Civil legislation, being morally an act of agency performed by the delegates or rep resentatives of the people, belongs to the legislature proper, and indirectly to the ju diciary in the exercise of a supervisory pow er arising out of actual controversy. In the hierarchy of government the people frame the constitution, the constitution creates the leg islature, and the legislature enacts the laws." Ordron. Const. Leg. 15.
The legislative institutions of England are considered by the best constitutional histori ans to have been of Teutonic origin ; id. 62; Freeman, Eng. Const. 18.
The ancient Teutonic assembly in its twofold op. eratien is thus described by Tacitus: "About minor matters the chiefs deliberate ; about the more im portant, the whole tribe. Yet even when the for mal decision rests with the people, the affair is al ways thoroughly discussed by the chiefs. They as semble, except in the case of sudden emergency, en certain fixed days, either at new or at full moon, for this they consider the most auspicious season for the transaction of business. Their freedom has this disadvantage, that they do not meet simultaneous ly, or as they are hidden, but two or three days are wasted in the delays of assembling. When the multitude think proper, they sit down armed. Si lence is proclaimed by the priests, who have on these occasions the right of keeping order. Then the king or the chief, according to age, birth, dis tinction in war, or eloquence, is heard, more because he has influence to persuade, than because he has power to command. If his sentiments displease them, they reject them with murmurs ; if they are satisfied, they brandish their spears. The most complimentary form of assent is to express appro bation with their weapons." Church and Brodribb's translation of Agricola and Germania, 95, 96. "Such," it is said, "was the earliest form of our racial legislature of which there is record. And in it were the germs of all that came after it. The essential features of Saxon markmoot, shiremoat, folkmoot and witenagemot; of Norman great coun cil; of parliament ; of colonial and state legisla ture ; and of the American congress, were ly derived from this ancient and original eource." Stevens, Sources of the Constitution 60. The same view of the origin of our legislative In stitutions Is taken by another writer on the subject who says : "The present congress of the United States is a national legislature, and its source may bs traced through the British parliament to the meetings in the woods described by Tacitus." 1 Fast. Const. 307. So also it was said by the great Frenchman by whom first was given verbal expres sion to the modern system of government: "Ce beau systtme a Ott trouve dans les bole." (This splendid system was found in the forest.) Montes quieu, L'Esprit des Lois, xi. ch. vi. Foster gives an interesting account of some primitive legislative assemblies of a whole people which are still in exist ence; of which probably no more perfect democra cy has ever existed than the town meeting of New England. See 1 Foot. Const. § 47 ; Spencer, Pol.
Inst. § 491; TOWN MEETING.
Going hack still further it is said that the Aryan Instinct of popular government finds expression in representative government, and confides the law making power to a legislature rather than to a personal sovereign, the latter system being always adhered to among the Oriental nations and those of Europe not affected by Aryan origin or admixture: Ordronaux, Const. Leg. 5.
The legislative system of America is undoubtedly derived from that of England ; the senate being a development from the house of lords and the privy council, and the house of representatives confess edly from the house of commons. The earliest im pressions which were received of legislative au thority in England, reflected the characteristic powers "of ancient Teutonic assemblies,—the exer cise of authority over tribal or national affairs, and the combining of judicial with legislative functions." Stevens, Sources of the Constitution 86. This au thority gives an interesting and instructive sketch of the growth of legislative power as it is known in England and America. Prior to Edward the Confes sor, the powers of the witenagemot were very great, extending to the making and unmaking of kings ; in cluding lease, taxation, treaties, land grants, control of military and naval forces, and ecclesiastical offi cers, including also the functions of a supreme court of justice. It survived the Norman conquest the oretically with the same powers, but practically they were minimized by the Conqueror and his successors at the same time that they observed the formality of professing to act by its counsel and advice. With the Plantagenets the legislative power increased, and under Edward I. parliament attained the perfect ed organization of the two houses, and the essentials of its subsequent authority which was subject to fluctuations. Subsequent alternations of power and weakness led up to the contest with the Stuarts and the final overthrow both of the throne and the lords, which, it is said, was "so disastrous that neither has since fully recovered the place once held in the fab ric of the state." After a partial reaction, the Revo lution of 1688 finally established the legislative pow er in England, and through- the opposing forces of the rise of the cabinet system, the feebleness of the first two Georges, and on the other hand, the asser tion of the royal power by George III., there hap pened to be at the period of colonial growt,h in America, and the establishment of American inde pendence, that condition of distinct and independ ent executive and legislative power which left its impress upon the American constitutions ; although in England the result of the cabinet system was the development of the final domination of the crown by parliament ; id. ch. 4.