« AnteriorContinuar »
practice continued. Apparently New Yorkers had not felt keenly the injuries suffered by other colonies at the hands of royal Governors, which had led the framers of previous Constitutions either specifically to deny the Governor the right of prorogation or else, while silent on that point, to give the power of adjournment to the Legislature. The New York Convention thought it protection enough, while giving the Governor the right of prorogation, to provide that the prorogations should not exceed sixty days in the course of any one year. George Clinton, the first Governor of New York under the Constitution, prorogued the first Legislature twice before it actually met, and Governor Tompkins exercised the power once, in 1812. It was not perpetuated in the second Constitution.
In Massachusetts either branch was to be able to adjourn itself for not more than two days at a time, and the Governor was to adjourn or prorogue to any time the two Houses should desire; he was to prorogue for not more than ninety days in any one recess, a provision that disappeared when in 1831 annual sessions were substituted for semi-annual; in case of disagreement between the two Houses, the Governor, with advice of the Council, could "adjourn or prorogue" for not exceeding ninety days. New Hampshire in 1784 copied the Massachusetts provisions. When Vermont in 1836 created a senate, it provided that if they disagreed about adjournment the Governor might adjourn them to such time as he should think proper. In about half the States the Governor now has like authority, with, as a rule, the restriction that he must not adjourn beyond the first day of the next regular session, but in Delaware he may not adjourn more than three months, in Kentucky and Pennsylvania more than four months, and in Georgia there is the unique provision that he may adjourn either or both Houses. In South Carolina if either House remains without a quorum five days, the Governor may adjourn to a time not beyond the date of the next annual session.
Thirty-six of the States now forbid either House to adjourn for more than three days without the consent of the other; seven say for more than two days. Apparently Massachusetts and New Hampshire are the only States where the Houses acting jointly may not adjourn themselves as they see fit. The amendment adopted by Massachusetts in 1918 permits recesses by concurrent vote, not exceeding thirty days in the aggregate and all within the first sixty days of the session, but for the rest of the session the two-day limit prevails. The restriction is often an awkward obstacle to reasonable adjournments, compelling evasion by sittings at which with common consent no business is transacted nor attempt made to get a quorum; yet it has at least the merit of saving quarrels between the branches. Missouri is singular in a provision dating from 1865 to the effect that an adjournment or recess of the General Assembly for more than three days shall have the effect of and be an adjournment sine die; and that an adjournment for three days or less shall be construed as not interrupting the session, "but as continuing the session for all the purposes mentioned in section sixteen of this article" the section about the per diem of members.
When the Constitution of the United States was framed, State precedents were followed in this provision: “Neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting.” In case of disagreement between the Houses with respect to the time of adjournment, the President may adjourn them to such time as he shall think proper. Occasion arose for an appeal to President Wilson to use this power, and there may have been previous instances of the same sort, but no President has ever used it. Andrew Jackson, however, reminded Congress of its existence and nature. In 1836, when he refused to sign the bill that would have set the second Monday in May for the adjournment of the first regular session of each subsequent Congress, he cited the constitutional provision about his power in case of disagreement between the Houses, as one with which the bill was not in accord. His opponents, among the ablest and strongest men in the Senate, could muster only 16 Yeas to 23 Nays, and so the bill was rejected. Thereupon the House virtually admitted the force of Jackson's contention by passing a bill providing for assemblage November 1, with reference to adjournment omitted, the measure, however, failing to become law.
As matter of curiosity rather than because of any real significance, it may be interesting to note that at least two States see fit to determine with precision the hour for ending a session. Michigan put into her Constitution of 1850 : “The Legislature, on the day of final adjournment, shall adjourn at twelve o'clock
noon." New Mexico copied this in 1910. Arkansas had the same provision in her Constitution of 1868, but dropped it in 1874. The rejected New York Constitution of 1867 contained it. When Cass was a United States Senator and Benton in the House, they urged that Congress expired at 12 midnight of the 3d of March, that no formal adjournment was necessary, and that it was the duty of the presiding officer to leave the chair. Speaker Carlisle, in April, 1888, said it had since then been the invariable practice of the House, and he thought it was so before, to remain in session on the legislative day of March 3 until 12 m. of March 4. The practice continues.
In nearly all the rest of the world where representative institutions are found, the power of dissolution is an important adjunct of the system of ministerial responsibility, being the means of an appeal to the electorate, to find out whether the balance of parties has shifted. Germany was an exception while an empire. There the lower branch could be dissolved at any time by the upper branch, with the consent of the Emperor. The result was to develop the power of dissolution into a means for breaking down resistance in the lower branch, and it was so used on several noteworthy occasions. Under the new Constitution the National Assembly is to determine the close of sessions, but the President of the Commonwealth may dissolve it, though he may not take this step twice for the same cause. In Prussia the Diet may be dissolved by itself; or by a majority of the Prime Minister, the President of the Diet, and the President of the Council of State; or by a referendum invoked by popular initiative or the Council of State. In Czecho-Slovakia the President has the right to dissolve, though not in the last six months of his term. Poland provides for dissolution by a two-thirds vote of the Sejm, or by the President with the consent of three fifths of all the Senators, in each case the Senate being automatically dissolved, but the session handling the budget cannot be closed before the budget has been voted. In Jugoslavia the King may dissolve if the State budget has been fixed and if the decree is signed by all the Ministers. In Austria the Nationalrat may dissolve itself. A French President cannot dissolve the Chamber without the consent of the Senate, and the failure of that body to exercise this power of control is held to be in part responsible for the frequent changes of Cabinets.
Protection against coercing or stilling the legislative branch by prolonged or repeated adjournments is in France found in the provision that though the President may adjourn the Houses, it must not be for more than a month nor can it take place more than twice in the same session. The restriction on the President of Poland and the King of Egypt is likewise, except that neither can adjourn the same ordinary session more than once.
The President of Czecho-Slovakia may prorogue Parliament for not longer than a month, but not more frequently than once a year.
The Irish Free State leaves adjournments in the control of Parliament, the lower branch being empowered to end sessions, save that the sessions of the Senate may not be concluded without its consent. The Constitution follows the British policy of putting the power of dissolution in the hands of the Executive, stipulating that the Representative of the Crown, who is entrusted with the function as a matter of form, shall never exercise it save on the advice of the Executive Council. Nevertheless this policy, one of the most venerable of British institutions, is nowadays by no means universally approved in England itself. On the contrary, there are those who see in it the most serious menace of parliamentary government. Herbert Sidebotham points out' that each dissolution fines each member a thousand pounds in election costs, a fine that tells heavily against the free and independent Parliament the country wants. The vote that brings about a General Election may prejudice half a dozen other reforms of moment. The suggested remedy is a Parliament chosen for three, four, or five years, to sit for its natural term unless it agrees by a vote that it cannot carry on. If one Ministry fails, let another be tried.
1 Political Profiles, 253–56.
ELECTION AND QUALIFICATION
THE first requirement for admission to an elected lawmaking body is that the applicant shall have been duly elected.
For nearly three hundred years after the shaping of Parliament as we now know it, seats in the House of Commons were not prized enough to make of much importance the question of who should decide election contests, and the matter appears to have been left to the King in Council. Under the Tudors the situation changed, and we find the Commons coming to think it their right to determine their membership themselves. In Mary's time they appointed a committee to inquire whether Mr. Alexander Nowell, prebendary of Westminster, might be a member, and the next day it was declared that as he had a voice in Convocation, he could not also sit in the House.
Under Elizabeth their right to determine contested elections was definitely established. It was in 1586 that she ordered the Speaker to signify to the House her displeasure that it had been "troubled with a thing impertinent for them to deal with, and only belonging to the charge and office of the Lord Chancellor, whom she had appointed to confer with the judges about the returns for the county of Norfolk, and to act therein according to justice and right.” Nevertheless, the House appointed a Committee to examine into the returns, and this committee reported that “they had not thought it proper to inquire of the Chancellor what he had done, because they thought it prejudicial to the privilege of the House to have the same determined by others than such as were members thereof. And though they thought very reverently of the said Lord Chancellor and judges, and knew them to be competent judges in their places; yet in this case they took them not for judges in Parliament in this House.” This was agreed to by the whole House.
James the First had no intention of submitting to such an inroad on his prerogatives if he could help it. So when he issued the proclamation calling together his first Parliament, he directed