CHAPTER XXIII

PRINTING AND RECORDING

THE Massachusetts General Court had not been in existence a dozen years, when it attested the importance to a legislative assembly of knowing just what it is acting upon, by ordering, October 7, 1641, "that henceforward nothing should bee put to vote before it bee written." Furthermore, the Court evidently felt that both its dignity and its convenience called for proper documents, judging by this edifying entry of May 29, 1655: "Mr. Robert Saltonstall is fined 5 shillings for presenting his petition in so small and bad a peece of paper.' ." We may hope that the thrifty "Mr." Saltonstall thereafter was more generous and thoughtful with his stationery.

The beginnings of another of our States, Pennsylvania, show that in the seventeenth century at least one man believed it was also of importance that the people should know what laws were proposed. William Penn, in his Frame of Government (1682), provided that all the bills the Governor and Council might prepare to be passed into laws by the General Assembly should be "published and affixed to the most noted places in the inhabited parts" of the Province, "thirty days before the meeting of the General Assembly, in order to the passing them into laws or rejecting of them, as the General Assembly shall see meet." This was the honorable tradition of Pennsylvania when Benjamin Franklin, master printer, endowed with common sense beyond most Americans of his or any other time, came to preside over the Convention of 1776 for framing a Constitution. He is believed to have inspired much of that document and it is no stretch of probability to assume that he was responsible for Section 15: "To the end that the laws before they are enacted may be more maturely considered, and the inconvenience of hasty determination as much as possible prevented, all bills of public nature shall be printed for the consideration of the people, before they are read in general assembly the last time for debate and amendment; and, except on occasions of sudden necessity, shall not be passed into laws until the next session of assembly." Among the various in1 Records of the Colony of the Mass. Bay in N.E., 1, 339. 2 Ibid., 11, 76.

fractions of the Constitution pointed out by the Council of Censors at the close of its only session (November, 1783, to September, 1784) was the passing of many bills without the publication required. Presumably experience did not lead to the belief that the neglect worked harm, for when the Constitution of 1790 was framed, this provision was dropped. In the course of time, however, abuses developed by reason of lack of constitutional safeguards, leading the Convention of 1873 to revive the old requirement in a new form: "No bill shall be considered unless referred to a committee, returned therefrom, and printed for the use of members." It was also stipulated that all amendments should be printed before final vote on a bill.

This was an improvement on the provision put into the Constitution of Illinois in 1870, which required only that the bill and amendments should be printed before final passage, for that would permit leaving a measure unprinted during the debatable stages. Herein lie the variations in practice shown by the different States. Of those that have constitutional requirements in the matter, Colorado, Montana, and Wyoming follow Pennsylvania in demanding that no bill shall be considered until it has been printed. Ten others content themselves with the Illinois stipulation. Those that handle the matter by legislative rule show a wide diversity in custom. Some print bills on introduction as a matter of course. Others print bills only when "of general public interest," or when "authorized by the House," or when "favorably reported from committees." For example, in Minnesota and Georgia it is required by rule that no bill be printed until it has been favorably reported by a committee, but in Minnesota the House may order printing by a majority vote and in Georgia permission may be granted on the request of a committee. Few bills are printed in Delaware, Florida, or Mississippi.

When New York in 1894 required every bill to be printed and put on the desks of members in its final form three days before final passage, exception was unwisely permitted in case the Governor should certify to the necessity of immediate passage. The Convention of 1915 recommended abolishing this opportunity for emergency messages by the Governor, but the failure of the work of that Convention has kept the improvement from being made.

Nowadays there is no valid reason why Legislatures should not go the whole distance in securing the full benefit of printer's

ink. It may, indeed, be argued that the Massachusetts practice of printing every bill on introduction, coincident with reference to a committee, results in waste of money on scores and even hundreds of bills that have no chance of success, and occasionally furnishes an undesirable chance for propaganda at the public expense. These abuses, however, will be greatly lessened when the Legislature sees the wisdom of charging a nominal fee. Even now their total cost is an inconsiderable matter compared with the great help toward good legislation that is given by the opportunity to see in type every proposal to be considered. To attempt saving money by refusing to print everything is a pennywise pound-foolish economy that is really parsimony.

Iowa has an unwise rule that printed bills are not to be given out to the public except to, or upon the order of, the presiding officer, a member, or a State officer. Fortunately the rule is not strictly enforced. Precisely the opposite course from that contemplated by the rule ought to be encouraged. There should be every endeavor to get printed bills into the hands of citizens interested.

ENGROSSING AND SIGNING

It is probable that the chief motive for constitutional provision in the matter of printing was not to serve the convenience of members, but to ensure that the bill enacted into law shall be what it is supposed to be by those who vote on it. The chance for mistake or fraud at this stage of legislative procedure has made trouble ever since it brought about the parliamentary revolution that took from the King and his lawyers the work of phrasing the laws. It will be remembered that the practice of submitting a perfected bill to the King came into existence because of just complaint that the bills drafted in response to the petitions of Parliament did not correspond to what had been voted.

In at least one of the American colonies there was ground for like complaint. S. G. Arnold tells us, in his "History of Rhode Island" (11, 108), that the old custom there was for the Assembly to pass an act in substance, leaving it for the Clerk or Recorder to put in proper form. The inconvenience of such a loose method of procedure was felt more than once, and there is reason to believe the intention of the Assembly was sometimes misrepresented, through carelessness or design. "In one matter, at least,

which has become of historical importance, although of no practical moment at the time, the State has suffered to the present day from this inadvertence," Arnold says. He referred to the words "professing Christianity" and "Roman Catholics excepted," which he believed to have been interpolated about 1699 in the act of 1663 concerning the admittance of freemen. The danger of such happenings, together with the need that accompanied the plan of printing the laws, and the frequent requisitions from England for copies of them, compelling greater care in their composition, led to the appointment of an engrossing committee in June of 1732.

Massachusetts had made provision in the matter in 1653, the entry reading: "Mr. Bellingham, Mr. Glover, and Mr. Hill, are appointed with the secretary to peruse the laws that is past this Court, comparing them with the original copies." This may have been the first record of what became the Committee on Engrossed Bills.

Engrossment, as long as practiced in Parliament, was, D'Ewes says, "no more than to transcribe the bill fairly out of the paper, in which it was written, into parchment." Its purpose was merely to make a clean copy with the amendments in their proper places on a permanent and substantial material. In Parliament it has been displaced by printing, and the process is nothing but the printing of the bill as it passes one House, to go to the other. In this country there is confusion in the use of the words "engrossment" and "enrollment." Many of the Legislatures have at the same time committees on engrossed bills and on enrolled bills. Apparently enrollment means inscribing on parchment preliminary to signature. Engrossment sometimes means that, sometimes means the preparation of the clean printed copy for further consideration. Not infrequently the original bill, if printed or if fairly written without interlineation, and not amended, may, when ordered to be engrossed for a third reading, be reported to the House as the engrossed bill.

For the most part the States have thought it enough to take precaution in these matters by means of legislative rules. New Mexico, however, has deemed it expedient to put this into her Constitution: "No interlineation or erasure in a signed bill shall be effective unless certified thereon in express terms by the presiding officer of each House quoting the words interlined or 1 Records of the Colony of the Mass. Bay in N.E., Iv, pt. 1, p. 149.

erased, nor unless the fact of the making of such interlineation or erasure be publicly announced in each House and entered on the Journal. Any person who shall, without lawful authority, materially change or alter, or make away with, any bill pending in or passed by the Legislature, shall be deemed guilty of a felony and upon conviction thereof shall be punished by imprisonment in the penitentiary for not less than one year nor more than five years."

Missouri, in 1875, had approached the danger from another angle. Requiring that the presiding officer should read a bill at length when affixing his signature, it went on to say: "If in either House any member shall object that any substitution, omission, or insertion has occurred, so that the bill proposed to be signed is not the same in substance and form as when considered and passed by the House, or that any particular clause of this article of the Constitution has been violated in its passage, such objection shall be passed upon by the House, and if sustained, the presiding officer shall withhold his signature; but if such objection sball not be sustained, then any five members may embody the same, over their signatures, in a written protest, under oath, against the signing of the bill. Said protest, when offered in the House, shall be noted upon the Journal, and the original shall be annexed to the bill, to be considered by the Governor in connection therewith."

One of the reforms that Charles McCarthy, as Chief of the Wisconsin Legislative Reference Department, helped to make in the procedure of the Wisconsin Legislature, was the printing of engrossed bills and the placing of them on the desk of each member. Thus, as he tells it, if a legislator found errors in his bill he could immediately stop its passage to the Governor and have them corrected. "This reform removed one temptation to corruption. The Governor at the same time secured an able attorney to examine bills before he signed them, so that if errors were found, they could be corrected before his signature was affixed. What he actually signed was one of the printed copies of the engrossed bills which were laid upon the desk of every member. Here were checks against mistakes in the passage and the final product, together with such watchfulness as would prevent dishonest clerks from inserting or removing something at the behest of interested parties."

1

The Wisconsin Idea, 194 et sqq. (1912).