Origin and development of the legislative organs

Ancient Legislative Organs. Representative legislative assemblies as we know them today are of comparatively recent origin. Montesquieu observed that the ancients had no notion of a legislative assembly composed of representatives of the people. In the states of antiquity the legislative power was not delegated to small select bodies of representatives but was exercised by kings or by the people themselves in primary assemblies.

The historian Freeman, in speaking of the governments of ancient Greece, said that:

“the ancient world trampled on the very verge of representative government without actually crossing the boundary”

that the assembly which acted upon proposed laws and gave them their sanction was composed of the freemen themselves meeting in their personal capacity, and that representation in the adoption and passage of laws was unknown.

Origin of the Representative System in England :

The beginnings of the modern representative systems are found in the folk-moots of the early Teutons of Germany. These were assemblies of the natural leaders of the tribe, who determined the more important questions of common interest to the tribe. The Witenagemot of early English history was the assembly out of which in the course of time the first representative legislature known to history the “mother of parliaments” was evolved.

Not a representative body at first at least not in the modern sense it came in time, under another name, to contain a certain number of members who possessed the true representative character. At first chosen probably by the sheriffs of the counties, they came eventually to be elected by the freeholders.

Under Simon de Montfort in the thirteenth century representatives from the boroughs were added, and finally, by the end of the century, the assembly had come to possess all the elements which enter into the constitution of the British parliament today.

The clerical element also was represented, so that the Parliament was indeed the assembly of the representatives of the three estates of the realm the nobility, the commons, and the clergy. Early in the fourteenth century the division into two houses was effected, and the process of evolution was complete.

On the Continent:

On the continent of Europe the development of representative institutions came later, was much slower of growth, proceeded with less continuity and upon somewhat different lines. In-the government of some continental states of the Middle Ages the principle of representation played some part, but it was crude and imperfect.

It was representation of the nobility, or of the trade guilds, or of other classes or organizations, rather than of the people. In the Cortes of Castile and of Aragon in the twelfth century we have a legislative assembly containing, among others, representatives of the cities. It was, in fact, the growth of cities during the Middle Ages that gave a powerful impetus to the development of the representative principle by the demand which they made for representation in the national assemblies.

In France the beginnings of the representative system are found in the meeting of deputies of the three estates-the nobility, the clergy, and the townspeople in a general parliament for the first time in 1302. At first summoned by the king for advice and information, the states-general soon established the Principle that. no taxes could be levied without their assent.

Meetings of the states-general of France took place at irregular intervals for several hundred years, after which the practice of summoning them ceased until the Revolution. The Revolution abolished the system of representation by estates and established a system of national representation. In Germany, the system of representation by estates grew up in the thirteenth and fourteenth centuries along somewhat the same lines as in France.

Characteristics of Early Representative Systems :

It was characteristic of the system in the Middle Ages that it was representation of special classes or interests such as the nobility, the clergy, the towns people, etc, rather than representation of the people as a whole. The organization of society in the Middle Ages, in fact, consisted largely of clearly differentiated social groups and classes, and it was a part of the political science of the time to allow each class distinct representation as such and the idea survives to-day in the constitution of some-second chambers, which represent to some extent the privileged or conservative elements in monarchical states.

In the medieval system the church was also represented equally with the nobility, the cities, and the country. In practically all countries the church as such has lost its representation, though the idea still survives in the constitutions of a number of European states which allow certain high ecclesiastical functionaries seats as of right in the national parliament.

The Medieval Deputy :

For a long time the deputies of each state were separately summoned and often sat in different chambers and voted separately. Thus it came about that in the place of single or double-chambered assemblies there were sometimes three chambers and even four. The national parliament of Sweden, until 1866, consisted of four chambers, representing the nobility, the clergy, the bourgeois class, and the peasant class. Under the medieval system the deputy received a commission from his constituency he often bore instructions as to how he should vote, and he was obliged to render an account of the manner in which he exercised his mandate, which unlike the mandate of a modern representative, was what the French Call a mandat imperatif.

Usually he had only a specific power of attorney to remedy certain grievances and only rarely a general power of legislation. Nowhere outside of England indeed, did the deputies chosen by the estates become representatives of the country at large with general powers of legislation.

As Lord Brougham pointed out, the ancient and medieval representative was a delegate appointed to meet with other deletes to declare the will of the community, but not to consult for the good of the whole. He was like an ambassador sent to treat with ambassadors sent by other states. He was not a representative sent by one portion of the community to consult with the representatives of other portions of the same community and to agree upon the measures best adapted for securing the interests of the whole. On the contrary, he was an agent commissioned to watch over the separate, independent, and possibly conflicting interests of his principal. In no other sense had the delegate a truly representative character.

It was not until the end of the eighteenth century that the estates system on the continent of Europe gave way to a truly national system of representation and, indeed, in some instances the ,old system survived until late in the nineteenth century. The transformation was fairly complete in England by the middle of the sixteenth century, but did not come in France until the Revolution, when the states general declared themselves to be the representatives of the nation.

Role of Early Legislatures :

For a long time the legislature did not possess the plenitude of lawmaking power. Even in England until modern times it did little more than receive petitions, consider grievances, and make its wishes known to the crown, which was the legal repository of the legislative power. It expressed its views in the form of petitions addressed to the king, by whom, if they were granted, they were formulated in “statutes”  which he promulgated, Later on the parliament adopted the practice of itself formulating the statute and of sending it to the king, not as a petition, but as an act, for his assent.

Down until the Restoration the king in council, acting independently of parliament, exercised a large power of legislation under the form of ordinances. It was not until the Revolution of 1688 that parliament became in full measure the legislative organ of the country. A somewhat similar development took place on the Continent. Prior to 1918 it was the legal theory in Prussia that the king was the repository of the legislative power and that the role of the parliament was the negative one, of merely giving its assent to what the king willed in the form of law. The legal theory, if not the fact, appears to be the same in Japan today.

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