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ARTICLE II.-AMERICAN LEGISLATION.*
LEGISLATION is a comprehensive and practical subject. It has to do with the character and the general welfare of the great political community, and is, therefore, it is believed, worthy of the special attention of educated men. No class in society is too high or too low, too cultivated or too rude, to be beyond its reach ; none so isolated or independent, as to be exempt from its influence and power. It creates and it exhibits the character of a community. It forms the habits of society, advances or retards the material interests of all its members, nor is it without its control over public morals, as well as intellectual improvement. There are few subjects with which it may not deal, and fewer still upon which it does not leave its impress. Nor does its consideration regard only the past. Legislation is not a finished work. Long as human government may last, it will continue to affect human happiness, and to associate itself with physical, moral, and intellectual development.
Legislation is itself a science, sadly unstudied, it is true, but still a practical science, behind no other in its capabilities to promote human happiness. If antiquity can make it venerable, it is old as the human race; if names can give it respectability, it has commanded the attention of the ablest minds in all civilized nations, and if variety can make it interesting, it is multiform as are the creations of human fancy. In a land where law has done so much for the promotion of mental cultivation, it is but a fitting return that educated men should contribute the results of their study to legal improvement.
But the legislation which it is our present design to consider, is of comparatively modern origin. It is only within a few hundred years that the written law of any nation has emanated
* The substance of this Article was delivered as an Oration before the Phi Beta Kappa Society of Yale College, at its last Anniversary, July 27th, 1859.
from those whose action it was designed to control. In the earlier history of the world, the right to make laws, with very rare exceptions, was vested in the same person whose duty it was to execute them, or in a select class, above the common ranks of the people. The republics of Greece had, it is true, something like popular legislation, but those republics were but cities. The districts governed by them were appendages rather than constituents of the state. The power was in the citizens of the town, and even that was little more than a right to accept or refuse ordinances proposed for their adoption. Such, also, was the Roman constitution at the only periods of its history when the legislative can be said to have been severed from the executive power. The “plebiscita” were propositions of the executive ratified by a popular assembly, an assembly convened in the Campus Martius, in no sense representing the cities and provinces over which its action was to have the authority of law.
Even to this day, in most countries, the executive is the sole legislator. His decrees constitute the only written law of his subjects. The theory of such a government is, of course, a theory of force, or of divine right. It does not assume the consent of the governed. Such legislation, however, is not without its advantages. Being the work of a single mind, it might be expected that it would manifest greater unity of purpose and freedom from whatever is complicated and experimental. What might thus be expected, we apprehend, finds its realization in the history of those nations where the statute laws have been made by the person who has in charge their execution. But it might also be inferred that such laws would not be well adapted to the social convenience and common necessities of the people, and the inference is undoubtedly found to be in accordance with observation and experience. Making all due allowance for the common propensity to magnity that which is our own, it can hardly be denied that that people are best governed who make their own laws, under suitable restraints against licentiousness; that they enjoy higher facilities for general social development, and better protection to all their personal and relative rights, while, at the same time, there is an absence of that sense of constraint, which, in despotic governments, is onerous, and which, to a people with a temperament and education like ours, would be unendurable. American legislation is thoroughly popular, representative indeed, yet more expressive of the popular will than any other which the world has ever witnessed.
Its forms are not original with us. They came from the mother country. Before the revolution there were legislative assemblies in most of the provinces, closely resembling each other, and all miniature likenesses of the British Parliament. They were composed of two distinct bodies, the separate assent of each being necessary to the enactment of any law. When a successful struggle had finally separated us from the mother country, and it became necessary to frame institutions suited to our altered circumstances, very little change was mnade in the machinery of the law-making power. Our fathers did not cease to be English, because they resisted English oppression. They loved liberty more than country, but they were not indifferent to the merits of the British constitution. Popular deliberation and assent were, in their view, indispensable to all wise legislation. But they were not insensible to the attendant dangers. They knew that popular impulse was unreasoning, that it was liable to yield to excitement, or to the seductions of present apparent expediency. With large comprehension they foresaw the possible evils of hasty and improvident legislation, and they felt that, with the divided responsibility inseparable from it, there was danger to be apprehended. In their judgment nothing deserved to be enacted as law until it had received careful and repeated consideration. Whoever has studied the history of our national and early state constitutions must have been impressed with the solicitude which their framers felt to devise suitable checks against the anticipated licentiousness of popular legislation. It was one of the most difficult problems in the construction of our new forms of government. More than one device was adopted, but, if we may judge from an experience of seventy years, not one too many. The framers had seen that the existence of two honses, each acting independently of the other, had proved a
check upon inconsiderate action, and they could devise no better form for the future than that which was furnished to their hands in the organization of the British Parliament. They were aware, indeed, that the existence of two separate bodies in one legislature might sometimes prevent any action, but they thought, and thought wisely, what is now often forgotten, that too much legislation is a greater evil than none,—that it is even better to “bear those ills we have, than fly to others that we know not of.”
It is true there was no order of nobility in the land, and the prejudices which, if not engendered, were certainly deepened by the revolutionary strife, rendered the creation of such an order impossible. Nor was there any material out of which to construct it. There was no individual wealth to sustain such a class in the community. The military distinctions, which had grown out of the necessary maintenance of the army, were too unequally distributed. Besides, the successful commanders were citizen soldiers, not bred to arms, but neighbors and companions of those who had served under them in the ranks. Even in the country from which our people came, with few exceptions, title had not been obtained by military prowess. But the division of the legislature into two distinct bodies was too important not to be preserved. To accomplish it the plan was adopted of requiring the upper house to be chosen by a different constituency, generally larger, and providing that its members should hold office for a longer period. In some of the states a higher property qualification was also demanded. The two houses in England are a necessity resulting from the existence of an order of nobility. The two houses in American legislatures are the offspring of no such necessity, but of an apprehension in the framers of the government that uncurbed popular legislation would prove unsafe. They threw around the legislatures other restraints. They preserved, in a qualified degree, the prerogative residing in the British crown, to arrest even the joint action of both houses, conferring upon the executive a preventive, though not a legislative authority. They did more. By written constitutions they restricted the general legislative power of the
community, when acting by their representatives, and prohibited any action upon some subjects, and particular action upon others. In this respect American legislation is unlike that of the mother country. There never has been a written organic law which restrained the plenary action of the British Parliament. There are, indeed, old statutes and long standing usages, which, by common consent, have come to be regarded as constitutional, but the limits of legislative action are much more strictly defined in this country than they are in England. With these slight differences, the forms of American legislation are as old as constitutional government. Whatever peculiarities it exhibits are due, therefore, to some other causes than its singularity of form.
It is obvious, however, from the mode in which the upper houses in our legislatures are constituted, that all cannot have been accomplished that the framers of the constitutions hoped to secure. They devised a palliative, not a protection. Having in part, if not wholly, the same constituency, both houses must be the representatives of the same spirit. Almost alike dependent upon the same popular breath, they are found to yield alike to popular impulse, and often to legislate hastily and unwisely. Our legislation is more the work of the people than is that of England; our statutory enactments a more direct reflex of the current popular sentiment. If it be trne, as was said of England by Richardson, in 1668, “that the law is nothing but the history how our ancestors have managed propriety in all ages,” American legislation must preëmiuently be an exponent of American feeling and American impulse. Whatever tends to make an impression upon the common mind,-whatever contributes to direct or to characterize social conduct,-must here, more than elsewhere, find expression in the written law.
If, now, the inquiry be made what particular influences are most potent in giving direction to legislation-in presenting the objects sought to be accomplished by it-in restraining its excesses--and in giving peculiarity to its action, we answer first, and preëminently, the power of common usage or custom. In every civil community of long standing, continued usage is