GOVT 2305
The Legislature
Definition 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 Making
2 - Representation
3 – Checking the Executive
and Judicial Branches
In our federal system, legislatures
exist on every level of government.
U.S. Congress
State Legislatures
City Councils
Local 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
Legislature.
(not very creative I know)
nd
82
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 Council
Manvel City Council
Pearland City Council
Houston City Council
Many single purpose governments
have elected boards to oversee the
operations of the administrative
staff.
Alvin ISD Board
Houston ISD Board
ACC Board
HCC 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 Assembly
Roman 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
th
14
Develops in the
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 III
Forced 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 I
Charles I
Charles II
James 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 consent
Forced loans
Arbitrary arrest
Imprisonment contrary to Magna Carta
Arbitrary interference with property rights
Lack of enforcement of habeas corpus
Forced billeting of troops
Imposition 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 (16291640).
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 Parliament
1640 – 1648: The Long Parliament.
1642 – 1651: The English Civil Wars.
1645-1660: The New Model Army
1648: 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 Worcester
1653 – 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 Day
May 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 Rights
That 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 Established
1754: The Albany Congress
1765: The Stamp Act Congress
1774: The First Continental Congress
1775: The Second Continental Congress
1776: 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 antifederalists 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 terms
Delegates 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?