MR. PRESIDENT,--What is a quorum depends upon the Constitution; but
we approach its consideration with the knowledge that in England, the
original home of our institutions, and especially of Parliamentary Law,
the question, for a long period anterior to the National Constitution,
was fixed by usage. Indeed, usage is authority for the larger part of
the English Constitution. But in this case of a quorum the usage is
liable to alteration. In his elaborate work on the Law and Practice of
Legislative Assemblies, the Parliamentary Law on the subject is thus
stated by Mr. Cushing:--
“In the British Parliament, according to the ancient and
invariable usage of the two Houses, as evidenced by their
rules, three is the number necessary to constitute a quorum of
the Lords, and forty a quorum of the Commons. These numbers,
respectively, although established by and dependent upon usage
merely, and within the power of each House to abrogate or
change at any time, have, nevertheless, the force of standing
orders; that is, they are equally binding upon every succeeding
Parliament until abrogated, and do not require to be specially
adopted in order to be in force.”[97]
It will be observed that the quorum of the Commons, numbering six
hundred and fifty-four persons, is only forty, and this number appears
to have been recognized as long ago as 5th January, 1640. At an earlier
day more than sixty was required, and as late as March 18, 1801, an
attempt was made in the Commons to revive this ancient rule, but it
failed. For a short time in 1833 and 1834 the quorum for private
business was twenty.[98]
The quorum of the Lords, numbering four hundred and sixty-five, is only
three. A spectator at the law sessions of the Upper House is struck
by the appearance of the Lord Chancellor on the woolsack, in wig and
gown, listening to arguments, with two lay lords, like two lay figures,
on the side benches, merely to constitute a quorum so as to legalize
the decision of the Chancellor. The origin of this quorum, having
the sanction of unbroken usage, is lost in the night of Antiquity.
It is probably founded on the ancient maxim of the Roman Law, _Tres
faciunt collegium_,--“Three make a _college_,”--the latter word being
equivalent, in some respects, to our word _corporation_.
Thus, according to Parliamentary Law, two things appear: first, the
quorum of each House is within the control of the House; secondly,
it is now, and always has been, in each House, much smaller than a
majority.
With us the quorum, in general terms, is fixed by the Constitution.
It is not left to usage, or the control of each House; but it
is reasonable to infer that any question on the meaning of the
Constitution, arising from generality of language, may be interpreted
in the light of Parliamentary Law. Indeed, this is only according
to the rule under which all technical words in the Constitution are
interpreted. For instance, words known to the Common Law or to the
English Chancery are interpreted according to the Common Law or
the English Chancery. Mr. Wirt, in his admirable argument on the
impeachment of Judge Peck, states the rule in these words:--
“The Constitution secures the _trial by jury_. Where do you
get the meaning of a _trial by jury_? Certainly not from the
Civil or Canon Law, or the Law of Nations. It is peculiar
to the _Common Law_; and to the Common Law, therefore,
the Constitution itself refers you for a description and
explanation of this high privilege, _the trial by jury_, and
the mode of proceeding in those trials.… I insist, that, the
moment that _a Court of Common Law_ or _a Court of Equity_ is
established under the authority of the Constitution, its modes
of proceeding and its powers of self-protection arise with
it, and that the _very name_ by which it is called into being
authorizes it to look at once to the English archetypes for its
government in these particulars.”[99]
According to this rule, so clearly enunciated, the words “quorum” and
“House,” which are derived from English Parliamentary Law, may be
explained by that law; so that, in case of doubt, that law is for this
purpose embodied in the Constitution. Now the Constitution declares
that _a majority of each House_ shall constitute a quorum to do
business. The rule, it will be observed, is the same for each House.
But the question arises, What is a majority of each House? or rather,
putting aside all question with regard to the House of Representatives,
which is perfectly free to determine for itself, What is a majority of
the Senate?
In fixing the quorum at a majority rather than any smaller number,
our Constitution followed the law of business corporations, where a
majority always prevails, according to an old maxim of the Common
Law,--_Ubi major pars est, ibi est totum_,--“Where _the greater part_
is, there is the whole.” This rule is so reasonable, that it has been
vindicated by an eminent authority as founded on the Law of Nature.
Here are the words of the great jurist Savigny:--
“The will of a corporation is not merely the concurring will
of all its members, but even that of the greater number.
Therefore the will of a majority of all its existing members
is to be regarded as being properly invested with the rights
of the corporation. This rule is founded on the Law of Nature,
inasmuch as, if unanimity were demanded, will and action on the
part of a corporation would be quite impossible. It is also
confirmed by the Roman Law.”[100]
Thomas Jefferson, a very different person from the German jurist, has
also vindicated the rule.
“The _Lex majoris partis_ is founded in Common Law as well as
common right. It is the natural law of every assembly of men
whose numbers are not fixed by any other law.”[101]
But the question still occurs, What is the major part of the Senate? Is
it the major part of the abstract or theoretical Senate, or the major
part of the real Senate? In other words, is it the major part of the
Senate contemplated by the Constitution, with two Senators from each
State, or the major part of the actual Senate, counting only those
entitled to vote? At the present moment there is a wide difference
between the two cases.
Several clauses of the Constitution are applicable to this question. I
group them together.
“The Senate of the United States shall be composed of two
Senators from each State, chosen by the Legislature thereof for
six years.”
“_A majority of each House_ shall constitute a quorum to do
business.”
“The Congress, whenever _two thirds of both Houses_ shall deem
it necessary, shall propose amendments to this Constitution.”
“A quorum for the purpose [the election of Vice-President]
shall consist of two thirds of _the whole number of Senators_,
and a majority of the whole number shall be necessary to a
choice.”
Probably “the whole number of Senators” is equivalent to the term
“House.” But what is the “House”?
The Senate _de jure_ consists of two Senators from each State.
The Senate _de facto_ may consist of Senators actually elected and
qualified, or of Senators actually elected.
Whether the “House” shall be the Senate _de jure_ or the Senate _de
facto_ is now within our discretion. The question has been raised,
and the way is open to adopt either interpretation, according to the
meaning of the Constitution as seen in the light of Parliamentary Law,
and, I add also, of convenience.
According to Parliamentary Law, the whole question is in our hands.
According to convenience, the quorum should be founded on the actual
Senate, being the Senators actually elected and qualified.
If ever the argument of convenience was strong, peculiarly strong, it
is now, when a wicked rebellion has undertaken to withdraw the Senators
of eleven States, thus reducing our numbers. It is not necessary to
assert that these States should be no longer counted among our stars.
It is enough, if we declare that their vacant chairs shall no longer
be counted in our quorum. As the language of the Constitution is drawn
into debate, I cannot doubt, that, according to Parliamentary Law, the
present question is within the control of the Senate, to be determined
by the teachings of reason and convenience, so as to assure the public
welfare. Any other interpretation must leave the Senate to all the
hazards of disorganization by treason, or, it may be, by indifference.
If the Senate declines to exercise this power, it will abandon an
essential principle of self-defence.
An extreme case might be put, where, through defection, the actual
Senators are reduced to a mere handful. But the rule is not to be tried
by any such extreme case, which can occur only when the Government is
broken up.
I rest confidently on the double conclusion: first, that the words of
the Constitution with regard to the quorum of the Senate, so far as
doubtful, are to be interpreted by Parliamentary Law; and, secondly,
that, by Parliamentary Law, these words are within the control of the
Senate, to be interpreted according to its own ample discretion under
the exigency of the occasion.