and South America, shown to English-speaking peoples the breadth and depth of their good fortune in developing a priceless system of parliamentary law. To it we owe in measure little realized the liberty we deem so precious. By means of it our civilization makes progress that is healthy and safe.

Edward Everett said in the United States Senate, December 8, 1853: "There is nothing which so distinguishes the great national race to which we belong, as its aptitude for government by deliberative assemblies: its willingness, while it asserts the largest liberty of parliamentary right, to respect what the Senator from Virginia, in another connection, has called the self-imposed restrictions of parliamentary order; and I do not think it an exaggeration to say that there is no trait in their character which has proved more conducive to the dispatch of the public business, to the freedom of debate, to the honor of the country - I will say even which has done more to establish and perpetuate constitutional liberty."

Did Everett too much extol a framework of rules, a scaffolding of practices? Shall Parliamentary Law be spoken of in the same breath with Magna Carta, the Bill of Rights, the Declaration of Independence? Are its principles to be likened in importance to those of the common law or of equity jurisprudence?

It is true that with Coke and Blackstone and Kent we do not ordinarily class Hatsell and Cushing and Hinds. It is true that the literature of parliamentary law is scanty and that it deals with minutiae of seemingly little consequence to human rights. Yet think what the law and the practice of legislative assemblies really mean. They make it possible under a representative form of government for the will of the people to be ascertained. Starting with the assumption that this will is the will of the majority, we can give it expression and effect only by processes that at the same time endow it with form and win submission by the minority. Lacking either achievement, chaos follows.

Accurate expression of the majority will is only to be secured by adequate debate, conducted with freedom enough to permit every useful contribution of ideas and opinions, and with deliberation enough to exclude as far as practicable the untoward influences of precipitancy and passion. To this end there must be different stages of consideration and then opportunity for reconsideration. There must be protection against surprise and

fraud. A conclusion must be reached. Somebody must

preside and the others must not be at the mercy of his caprice. Due order must be followed in the transaction of business. Decorum must be maintained. Dignity must clothe the conduct of affairs if decisions are to command the respect of the people.

For these purposes rules are necessary. It would be most dangerous to rely on the inspiration of the moment for standards of conduct. The individual in the daily affairs of life finds the observance of a myriad conventions necessary for his convenience and safety. Much more is this important in assemblies. The psychologists have scientifically established, what is well known to every man with eyes in his head, that men in the mass are capable of sentiments, are subject to emotions, are swayed by passions, which exaggerate the weaknesses as well as the virtues of human nature. Unless codes of conduct have been agreed upon before the clouds appear on the horizon, every gust will threaten to wreck the ship. The nature of these codes is the minor matter. It is but repeating Hatsell and Jefferson and Cushing to say, it is more material there should be a rule to go by than what that rule is. In the words of Hatsell (11, 150) "if the maxim, 'Stare super vias antiquas,' has ever any weight, it is in those matters, where it is not so material, that the rule should be established on the foundation of sound reason and argument, as it is, that order, decency, and regularity, should be preserved in a large, a numerous, and consequently oftentimes a tumultuous assembly."

That this rule has won universal acceptance is shown by a remarkable phenomenon of which those who share in it are for the most part wholly unconscious. There is no rule of parliamentary law and no special rule adopted by a legislative body at the beginning of a session that could not at any time be disregarded by a majority without invalidating any resultant law. Barring constitutional obstacles, no court would ever question a statute because such a rule had been disregarded. Suppose an agreement that this or that action shall be taken only by a two-thirds or a unanimous vote, and then it is taken by a majority vote. No court will issue a writ of injunction or mandamus or any other kind of a writ by reason thereof. The principle has been laid down repeatedly. "The courts cannot declare an act of the

1 Sweitzer v. Territory, 5 Okla. 297 (1897). Also see People v. Hatch, 33 Ill. 9 (1863); State v. Brown, 33 S.C. 151 (1890); St. Louis Ry. Co. v. Gill, 54 Ark. 101 (1891); Cook v. State, 26 Ind. App. 278 (1901); Manigault v. Ward, 123 Fed. Rep. 707 (1903).

Legislature void on account of non-compliance with rules of procedure made by itself to govern its deliberations."

One case may be thought to be the contrary - People v. Devlin, 33 N.Y. 268 (1865). A bill that had passed both Houses and been sent to the Governor was recalled by the Assembly, which thereupon tried to strike out one section. The Senate refused to concur in this action and before the two branches could reconcile their differences, the Legislature adjourned. Thereupon the Governor signed the original bill. Was it valid? The Supreme Court held it was, on the ground that a bill passed by the two Houses and sent to the Governor could not be recalled except by joint action of the two Houses, and that action on a bill sent back upon the request of one only was a nullity. There was no evidence of compliance by the Assembly with its rule that a motion for reconsideration must be made on the same or the following day. When they have rules to govern themselves in the various stages of legislation, said Justice Potter, "and they have thus become the law, they cannot themselves arbitrarily depart from such law, and conduct their proceedings by other rules, not known to or adopted by such body." If he meant that legislative rules by their adoption had "become the law" of the land, his opinion may be respectfully doubted. One branch of a Legislature cannot make law by itself, nor can both branches in concurrence, but without the approval of the Executive, unless by the vote that may be necessary to override a veto.

He went on to say: "Though acts of the Legislature, signed by the Governor, not in conflict with the Constitution, may be omnipotent in this regard, to overcome violations of parliamentary law, in producing their passage, it is quite clear, that anything short of an act of the Legislature can work no such effect as to legalize a breach of the rules." On the contrary, nothing of the sort is quite clear. A breach of legislative rules is not unlawful in the sense of exposing its perpetrators to the possibility of coercion by legal processes or of penalty, and to say that it can be "legalized" seems to me a misuse of terms. In the case of the statute in question the completed action of the two Houses and the transmittal of the bill to the Governor, was enough to warrant him in signing, regardless of his having let the bill go out of his hands temporarily at the request of the Assembly.

If, then, we are to take the validity of enacted law as the test

(always barring constitutional defects), the rules of any Legislature or Congress are nothing but a "gentleman's agreement," wholly dependent on the good faith of the participants. Yet nobody ever thinks of transgressing such agreements except by the methods the agreements themselves prescribe or by unanimous consent. What stronger proof could be given of the universal consciousness of their importance?

Herein lies the safety of the minority, and this it is that makes parliamentary law and procedure of the greatest consequence to the public safety. Government survives because the lesser part yields to the greater part. Teutonic peoples have had more success than others in self-government because with them the minority, however convinced of its own wisdom, consents to be ruled by the majority until in orderly fashion the minority can make itself the majority. The minority insist on only the right to be heard. Theirs is the cry of Themistocles to Eurybiades "Strike, but hear me!" Give them but the chance to present their arguments, fairly, fully, and they will abide the issue. This is what we call liberty, though just why it would be hard to tell.

Francis Lieber dwelt on that aspect of the matter in two of his books. In one he said: "Parliamentary practice, or rules of proceeding and debate, such as have been developed by England, independently of the executive, and, like the rest of the common law, been carried over to our soil, form a most essential part of our Anglican constitutional, parliamentary liberty. This practice, as we call it for brevity's sake, is not only one of the highest importance for legislatures themselves, but serves as an element of freedom all over the country, in every meeting, small or large. primary or not. It is an important guarantee of liberty, because it serves like the well-worn and banked bed of a river, which receives the waters that, without it, would either lose their force and use by spreading over plains, or become ruinous by their impetuosity when meeting with obstruction. Every other nation of antiquity and modern times has severely suffered from not having a parliamentary practice such as the Anglican race possesses, and no one familiar with history and the many attempts to establish liberty on the continent of Europe and in South America can help observing how essentially important that practice is to us, and how it serves to ease liberty, if we may say so.' And in the other: "The American or English reader, brought up

On Civil Liberty and Self-Government, 189.

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almost from early youth in an acquaintance with, and in many respects even under the influence of, the parliamentary law and usage - for it extends to our very schools - considers many things indeed most natural and hardly worth reflection which nevertheless required ages to become acknowledged, and for want of which civil liberty, or at least the expedition of the common business, could not prosper. All usages and laws which relate to debating...are of essential importance to liberty itself, and they must be considered as one of the safeguards of liberty which we possess in advance of the ancients." 1

Eminent men have looked at the matter from much the same point of view when emphasizing protection as the chief purpose. Note, for example, a particularly eloquent panegyric by Joseph Story, spoken on leaving the Speaker's chair of the Massachusetts House of Representatives to take his seat on the Supreme Bench of the United States. "Cheered, indeed, by your kindness," he said, "I have been able, in controversies marked with peculiar political zeal, to appreciate the excellence of those established rules which invite liberal discussions, but define the boundary of right, and check the intemperance of debate. I have learned, that the rigid enforcement of these rules, while it enables the majority to mature their measures with wisdom and dignity, is the only barrier to the rights of the minority against the encroachments of power and ambition. If any thing can restrain the impetuosity of triumph, or the vehemence of opposition if any thing can awaken the glow of oratory, and the spirit of virtue - if any thing can preserve the courtesy of generous minds amidst the rivalries and jealousies of contending parties, it will be found in the protection with which these rules encircle and shield every member of the legislative body. Permit me, therefore, with the sincerity of a parting friend, earnestly to recommend to your attention a steady adherence to these venerable usages.'

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Observe the same keynote in sentences from a speech delivered by a statesman of our own time, Elihu Root, in the Senate of the United States, February 15, 1915. "The purpose of rules," he said, "is to establish a course of conduct which shall be a protection to the minority and preserve them in the performance of their duties against arbitrary repression on the part of the major1 Manual of Political Ethics, 2d ed., 11, 227, note.

Life and Letters of Joseph Story, 1, 203.

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