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the troubles of our Houses is not beyond the pale of reason. If we see fit to search for such remedy, we shall find that we can choose among: (1) the small quorum for everything, as in England; (2) the small quorum for all but the decisive business, as in Spain; (3) no quorum requirement save for specified steps, as in France, Japan, and Panama; (4) postponement of decisive action if a quorum is demanded, as in France; (5) refusal to take note of the absence of a quorum save on the demand of several, as in Italy; (6) enlargement of the power and responsibility of the presiding officer.

To change our quorum specifications would everywhere require constitutional amendment, and this would be difficult, for Congress practically impossible, to achieve. Therefore, we must proceed along the line suggested by the realities of the case, for we do now transact the greater part of our business without regard to the constitutional requirement, either avowedly as with the rule for a quorum smaller than a majority in Committees of the Whole (at least in the National House), or tacitly by taking no formal notice of the absence of a quorum unless on the demand of some member. Development in this direction might take the form of a rule that upon discovery of the absence of a quorum except at a decisive stage, the House should automatically be dissolved into a Committee of the Whole, proceeding, however, as if it were a House, until the appearance of a quorum, when decision votes confirming action while sitting as a Committee could be taken. Coupled with this might be a rule to permit Committees of the Whole either to proceed without a quorum or upon discovery of its absence to report to the House and get a quorum, as the majority might see fit.

The other possible line of development is toward the Italian device, of refusing to entertain doubt of the presence of a quorum except on the demand of several members. Probably it would be impossible to go the whole distance of the Italian rule, for we are jealous, perhaps unduly jealous, of the privilege every member has of calling attention to violations of order, and particularly of constitutional order. Rather than even appear to encroach on this privilege, we have endured the grossest abuse of individual power. Probably there has been no more flagrant instance of this than that furnished by the House of Representatives in the 66th Congress (1919-21), where one Representative was responsible for 126 quorum calls and another for 33, thus

between them wasting at least two weeks of the term. It is unnecessary to impugn their motives. Assuming that they acted with purposes disinterested, public-spirited, honorable, yet were the results costly and grievous.

Nevertheless the suggestion that a presiding officer be empowered to ignore a point of order unless raised by several members in conjunction, is so foreign to our parliamentary habits that an advocate could hardly hope for its unqualified acceptance. Yet to some degree the idea could be logically applied. It is the duty of a presiding officer to maintain order. He is expected to do this upon his own initiative in all matters of decorum. If in other matters he is thought to ignore transgression, we now say that any one member may call upon him to act. Why any one member rather than several members in conjunction? The answer is clear in matters of high constitutional privilege. Every member has taken oath to support the Constitution and every member ought to have the right to demand the observance of that instrument. So if any member sees the House attempting "to do business" in the absence of a majority, he should have the right to protest.

This brings us to the question of what "to do business" means. Already we interpret it in some connections as implying the word "decisive," or some equivalent, before "business." If this inter-, pretation is ever justifiable, it is always justifiable. Hence it follows that whenever the business of the moment is not decisive in character, we may without violating the Constitution in the particular in question lay down any rules we see fit.

A permissible remedy, therefore, is to stipulate that except at decisive stages, the Chair need not recognize the point of "no quorum." In the National House such decisive stages would be votes on motions to lay on the table or postpone indefinitely, on adopting a conference report, on ordering to engrossment and a third reading, and on passage. At other times a specified number of members, say five, eight, or ten, might be empowered to require the Speaker to get a quorum, or it might be left to his judgment (subject to appeal) to determine when it may be desirable to set the bells a-ringing and bring in absentees. The crux of the matter is that at present any one of 434 men may exercise such judgment, without recognized responsibility, perhaps impelled by passion, pique, prejudice, vanity, or other motive that would rarely sway the Chair. Would it not be better to vest

the exercise of such judgment mainly in the man chosen from his fellows as the best fitted to guide their deliberations, and from the very nature of his office sure to be more than ordinarily calm, prudent, judicious?

The most desirable thing of all would be to take the quorum requirements out of our Constitutions. They were unwisely put into the organic law. Much better would it be to leave all matters of procedure to the rules of legislative bodies, subject to change from time to time as conditions change. Removal, however, is too much to expect, at any rate in the matter of the Federal Constitution, which turns out to be virtually beyond amendment save in point of great questions arousing general interest. Even the States prefer condoning evasion rather than bother with remedying relatively small defects in technique. For example take the New York requirement that a bill on final passage shall have the assent of a majority of the members elected, the question to be taken by Yeas and Nays, which shall be entered on the Journal. This is evaded by the pretense known as "the short roll-call," one feature of which consists of fictitious entries on the Journal. Such palpable malfeasance led to an enactment directing the presiding officer of each House to certify to the presence of a constitutional quorum, and to passage by a constitutional majority. No bill was to be deemed passed unless so certified, and the certificate was to be conclusive evidence of the fact of passage. The courts helped to make this futile by declaring in some cases that the certificate could not control the Journals, though in another case holding the contrary.' So the Constitution is still dominated by what the Assemblymen think to be reasonable. Dangerous doctrine that, but significant!

The Germans are more discreet when they say in their Constitution of 1919, "The quorum to do business will be regulated by the rules of procedure."

If our quorum requirements are to remain unchanged, on the ground that their purpose is wise, at any rate that purpose ought then to be achieved. A quorum ought to be not only secured, but also held. In Congress no attempt is now made to go beyond getting a majority of the members to answer to their names. Many disappear as soon as they have responded, so that often no quorum will in fact be within the chamber when the call of the

196 N.Y. Supp. 876; 97 N.Y. Supp. 336; 185 N.Y. 107; 134 N.Y. Supp. 770; 138 N.Y. Supp. 1120.

roll ends. The doorkeeper has been ordered to close the doors, which is supposed to mean that members may be let in but not let out. As a matter of fact only the main entrances are shut, the lobby doors being as free as ever. None but the novice thinks of laughing at the farce. Massachusetts does the thing better. Once inside, a member has to stay until the Speaker orders the doors opened or benevolently responds to an individual appeal presented in the shamefaced way of a schoolboy asking that he may be excused. Legislators are a good deal like schoolboys anyhow. A little discipline now and then does them good.

CHAPTER III

THE BEGINNING OF BUSINESS

At the opening of the fourteenth century, when what we now know as Parliament had taken shape, almost all legislation was originated by the King. At the close of that century the petitions of the Commons seem almost to have engrossed the power of initiation. The custom of presenting private petitions to the Commons, desiring them to use their influence with the King, came in first under Henry IV, in the early years of the fifteenth century. These petitions were in the nature of what are known in England as private bills, matters half legislative and half judicial. Next to nothing can be learned of their routine, nor is more known of the procedure in the weightier matter of what were called the "common petitions" of the House. Undoubtedly, however, they went through the stages that appear to have been well established when the Journals begin.2

For a century and more it was the custom of the King to answer all the petitions of the Commons at the end of the session. Those to which his reply was favorable were then turned over to the law officers of the Crown for the framing of statutes. These officers did not hesitate to shape the statutes to suit the fancy of the King, perhaps to engraft their own notions, or even to frame laws in pretended response to petitions which in fact had never been made. Hallam gives an instance of this kind of fraud. An ordinance was put on the roll of Parliament, in the fifth of Richard II, empowering sheriffs of counties to arrest preachers of heresy and their abettors, and detain them in prison till they should justify themselves before the church. This was introduced into the statutes of the year; but the assent of Lords and Commons was not expressed. In the next Parliament the Commons, reciting this ordinance, declared that it was never assented to nor granted by them, but what had been proposed in this matter was without their concurrence (that is, as Hallam conceives, had been rejected by them), and prayed that this statute be annulled; for it was never their intent to bind themselves or their descendants to the bishops more than their ancestors had been 1 Stubbs's Const. Hist., 11, 590. • Ibid., 459 et sqq.

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