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We have seen that the colonial deputies did not at first constitute a separate body, but sat in the same assembly with the governor and council. The next modification of the colonial government was due to the introduction of the bicameral system, or the separation of the deputies and magistrates into two co-ordinate bodies. The mere mention of the bicameral system suggests to nearly every mind the division between the English House of Lords and House of Commons; and it has also suggested to many historians the theory that the bicameral system in America was an imitation or reproduction of the bicameral system of England. If it could be shown that this system was established in the colonies by an act of the English crown, or if it could be shown that the English system was in the minds of the colonists when it was established, or if it could be shown that there were no antecedent conditions in the form of the colonial assembly which necessitated or at least led to its division into two branches, there might be afforded some proof of its foreign importation. The mere resemblances which may be traced between two political institutions may afford a presumption, but no positive proof of the derivation of the one from the other. Professor Freeman has shown the danger of inferring imitation from likeness, and has illustrated how similar institutions often grow out of similar circumstances or common instincts.* If it can be shown that the bicameral system in America was due to causes which were peculiar to the colonies themselves, and was the natural development of the special circumstances in which they were placed, and that its constitutional form was distinctly its own, we have no right to say that it was the result of imitation. As a matter-of-fact we find that the separation of the deputies from the magistrates in the colonial assemblies resulted from conditions already existing in these assemblies; and also that the process of their separation passed through inchoate stages which can not * "Comparative Politics," lect. I.
be traced in the original separation of the Lords and Commons.
The bicameral system in America had its origin in Massachusetts. It is here that we find the specific mode and the successive steps in which it took its rise. We have already seen that directly after the founding of the Massachusetts colony the freemen unwisely conferred upon the magistrates, that is, the Court of Assistants, the entire control of the colony; and that this arrangement remained in force for about three years, when the freemen reasserted their right to a share in the government. During this brief period the magistrates had come to regard themselves as the chief governing power in the colony. Even after the deputies of the towns became associated with them in the General Court the relative powers of the deputies and magistrates were for some time undetermined. In the ordinary transaction of business there was no clashing of interests. But as early as 1634 an antagonism arose between them, when certain people of Newtown asked for permission to remove to Connecticut, the majority of deputies being in favor of granting the request, and the majority of magistrates being opposed to such a removal.* In consequence of frequent bickerings between the two sections, growing out of the undefined character of their relative powers, a compromise was temporarily effected by an act of 1636, which contained the following provisions: "Whereas it may fall out that in some of these General Courts to be holden by the magistrates and deputies, there may arise some difference of judgment in doubtful cases, it is therefore ordered, that no law, order or sentence shall pass as an act of the court without the consent of the greater part of the magistrates on the one part and the greater part of the deputies on the other part; and for want of such accord the cause or order shall be suspended; and if either party think it so material, then there shall be forthwith a committee chosen the one half by the * Barry, I., 273.
magistrates and the other half by the deputies, and the committee so chosen to elect an umpire, who together shall have power to hear and determine the cause in question. This was a recognition of the co-ordinate powers of the deputies and the magistrates, while they were both members of the same assembly.
The cleavage which thus began to be developed between the two parts of the General Court was not completed until some years afterward. The continued opposition of the two branches led finally to the law of 1644. At this time the deputies moved that the two orders should sit apart, the magistrates by themselves and the deputies by themselves, and that what one should agree upon should be sent to the other, and if both should agree the act should pass. This motion after considerable controversy and some delay was finally adopted, and the two bodies from that time sat as separate and co-ordinate branches of the general court. † Under the peculiar circumstances and through the successive steps thus described the bicameral system in America had its origin. How far it was the result of foreign influences and how far it was modeled after a foreign type it seems hardly necessary to discuss. Notwithstanding the fact that the "laudable example of other States" is referred to in the law of 1644 as a sort of justification of the final step, it would be difficult to imagine how any institution could be regarded as more indigenous to the soil or more completely shaped by the peculiar circumstances of time and place than was this system as it took its rise in Massachusetts.
In Connecticut the bicameral system had its origin, not from the jealousy between the two parts of the assembly, but from the great confidence which the deputies reposed in the magistrates. In 1678 a law was passed by the General Court of Connecticut constituting the governor, the deputygovernor and the assistants a general council to act for the
Massachusetts Records, I., 169, 170.
Hutchinson I., 143: Massachusetts Records, II., 58.
whole body during the recess of the court. "This was," as Professor Johnston says, "the prelude to the inevitable introduction of the bicameral system.'* From 1696 it became customary for the acts of the governor and council to be submitted to the whole court for approval.† In May, 1698, the General Court authorized the governor and council to prepare bills which, being approved by the council, should be submitted for the approval of the General Court. ‡ Finally, in October, 1698, a law was passed conferring upon the council the name of " upper house," and upon the deputies the name of "lower house," with the provision that all acts should have the approval of both before they were recorded as laws of the colony.§
In the proprietary and royal colonies the division of the two houses had a somewhat different origin. It was evidently the result of two concurrent causes: first, the original custom of the colony, whereby the governor and the council, representing the proprietor or king, were required to submit their proposals to the assembly of freemen; and, second, the successful demands made by the freemen to initiate legislation, which was submitted to the governor and council for approval. For example, in New Hampshire, by the royal commission of 1679, the president of the colony was authorized to prepare and recommend laws, which being approved by the deputies, should also receive the approval of the council. This was supplemented by a law of 1680 which provided that no ordinance should be imposed upon the people but such as was made by the assembly and approved by the president and council. This gave the deputies and the council co-ordinate powers in legislation, on account of which they came to be regarded as two branches of a common legislature. From similar causes all the colonial assemblies
* Johnston, "Connecticut," p. 299.
+ Connecticut Records, 1689-1706, 156, 202, 205, 222 251.
Ibid, 267, 282.
Belknap, I., 171, 179.
except those of Pennsylvania and Georgia, became split into two branches, or houses. As a general rule the division grew out of the distinction already existing in the assemblies between the magistrates and the deputies. The magistrates had acquired an important and distinct place in the government from the powers which they came to exercise during the recess of the General Court, or from the fact that they were separately appointed by the king or proprietor, and thus represented interests distinct from those of the deputies. Their efficient co-operation with the deputies in the harmonious working of the government seemed to require their distinct approval of all public acts. The distinction between the magistrates and the deputies, as two branches of the government, preceded their division as two houses of one legislature. As a result of the growth of the bicameral system the colonial government, speaking generally, became differentiated into the following organs: (1) a governor, or president (either elected by the people or appointed by the king or proprietor), who acted as the chief magistrate of the colony, and whose place was in case of disability usually filled by a deputy-governor, or vice-president; (2) the council, elected or appointed in the same manner as the governor, which assisted the governor in his administrative duties, and which retained certain of its previous judicial powers, and which also acted as the upper house of the legislature; (3) the deputies, who were chosen by the towns and who formed the lower house of the legislature, and who also in certain cases constituted a tribunal of last resort; and (4) in the republican colonies, the court of elections, at which all the freemen, either in person or by proxy, presented their votes for the elective officers. This frame of government was, in its essential features, common to all the colonies, except Pennsylvania and Georgia, each of which remained through all the colonial period with a single house.
In regard to the electoral franchise, it may be said that the tendency was everywhere to restrict the right of voting.