RESOLUTION AND SPEECH IN THE SENATE, ON THE ENROLMENT OF BILLS, MAY 16,
1862.
December 23, 1861, Mr. Sumner offered the following resolution,
and said that he would call it up for consideration some day
thereafter.
“_Resolved_, That the Committee on Enrolled Bills shall
consider the expediency of changing the Joint Rules of
the two Houses of Congress, so as no longer to require
that bills which have passed both Houses shall be enrolled
on parchment; but that they shall be simply copied in
a fair hand on linen paper, and be thus preserved in
the Department of State, instead of being preserved in
cumbersome rolls of parchment.”
May 16, 1862, the resolution was taken up for consideration.
MR. PRESIDENT,--There is a usage of Congress which must strike all
coming here for the first time, whether as members or spectators. It
is the usage, after bills have passed both Houses, of copying them on
rolls of parchment, when they receive the signatures of the Speaker
of the House, the President of the Senate, and the President of the
United States. Under our rules this is called _enrolling_, although
in England, where it originated, it was known, down to its recent
abolition there, as _engrossing_.
I have said that it is calculated to arrest attention. This is because
to most persons it is a novelty, although old in itself. On inquiry,
I do not learn that it is continued in any of our States except
Massachusetts. In the new States of the West it has never been known.
The question which I now submit is, Whether it is wise for Congress
to continue this embarrassing form, already discontinued, or never
adopted, by the State Legislatures?
* * * * *
Among the Joint Rules of the two Houses is the following, entitled
“Enrolled Bills.”
“After _a bill_ shall have passed both Houses, it shall be
duly _enrolled_ on parchment by the Clerk of the House of
Representatives, or the Secretary of the Senate, as the bill
may have _originated_ in the one or the other House, before it
shall be presented to the President of the United States.”
This was adopted as early as 6th August, 1789. Shortly before this
date, at the recommendation of Senators Morris, Carroll, Langdon, Read,
and Lee, a joint resolution was passed, requiring the Secretary of the
Senate and the Clerk of the House, within ten days after the passing
of every Act of Congress, to authenticate printed copies thereof, and
lodge them with the President.[316] In September, 1789, a statute was
passed to provide for the safe keeping of the acts, records, and seal
of the United States, by the first section of which the Department of
Foreign Affairs was changed to the Department of State. The Secretary
of the Department thus remodelled was made custodian of all bills,
orders, resolutions, or votes of Congress approved by the President,
or having become laws or taken effect without his approval, with
directions to publish the same in the newspapers, to cause one printed
copy to be delivered to each Senator and Representative, and two
printed copies, duly authenticated, to be sent to the Governor of each
State, and to “carefully preserve the originals.”[317] This latter
service has been executed by binding the enrolled copies of the acts of
each session in separate volumes, without rolling or folding the skins
of parchment, and depositing them in a fire-proof vault, under the
immediate charge of an officer of the State Department, known as Clerk
of the Rolls.
The enrolment of bills requires special care, and sometimes even delays
legislation. From the haste with which the transcription is often made
and the amendments are embodied, errors naturally occur. Perhaps these
cannot be entirely avoided by copies on paper. Indeed, nothing can
supersede the necessity of great vigilance, whether paper or parchment
be employed.
* * * * *
The main reason for enrolment on parchment, when first adopted by
Congress, was English example. Technical phrases, tautologous terms,
absurdities of law Latin and law French, all these, together with our
jurisprudence, were borrowed directly from England, and with them came
parchment, the use of which antedated these peculiarities. Of course it
was before the manufacture of paper in England, which was not earlier
than the reign of Henry the Seventh, and it was continued long after
the manufacture had rendered it unnecessary.
In Antiquity other substances were employed; but among European
nations in modern times, previous to the invention of paper, parchment
prevailed. In England, every manuscript, every book, every deed,
every indenture, every contract, every record, judicial or other,
was on parchment. So, also, was Magna Charta, wrung from King John
in 1215, and still exhibited as a venerable curiosity in the British
Museum. It must have been the case with the statutes and proceedings
of Parliament; for, in fact, there was little else on which they
could be written. These proceedings, together with the statutes,
constituted what were called the Rolls of Parliament,--_Rotuli
Parliamentorum_,--and they were preserved apart, with other parchment
records. There is a verse of Scripture which has been quoted as
describing the place where they were kept: “Darius the king made a
decree, and search was made in _the house of the rolls_, where the
treasures were laid up.”[318]
The durability of parchment is attested by the manuscripts which
illumine the great libraries of Europe. Among the treasures of the
Vatican is a Virgil of the fourth century, and in the National Library
of Paris is a Prudentius of an early date, both in a condition to
survive the structures in which they are preserved. Abbeys, convents,
churches, built with pious skill, have crumbled to dust, while their
parchments continue to defy the tooth of Time. But this peculiar
durability, so important before the invention of printing, when copies
were few, has played its part.
Parchment soon gave way to paper in judicial proceedings and records,
probably from considerations of economy and convenience; but it
continued longer in parliamentary proceedings. The Journals of the
House of Lords, which have always been held to be public records, were
formerly “recorded every day on rolls of parchment.”[319] The original
usage with regard to the Journals of the other House seems to have
been different; for we find in 1621, the year after the sailing of our
Pilgrim Fathers, an express order that the Journals of the House of
Commons “shall be reviewed and recorded on rolls of parchment.”[320]
Notwithstanding the order, this usage does not appear to have prevailed
with the Commons, and it was long ago discontinued by the Lords. But
the statutes continued to be engrossed on parchment, and placed in the
custody of the “Master of the Rolls.”
* * * * *
According to English practice, engrossment took place after the report.
But at last, in 1848, it was thought advisable to make a change. The
whole subject occupied committees of both Houses, and finally of
Parliament itself. Even at the cost of details which may be wearisome,
I present the history of these proceedings, which will be interesting,
at least, as showing the care which presided over this transition, and
also a possible guide to us.
On the 4th of September, 1848, the day before the prorogation of
Parliament, it was ordered in the House of Lords,--
“That the Clerk Assistant be directed, in communication with
the proper authorities of the House of Commons, to take such
preliminary steps as may be necessary, so as to enable the
House, if it shall so think fit, at the commencement of the
next session, to dispense with the present form of engrossing
bills, and to transmit and to receive printed copies of the
same.”[321]
The Clerk Assistant, thus directed to report, was John George Shaw
Lefevre, Esquire, brother of the accomplished Speaker of the House of
Commons.
On the third day of the next session, February 6, 1849, the Lord
Chancellor informed the House of Lords,--
“That the Clerk Assistant had prepared and laid on the table,
in obedience to the resolutions of this House, a report of the
result of his communication with the authorities of the House
of Commons on the subject of dispensing with the present form
of engrossing bills.”[322]
A select committee to consider the proposed change, was appointed,
consisting of the Lord Chancellor, Lord Privy Seal, Duke of Richmond,
Earl of Shaftesbury, Lord Beaumont, and Lord Monteagle of Brandon.
It is probable that they adopted at once the suggestions of the Clerk
Assistant, as, within a few hours after their appointed meeting, their
Chairman, the Lord Chancellor, reported to the House of Lords, February
8, 1849, that the Committee had met and considered the subject-matter
referred to them, and united in recommending, “That it is expedient to
discontinue the present system of engrossing, and to alter the present
system of enrolling bills”; and they reported provisions, in lieu
thereof, to which I shall refer.
The House of Lords adopted the report, passed the resolutions, and
ordered that they be communicated to the Commons at a conference, and
their concurrence desired.[323]
On the 9th of February, managers of the conference were appointed.
Those representing the House of Lords were the Lord Privy Seal, Earl
Waldegrave, Earl Saint Germans, Viscount Hawarden, Lord Bishop
of Hereford, Lord Beaumont, and Lord Monteagle of Brandon. The
managers representing the House of Commons were Sir George Grey,
Sir Robert Peel, Sir Robert Harry Inglis, Mr. Herries, Mr. Wilson
Patten, Mr. Bernal, Sir John Yarde Buller, the Earl of Lincoln, Mr.
Attorney-General, the Earl of Arundel and Surrey, Mr. Thornely, Mr.
Maitland, Mr. Hume, Mr. Mackenzie, the Judge Advocate, and Sir John
Young.
Omitting other details, I come at once to the resolutions afterwards
adopted in both Houses.
“1. That, in lieu of being engrossed, every bill shall be
printed fair immediately after it shall have been passed in the
House in which it originated, and that such fair printed bill
shall be sent to the other House as the bill so passed, and
shall be dealt with by that House and its officers in the same
manner in which engrossed bills are now dealt with.
“2. That, when such bill shall have passed both Houses of
Parliament, it shall be fair printed by the Queen’s printer,
who shall furnish a fair print thereof on vellum to the House
of Lords before the royal assent, and likewise a duplicate of
such fair print, also on vellum.
“3. That one of such fair prints of each bill shall be duly
authenticated by the Clerk of the Parliaments, or other proper
officer of the House of Lords, as the bill to which both Houses
have agreed.
“4. That the royal assent shall be indorsed in the usual form
on such fair print so authenticated, which shall be deposited
in the Record Tower, in lieu of the present engrossment.
“5. That the copies promulgated in the first instance by the
Queen’s printer shall be impressions from the same form as the
deposited copy.
“6. That for the present session this arrangement shall not
apply to private bills, nor to local and personal bills, which
last mentioned bills, intended to be brought in this session,
have been for the most part already printed, in pursuance of
the standing orders of the House of Commons.
“7. That the Master of the Rolls shall, upon being duly
authorized in that behalf, receive, in lieu of the copies
of public general acts as now enrolled, the herein
before-mentioned duplicate fair print of each public general
bill, to be held for the same purposes and subject to the
same conditions for and upon which the enrolled acts are now
received and held by him.
“8. That it is expedient, with a view to economy, convenience,
and dispatch, and to the diminution of the chance of errors,
that one printer should print the public general bills for both
Houses; and that, inasmuch as the Queen’s printer is, by virtue
of his office, bound to print the acts, it would be advisable,
for the attainment of the before-mentioned objects, that the
Queen’s printer should be employed by both Houses to print the
public general bills.”[324]
Later in the same session of Parliament, the House of Commons passed
the following resolution, which was agreed to by the House of Lords on
the 31st of July, 1849.
“That the arrangement contained in the resolutions agreed to
by both Houses of Parliament on the 12th day of February last,
relative to the engrossing and enrolling of bills, (except
so much thereof as relates to the expediency of one printer
printing the bills for both Houses,) shall in future sessions
apply to local, personal, and private, as well as to public
bills.”[325]
Thus in England the old system of engrossing and enrolling has
disappeared. It is true that the bill, in its last stage, is printed on
vellum; but the ancient cumbersome proceeding is abolished.
* * * * *
I have referred especially to English practice, because ours was
originally derived from it. But the example of a nation so truly
enlightened as France may be properly adduced also. The ordinances
of the kings of France were engrossed on parchment down to the reign
of Louis the Fourteenth, when his great minister, Colbert, contented
himself with having them copied in a fair hand on folio paper, and
bound in large volumes. The voluminous ordinances of the Grand
Monarch on the Government of Canada, and of the Mississippi Valley,
then recently discovered, are still preserved in the _Archives de la
Marine_ at Paris, each one bearing the signature of the sovereign, and
countersigned by his minister. Thus in France, even before the great
changes of the Revolution, parchment was discarded, and I am not aware
that it is now used either in judicial or legislative proceedings.
The records and documents, all fairly copied on paper, are admirably
preserved, untouched by time or damage of any kind, and in better
condition than some of our own public documents written within the
last ten years. I do not forget that the clerks of the last century
wrote with carefully prepared ink on linen paper. Bad ink and cotton
paper must, of course, be avoided, especially where metallic pens are
employed to tear the surface and open the way for the deleterious fluid.
* * * * *
If disposed to follow the examples of England and France, and of our
own States in their local Legislatures, we shall make a change. Nor
is there any reason of utility or convenience in favor of parchment.
I know that a vellum page is a luxury, coveted always by the refined
book-collector; but it has long since ceased to be anything else.
Paper is good enough and durable enough for all practical purposes.
Volumes of the fifteenth century, among the first fruits of the newly
discovered art of printing, are found now in as good condition as when
their paper was first blackened by types; and there are manuscripts,
not merely on parchment, but also on paper, older than the discovery of
America, in as good condition as the Journals of the Senate.
Even if paper were less permanent than parchment, the latter becomes
entirely superfluous since the practice was established of printing the
statutes under the supervision of the Government. It is well known that
public statutes require no proof besides the printed statute-book.[326]
This was an original principle of English law, which has been adopted
and fortified among us. Professor Greenleaf, who is such authority on
the Law of Evidence, thus exhibits the value of the printed copy:--
“It is the invariable course of the Legislatures of the several
States, as well as of the United States, to have the laws and
resolutions of each session printed by authority. Confidential
persons are selected to compare the copies with the original
rolls, and superintend the printing. The very object of this
provision is to furnish the people with authentic copies; and,
from their nature, _printed copies of this kind, either of
public or private laws, are as much to be depended on_ as the
exemplification verified by an officer who is a keeper of the
record.”[327]
Summing up the whole case, we find that the present system has its
origin in ancient usage, the reason of which has long since ceased;
that there is no necessity for its continuance; that it is contrary to
convenience; that it is contrary to the example of France, and even of
England, whence it was derived; that it is contrary to the usage of our
own States, in their legislative action; and that a change would do
something, at least, to simplify our proceedings.
Paper is of all qualities, and of every degree of durability. Besides
rags, there are many other substances out of which it is made, so
that even the increasing demand meets a corresponding supply. It is
always cheap, and entirely convenient. To reject it for parchment is
as if we imitated the early Arabs, and inscribed our statutes on the
shoulder-blades of sheep. The skin is less antediluvian than the bone,
but both are out of place in our age.
Should the change be deemed advisable, it might be made by substituting
the words “linen paper” for “parchment,” in the sixth Joint Rule. This
would be simple enough: but the phrases “engrossed” and “enrolled”
would still remain in the rules, although the occasion for them had
passed. In the British Parliament, the old form of question, “That this
bill be engrossed,” which always followed after the Committee of the
Whole, is now dispensed with;[328] and it seems to me that we might do
something to simplify our proceedings in this respect, also.
* * * * *
I have here a complete collection of bills, as printed, at their
different stages in the two Houses of Parliament, as follows.
Bill as delivered to each member of the House of Commons.
House copy of bill originating in the Commons.
Bill as presented by the Commons to the Lords, after passing the
Commons.
Bill as delivered to each peer.
House copy of bill originating in the Lords.
Bill as presented by the Lords to the Commons, after passing the Lords.
Bill on vellum, as passed both Houses, and ready for the royal assent.
All these I shall, if he will allow me, hand over to the Chairman of
the Committee on Enrolled Bills, who will do something, I trust, for
the improvement of our rules in this respect.
The resolution was adopted, but no report was ever made by the
Committee.