the needs of the electorate and did not see a lack of coordination

between the states as a significant problem.

Constitutional Convention would provide the forum where these

disputes could be addressed and ironed out.

This will be covered in the next section.

Study Guide

- What is a legislature and what functions do they serve?- What roles have legislatures played in the establishment of the rule of law? How have they helped restrict executive power?- What claims were made in the Declaration of Independence that the British Monarch was attempting to usurp colonial legislative power? - Know what role key documents (especially the Magna Carta, the Petition of Right, and the British Bill of Rights) in restricting monarchic power? How successful were these documents? Why or why not?

- Be familiar with the conflicts associated with King John and the Stuart Monarchs. - Be familiar with the design of Congress under the Articles of Confederation.- Be able to describe basic features of the US and Texas legislative branches.- Also be familiar with the terminology used to describe various aspects of the legislature: bicameralism, constituent, etc…- What parts of the British Bill or Rights influenced the US Congress?

- What are the basic differences between the House and the Senate? - What are the basic differences between the US Congress and the Texas Legislature?