CHAPTER XVIII COÖRDINATION "THE necessity for the concurrence of the three branches of the legislature constitutes the excellence of our Constitution." So declared Chief Justice Holt in the great Aylesbury case, in 1704. Of course he had in mind the Crown as one of the three branches. In England the Crown has become a legislative cipher and with us the Executive can be overruled, so that to-day a like encomium would not go beyond two branches, but the necessity for concurrence to that extent is still generally thought a constitutional excellence of high degree. Barring exceptional devices for giving the lower House its way if the upper persists in opposition, it is probably the universal rule that in a bicameral legislature one branch cannot act by itself in a legislative capacity. That it cannot alone even clothe itself with the minor qualities of a legislature was brought out in the English case of Stockdale v. Hansard, which decided in effect that a libelous document did not cease to be a libel because it was published by the House of Commons, or because the House subsequently resolved that the power of publishing the report containing it was an essential incident to the constitutional functions of Parliament. On this side of the water the matter came up in November of 1770, when the Massachusetts House of Representatives added to its quarrels with Lieutenant-Governor Hutchinson one about the style of enacting. Hutchinson informed the House it was His Majesty's instruction that the style should be "by the Governor, Council, and House of Representatives." The House insisted there should be added the words, "in General Court assembled," as not merely words of form, but of substance, and necessary to the validity of every act. You may find the controversy that followed set forth in "Massachusetts State Papers," 279 et sqq. It was like the other disputes of the decade that led to Lexington - on the colony side wordy, meticulous, keen, irritating; on the Government side suave, condescending, here and there impatient. The colonists appear to have feared in this instance some danger dimly seen. The style required by the Crown had in fact been in use thirty years. Just why it was adopted, Hutchinson said he did not know - perhaps merely because the old style was unnecessary and redundant. That it did not follow previous usage on both sides of the water was enough for a quibbling point of the kind it looks as if the colonial lawyers deliberately sought in order to embroil the situation further - very likely a wise policy to arouse the people. Hutchinson in the course of the controversy laid down this proposition: "The words 'House of Representatives,' in our laws, are technical and used in an appropriated sense, and signify a body of men, who are an essential part of the General Court or Assembly, and which part can have no separate existence; and, the instant the General Court or Assembly is dissolved, the House of Representatives is annihilated; and, the instant the General Court is prorogued, there is a temporary cessation of the existence of the House, or, what is equivalent to it, an incapacity of exertion of any sort of power." Hence he argued that every valid act of the "Governor, Council, and House of Representatives" must be an act of them "in General Court assembled." 1 Perhaps John Adams had the episode in mind when he drew the Massachusetts Constitution, for he divided the chapter on "The Legislative Power" into three sections, headed respectively (1) "The General Court," (2) "Senate," and (3) "House of Representatives." Yet, he said, "the department of legislation shall be formed by two branches." To this he added, "each of which shall have a negative on the other." New Jersey had been equally specific with "The consent of both Houses shall be necessary to every law." When Vermont created a Senate, in 1836, she declared: "No bill, resolution, or other thing, which shall have been passed by the one, shall have the effect of, or be declared to be, a law, without the concurrence of the other." For the most part, however, explicit statement of this sort has not been deemed necessary by the Constitution writers. Indirectly the intent is commonly disclosed by requiring that a bill submitted to the Governor shall have passed both Houses. Independent action by the two bodies was clearly contemplated by the Virginia provision that the legislative department be "formed of two distinct branches, who, together, shall be a complete Legislature." New York was more emphatic with "The supreme legislative power within the State shall be vested 1 Mass. State Papers, 291. in two separate and distinct bodies of men, who together shall form the Legislature." North Carolina at the outset and South Carolina in her second Constitution each used the adjective "distinct." The potential importance of the matter is suggested by the action of the Kansas House in 1877, when it protested against receiving the Governor's message by a joint convention of the two Houses, "because such a gathering does not constitute the Legislature of the State of Kansas." Joint conventions for ceremonial purposes have not been unfamiliar, and sometimes they have been prescribed for purposes of election, but their use for lawmaking will undoubtedly require constitutional sanction. Tendency in this direction might be inferred from the recent action of Massachusetts in providing for consideration of proposed constitutional amendments in joint sessions of the General Court. The idealistic Constitution that Gabriele d'Annunzio furnished to the Free State of Fiume August 27, 1920, provided that the two legislative branches should meet as one body once a year, forming a great National Council to deal with and pass upon relations with other States, finance and treasury matters, higher education, revision of the Constitution, and the extension of freedom. Our fathers did not without friction come to agree that the two branches of a legislative body should be coördinate and that neither should surpass the other. Human nature would not let such a conclusion be reached without attempt on each side to win precedence and advantage. A curious instance of this may be found in a Massachusetts episode of 1765 when the Council undertook to make a material alteration in a bill that had come up from the House, to which body a new draft was returned for passage. In this the House contended the Council had exercised a degree of interference and dictation that the House deemed very improper. The measure was not a money bill, and the House did not deny the right of the Council to alter, but it questioned the propriety of having a bill, thus materially altered, appear as if it had originated in the House. As a matter of punctilio the affair indicates the jealousy the House felt as to its prerogative. What is of more consequence, it suggests the reason why in more than half of the State Constitutions it has been thought necessary to say that a measure may be amended in the House in which it did not originate. In Maryland the upper House had used the whip hand. It was in 1669 that the delegates to the Assembly presented to the upper House a paper of seven grievances, at which the upper House took offense, ending a parliamentary squabble with an ultimatum to the lower House to expunge the offensive votes from its Journal, or be dissolved by the Governor. This brought the Assembly to terms. It declared its readiness to have its Journal expunged or obliterated, or the form of stating the grievances changed in any way, if thereby the weight of them could be removed from the province. The upper House then modified its demand, so as to require only that certain of the complaints should be expunged. To this the Assembly agreed, the upper House promising on its part to use its influence with the proprietor to secure a limitation of certain fees and court charges. Rhode Island found an ingenious way for avoiding such quarrels. In 1672 the Treasurer of that colony was instructed to provide, at public expense, a dinner "ffor the keepinge of the Magistrates and Deputies in love together, for the ripeninge of their consultations, and husbandinge of their time." Such laudable motives might commend the practice for occasional imitation even to-day. Perhaps a dinner at the public expense would have saved Connecticut from a ridiculous episode soon after the Revolutionary War. Its House of Representatives had taken offense at a certain act of Congress. Noah Webster relates that the upper House, understanding the necessity and expediency of the measure better than the people, refused to concur in a remonstrance to Congress. Several other circumstances gave umbrage to the lower House; and to weaken or destroy the influence of the Senate, the Representatives, among other violent proceedings, resolved not merely to remove the seat of government, but to make every country town in the State the seat of government, by rotation. "This foolish resolution," Webster says, "would have disgraced schoolboys the Senate saved the honor of the State by rejecting it with disdain and within two months every Representative was ashamed of the conduct of the House. All public bodies have these fits of passion, when their conduct seems to be perfectly boyish; and in these paroxysms, a check is highly necessary."1 Trivial though it seems, yet jealousy or false pride has at times absurdly marred the relations between the branches. In 1772 Burke complained bitterly that he had been kept three 1 Ford's Pamphlets on the Constitution, 33–34. hours waiting at the door of the Lords, with a bill sent up from the Commons. The Commons were so indignant at this treatment of one of their number that, shortly afterward, when a bill was brought down from the Lords to impose a bounty on corn, the House rejected it by a unanimous vote. The Speaker then tossed it across the table on the floor, and a number of members rushed forward and kicked it out of the chamber. A somewhat similar occurrence is described by the acidulous Senator Maclay in his "Journal" under date of April 28, 1789. He prefaces it with a delicious bit of character drawing at the expense of his New England colleagues, which, though not particularly pertinent to the story, is too good to omit. "I have had full opportunity," he wrote, "of observing the gentlemen of New England, and sorry indeed am I to say it, but no people in the Union dwell more on trivial distinctions and matters of mere form. They really seem to show a readiness to stand on punctilio and ceremony. A little learning is a dangerous thing ('t is said). May not the same be said of breeding? It is certainly true that people little used with company are more apt to take offence, and are less easy, than men much versant in public life. They are an unmixed people in New England, and used only to see neighbors like themselves; and when once an error of behavior has crept in among them, there is small chance of its being cured; for, should they go abroad, being early used to a ceremonious and reserved behavior, and believing that good manners consists entirely in punctilios, they only add a few more stiffened airs to their deportment, excluding good humor, affability of conversation, and accommodations of temper and sentiment as qualities too vulgar for a gentleman. "Mr. Strong [Senator from Massachusetts] gave us this morning a story, which, with many others of a similar nature (which I have heard), places this in a clear point of light. By the Constitution of Massachusetts, the Senate have the right of communicating bills to their lower House. Some singular business made them [the lower House] shut their doors. At this time called Samuel Adams of the Senate to communicate a bill. The doorkeeper told him his orders. Back returned the enraged Senator; the whole Senate took flame and blazed forth in furious memorial against the Lower House for breach of privilege. A violent contest ensued, and the whole State was convulsed with litigation." 1 1 Journal of William Maclay, April 28, 1789. |