[the Senate] as soon as I decently can, with the same pleasure that one would fly from a charnel-house." 1

Had the motion to expunge come up in the lower branch, it could not have prevailed if precedent were to be followed, for in 1810 Speaker Varnum had held that unanimous consent was necessary to expunge a vote from the Journal. The same ground was taken by the presiding officer of the Pennsylvania House of Representatives of 1832-33. Since then rulings by Speakers of the National House seem to have established that correct record of what took place may not be expunged, save of course by unanimous consent, which permits anything. In point of fact many things have been omitted from the Record and Journal by unanimous consent.

The record of a resolution offered in the Massachusetts House March 4, 1918, was ordered to be expunged. It criticized the United States Senators from Massachusetts for their course in relation to the conduct of the war, and in its place was substituted a vote of commendation for that course, by 194 to 3. On the motion to expunge there was no division, and the propriety of expunging was not questioned. At the close of the session of 1919 censure of a member made earlier in the session was expunged.

The correction of Journals is, of course, quite another matter. Besides unintended errors, there have been those of sinister purport to guard against ever since there were such things as records. When Julius Cæsar as Consul had directed that the proceedings of the Roman Senate should be published, together with the acts of the popular assemblies and the principal events of the day, in his acta diurna or Journal of the city, he himself, and after him the Antonines, scandalously falsified the reports, and even affixed to their decrees the names of absent Senators, to give them more weight. The practice has not died out. In State Legislatures where the custom of short or omnibus roll-calls prevails, it is common for recording clerks to enter the names of members as voting for measures, unless expressly notified to the contrary. Such a practice seems incredible to one personally familiar with only the Massachusetts Legislature, where no clerk would ever dream of daring such a thing. No language in reprehending it would be too strong.

That the Journal shall be accurate in this particular becomes

1 Schurz, Henry Clay, 11, 106.

a matter of grave importance when the validity of legislation is questioned in the courts of those States that require the Yeas and Nays to be entered on the Journal in the case of the final passage of every bill. Such a provision is in part designed to furnish definite and conclusive evidence whether or not the bill has been passed by the requisite majority. It was held in Spangler v. Jacoby, 14 Ill. 297 (1853), that the office of the Journal is to record the proceedings of the House and authenticate and preserve the same. "It must appear on the face of the Journal that the bill passed by a constitutional majority. These directions are clearly imperative. They are expressly enjoined by the fundamental law and cannot be dispensed with by the Legislature."

It is the final record that constitutes the Journal. In 1917 the Secretary of the Arkansas Senate failed to incorporate in his Journal the record of the Yea and Nay vote on the passage of a certain bill. By testimony it was shown that the minutes of the Journal Clerk contained the list, but the court thought this could not suffice and so held the bill not properly passed and therefore invalid. The court declared that the framers of the Constitution meant by the term "Journal" a permanent record. The daily minutes are merely temporary and do not constitute a part of the permanent record. 1

The courts have consistently given to the Journals authority controlling as to prior happenings. In State v. Mead, 71 Mo. 266 (1879), it was held that in the absence of protest "noted upon the Journal" the presumption was in favor of right and not wrong. The same ground was taken in State v. Field, 119 Mo. 593 (1893), and in McCaffery v. Mason, 155 Mo. 486 (1899). In Attorney-General v. Rice, 64 Mich. 385 (1887), parol proof that a skeleton bill had been used to evade the Constitution was declared unavailing because "The testimony of an individual could not be received to contradict a statute, and, if not, why receive it to contradict an entry upon the Journal?" The Michigan court went on to refuse even recognition to an admission on the pleadings that no bill was ever introduced, but that the title was endorsed upon a blank piece of paper and put in. "Courts do not allow parties to stipulate or agree, or admit by pleadings, that a statute was not properly or constitutionally passed by the Legislature. If the Constitution has not been complied with in the passage of an act, that fact must be shown by the printed 'Niven v. Road Imp. Dist. No. 14, 132 Ark. 240 (1918).

Journals, or the certificate of the Secretary of State, the custodian of legislative proceedings. Such facts cannot rest in parol."

This, it will be seen, left uncertain the further question of whether the Journals or the certificate of the Secretary of State shall prevail in case of discrepancy. In State er rel. AttorneyGeneral v. Green, 36 Fla. 154 (1895), Chief Justice Mabry set forth the situation. "There are," he said, "two conflicting views held by the decisions on the subject. Under constitutional requirements that Journals of the proceedings of the legislative bodies shall be kept and published, it has been held in many decisions that where the Journal entries, as to the legislative proceedings, are explicit, and conflict with legislative acts regularly authenticated, the Journals are superior, and the courts will be governed by them as to matters clearly, explicitly, and affirmatively stated therein. The other view, maintained by high authority, is that the legislative act itself embodied in a bill engrossed and enrolled, and bearing the proper official signatures, is of higher dignity than the Journals, and will override them. This court has placed itself on the side of those maintaining the view first stated."

As typical of the doctrine that certification is the test may be cited Kilgore v. Magee, 85 Pa. 401 (1877), in which the court said: "In regard to the passage of the law and the alleged disregard of the forms of legislation required by the Constitution, we think the subject is not within the pale of judicial inquiry. So far as the duty and the consciences of the members of the Legislature are involved, the law is mandatory. They are bound by their oaths to obey the constitutional mode of proceeding, and any intentional disregard is a breach of duty and a violation of their oaths. But when a law has been passed and approved and certified in due form, it is no part of the duty of the judiciary to go behind the law as duly certified to inquire into the observance of form in its passage."

When Congress enacted the tariff law of 1890, it developed that a section of the bill as it finally passed was not in the bill authenticated by the signatures of the presiding officers of the respective Houses and approved by the President. For this reason the plaintiff in Field v. Clark, 143 U.S. 649, a most important suit, averred the whole law was to be deemed an absolute nullity. The contention was that it could not be regarded as law if the Journal of either House failed to show that it passed in the

precise form in which it was signed by the presiding officers and approved by the President. The court, however, by Justice Harlan, held it was not competent to show from the Journals that the act did not pass in the precise form in which it was signed. The authentication is complete and unimpeachable. A large number of like decisions by State courts were cited. In Harwood v. Wentworth, 162 U.S. 547 (1896), Harlan, J., this was considered, affirmed, and applied as decisive of the case.

On the other hand, the New Hampshire Supreme Court in 1858 gave an opinion (35 N.H. 379) to the effect that an act was not a law, though signed by Speaker and President, and approved by the Governor, because it did not appear that an amendment made by the Senate had been concurred in by the House.

CHAPTER XXIV

THE WORDING OF LAWS

FROM time immemorial there has been ground for the constant complaint of the wording of laws. Let no man suppose the faultfinding is anything new. Examine the dealings between the American colonies and the mother country, and you will find that your forefathers were as much criticized as you are. The very first laws enacted by a lawmaking body in America, those of the Virginia Assembly of 1619, sent to England for approval as was to be the common course with colonial legislation, were there regarded as "judiciously carried, but exceeding intricate."

Trouble continued. In some cases acts were so carelessly framed that they were in parts inconsistent or unintelligible. The King's counsel reported, for example, that a Massachusetts law making lands and tenements liable for the payment of debts, was so unhappily worded that he could not see how, "by any construction whatever, it could effect the end proposed by it." 2 The Board complained that definitions of crime were too general, and found fault with such phrases as "Devilish Practice," or "playing at cards, dice, lotteries or such like." A New Jersey act imposed capital punishment upon counterfeiters of foreign coin that was "by common consent" passed as full satisfaction of debts. Criminal statutes often contained no clauses making premeditation or intent essential to conviction, and it was pointed out that they afforded judges an undue discretion, liable to arbitrary extension and abuse.

Bad lawmaking was even thought by the authors of "The Federalist" to be one of the reasons justifying the forming of the Nation. "It may be affirmed, on the best grounds," said Hamilton or Madison in No. 62, "that no small share of the present embarrassments of America is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. What indeed are all the repealing, explaining, and amending laws, which

1 J. E. Cooke, Virginia, 117.

E. B. Russell, The Repiew of the Am. Colonial Legislation by the King in Council, Col. Univ. Studies, LXIV, 143, 144.