CHAPTER IV. CONGRESS IN GENERAL. § 46. Limited Powers of Congress. THE legislative is the most powerful and the most important of the three departments of the government of the United States. Accordingly a description of this is contained in the first Article of the Constitution, which follows the Preamble. The first section reads: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." The first words of the article creating Congress show that the powers therein granted are limited and not general. "The term all legislative Powers herein granted,' reminds both the Congress and the people of the existence of some limitation. The introduction displays the general objects. The Constitution itself enumerates some of the powers of Congress, and excludes others which might perhaps fall within the general expressions of the introductory part. These prohibitions are in some degree auxiliary to a due construction of the Constitution. When a general power over certain objects is granted, accompanied with certain exceptions, it may be considered as leaving that general power undiminished in all those respects which are not thus excepted."1 It is well settled that the Constitution of the United States is a grant of powers; 2 whereas the State constitutions are, so far as the State legislatures are concerned, limitations of powers previously existing.3 § 47. Origin of Congress. The name of Congress was taken from that of the body which preceded and continued under the Articles of Confederation; but there is no analogy between their functions, and the source of the present institution is far different as well as distinct from that of its predecessor. The Continental Congress and that which sat under the Articles of Confederation were, in theory at least, what their name denotes, gatherings of ambassadors,1 although in fact they exercised considerable legislative power, which they usually disguised by the terms, recommendations and ordinances.2 The present Congress of the United States is a national legislature, and its source may be traced through the British Parliament to the meetings in the woods of Germany described by Tacitus.3 The form of government which prevails usually in primitive communities comprises a king or chief, a senate or gathering of elders or selectmen with whom he consults, and a public assembly of all freemen with the right of suffrage, who decide questions of importance, whether legislative, executive or judicial, which are submitted to them. This naturally arose from the councils of war, where the general, after consulting the more experienced, took the sense of the whole body of warriors before an important enterprise. Such a legislative assemblage of the whole people may still be seen once a year on the Tynwald in the Isle of Man, in the Swiss cantons of Uri, Unterwalden, Glarus and Appenzell; and more frequently in the town-meetings in New England and the Western States. In Switzerland the voters still follow the early custom of attending armed. Of such a character were the federal assemblies of the Achaian, Aetolian and Lycian Leagues, which Co. v. Debolt, 16 How., 416, 438; Pratt v. § 47. 1 Chief Justice Marshall in each citizen had a right to attend, although they voted by cities." They were manifestly impracticable when a government was spread over an extensive territory, and to the lack of representative institutions has been ascribed the loss of liberty in Greece and Rome. The senates of these confederations seem to have been composed of the present and former magistrates of the different cities, who acted rather as ambassadors than legislators, and voted by cities, each having an equal voice regardless of differences in wealth and population.6 Such gatherings of all freemen to decide questions submitted to them by their kings and a select body of his advisers were customary among the German tribes whose descendants conquered England and North America. Their kings seem to have had certain hereditary rights; but their local magistrates were elected, and with these were joined certain companions or assistants. The companions were the prototypes of the assistants in the colonies and of our present members of Congress. The wars during the subjugation of England and the consolidation of the different tribes into a single monarchy strengthened the powers of the king and the class of nobles who arose, so that the powers of the latter became in law, and that of the former in 5 Freeman, History of Federal Government. 6 Ibid. 716 Reges ex nobilitate, duces ex virtute sumunt. Nec regibus infinita aut libera potestas; et duces exemplo potius quam imperio, si prompti, si conspicui, si ante aciem agunt, admiratione praesunt." (Tacitus, Germania, c. 7.) "De minoribus rebus principes consultant, de majoribus omnes, ita tamen ut ea quoque quorum penes plebem arbitrium est apud principes pertractentur. Credunt, nisi quid fortuitum et subitum inciderit, certis diebus, cum aut inchoatur luna aut impletur; nam agendis rebus hoc auspicatissimum initium credunt. Nec dierum numerum, ut nos, sed noctium computant. Sic constituunt, sic condicunt. Nox ducere diem videtur. Illud ex libertate vitium, quod non assensus practice, hereditary, while the gathering of all the freemen of the nation became impossible, although the form of an appeal to them for their consent to the coronation of the king was preserved.8 The national legislature was the Witenagemote, in which sat the chief vassals of the crown, the ealdormen or county leaders, and the bishops, whom they appointed.9 Its exact composition is obscure, but some writers believe that all freemen had the right to attend.10 The people certainly preserved certain powers of local selfgovernment. All freemen still had the right to take part in the shiremote of the county where they lived; and as late as the reign of Athelstan laws were submitted to the shiremotes for approval before they took effect. They also kept the right to elect certain local officers, including four companions of the reeve from each township, who took part in the shiremote, and represented such of the people as did not attend in person.12 These were evidently the same officers that were found by Tacitus in ancient Germany.13 The Norman conquest extended the feudal system, and made local government more despotic in its character. In England, however, as on the Continent, the kings gained strength against the nobles by the grant of chartered privileges, including the power of electing their own magistrates, to boroughs as well as cities. And the assemblies of the tenants in chief included not only bishops, but also abbots, who were, in theory at least, elected by the ecclesiastics over whom they presided, and whom they represented when voting aids to the crown. In the apportionment of the taxes levied, and in the selection of juries, it became customary to allow each English shire to elect four knights to represent it. King John, who had a doubtful title and an empty treasury, in 1213 followed this analogy when he directed the sheriffs to summon four discreet men from each county to his council at Ox 288. * Supra, § 7, note 3, p. 30. Stubbs, Select Charters, pp. 10, 11, 10 Freeman, Growth of the English Constitution, ch. ii; Norman Conquest, vol. i, p. 591, Appendix; Taylor, Origin and Growth of the English Constitution, p. 184. 11 Stevens, Sources of the Constitution, 1st ed., p. 65, quoting Kemble, Saxons in England, vol. ii, pp. 236, 237. 12 Stubbs, Select Charters, pp. 9, 287. 13 Supra, note 7. L ford.14 This was a development of the representation of the township in the shiremote by the reeve and his four elected companions.15 On the Continent, the towns had formed leagues for mutual protection against the magnates in their vicinity, at which at first the representatives of each town were the magistrates whom it had elected for general purposes. Out of these grew the representation of the towns in the third estates of Spain and France.16 Simon de Montfort perhaps took the idea from Spain, when, to strengthen himself in his contest with Henry III, he summoned to Parliament, in 1265, two representatives from each city and borough, as well as the knights of the shire. In thirty more years, under Edward I, the right of both towns and shires to representation was fully established.17 At the institution of popular representation in Parliament there were three estates as finally established in France and Spain; but the clergy, fortunately for civil liberty, had the folly to cast aside their opportunity, and chose at first to grant their aids in convocation, a privilege which they afterwards relinquished; and they became subject to Parliament without any different representation than the other commoners, except through their bishops in the House of Lords.18 In the northern countries of continental Europe the burghers and the peasants were separately represented; and in Finland the four estates still assemble. Whether the representatives of the three estates ever conducted their deliberations in the same assembly in England is a matter as to which historians disagree.19 Cer 14 A copy of the writ is printed in Stubbs' Select Charters, 287. 15 Ibid., p. 287. 16 Ibid., pp. 43-44; Spencer, Political Institutions, § 498. In Florence, in 1250, the citizens divided into groups, of which each chose a captain, and the captains in council ruled the city (ibid., § 487). 17 Stubbs, Select Charters, pp. 40-44. 18 Stubbs, Select Charters, pp. 38, 39. The right of Parliament to tax the clergy and the surrender of the jurisdiction of the convocations over the subject was arranged in a verbal agreement between Archbishop Sheldon and Lord Chancellor Clarendon in 1664, under Charles I, just after the restoration. Bishop Gibson pronounced it to be "the greatest alteration of the Constitution ever made without an express law." (Speaker Onslow's note to Burnet's History of My own Times, Oxford ed. of 1853, vol. iv, pp. 520-521.) 19 Prynne, 1st Register, p. 233, denies this. Coke, 4 Institutes, p. 4, says that they did. (Taylor, Origin and Growth of the English Constitution, p. 478.) |