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02/12/04 |
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from "Elements of the Law and Practice of Legislative Assembles of the United States of America"
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In his book, Elements of the Law and Practice of Legislative Assembles of the United States of America, Luther Cushing deliberates upon the origins of the committee of the whole house. Here, in the Appendix of this fully comprehensive history of the elements of legislative assembles, Cushing shows how the committee of the whole was not a given thing. In fact, the committee of the whole house was an evolutionary process. Without further deliberation, here is the account by Luther Cushing:
Of Grand Committees and Committees of the Whole House.
The appointment of few members, selected from the whole body, furnishes so obvious and convenient a means of facilitating the transaction of business, in a legislative body, or other deliberative assembly, that it would be strange not to find the employment of committees a common practice in both branches of parliament, from the earliest period. Accordingly, in most ancient of the journals of the commons, which are now extant, and as early as the year 1554, there are entries of the appointment of committees (Comm. Jour. I. 35, 41); and its scarcely admits of doubt, that this mode of proceeding is as ancient, at least, as the separation of the commons from the lords, and their sitting apart as distinct branches of parliament.
The reason for the existence of those committees, which are now known as committees of the whole house, is not, however, equally obvious; and, indeed, if there never had been any other ground for the use of committees, than the increased facility for the transaction of business, resulting from the employment of a few selected individuals, in preference to a larger number, having no peculiar qualifications for the duty imposed upon them, committees of the whole, as they would possess no advantages in the way of business over the same members sitting as a house, would probably have never become an established mode of parliamentary procedure.
The origin and use of these committees must, therefore, be sought in some other source then the mere convenience of parliamentary procedure; and, by recurring to the history of the period when they were first introduced, it will be found, that they were the offspring of circumstances of a different character; and that they were invented, not to facilitate the passing of bills, in the ordinary course of legislation, but to afford means for bringing forward and discussing the great constitutional questions which were agitated in the parliaments of the first Stuarts.
In the first parliament of James, which meant on the 19th of March, 1603, the house of commons, “by reasons of more charters granted by his majesty, as also by their attendance in greater multitudes,” than had been usual, was more numerous than it had ever before assembled; among its members, were many of the most distinguished statesman, lawyers, and men of learning, as well as gentlemen of weight and character, in the kingdom; and, the assembling of a parliament, convened by a sovereign who united in his person the crowns of England and Scotland, and, and was the undisputed heir of the throne, was in itself and an event of more than common importance and interest to the whole people.
In an assembly of this size and character of this house of commons, it was almost a thing of course , that committees appointed for the consideration of important and weighty matters, should consist of as many members, at least, as could act with efficiency; and, where the principal purpose of a committee was to bring together information from all the different parts of the kingdom, with respect to the subject in hand; or where the matter referred was one, in reference to which the house could thereby testify their sense of its weight and importance; the selection of a large number of members for this service was an obvious means for the accomplishment of the object in view.
It appears, accordingly, from the journals of the house of commons, that several of the committees appointed during the first session of this parliament, were of extraordinary magnitude. Thus, the committee appointed on the fifth day of the session, to consider the three grievances suggested by Sir Edward Montague, consistent of all the privy counselors for members, and of fifty-seven others specially named (Comm. Jour. I. 151); a committee to confer with the lords, touching the union, consisted of one hundred members specially named (Ib. 172), and, being afterwards directed to attend the king, for the purpose of hearing him explain his meaning in the matter of the union (Ib. 179), was enlarge by the addition of forty-two members specially named, with liberty to any member of the house, though not named, to accompany them to the king (Ib. 180); a committee, to consider above the abuses of purveyors, consisted of forty-seven members specially named (Ib. 151); a committee on matters of religion was appointed of twenty-nine members, by name, and all the privy counselors who were members (Ib. 172, 173). Committees of this character were commonly designated as great, or grand committees (Ib. 215).
In the second and third sessions of this parliament, committees appointed to consider the topics above averted to, and others of a similar character,--such as the abuses of purveyors, matters of religion, and grievances,--also consisted of large numbers of members, and were known as the great or grand committees for religion, grievances, etc.; but, it was not until the third session, and in reference to a subject of a different character, that the committee was first appointed of the whole house.
In pursuance of an act passed at the proceeding session, an “instrument of the union” between the two kingdoms and signed and sealed by certain commissioners appointed for the purpose. This instrument being communicated to both houses, the lords requested a conference with the commons, in order that there might be some further proceedings in the business, and appointed a committee of forty to conduct the conference on their part. The commons, in answer, resolved not to confer, but to meet the committee of the lords with a committee of their own members, to the number one hundred and eleven, to hear what the lords should propound, and to report the same to the house (Comm. Jour. I. 324). Shortly afterwards, the subject was again brought forward in the house, and a discussion ensued as to what further proceedings should take place; and a motion was made, that the instrument of union should be first debated, and then committed, and that “the whole house from ( saving the commissioners) should be of the committee;” but the house acceded to the motion, only so far as to resolve that the instrument should be committed, and “that the committee named for the meeting with the lords should be read, and that those (with others added) should stand for a committee in this business.” The committee was then read, and enlarged by the appointment of forty-two members by name, and of all the lawyers of the house, the burgesses of all posts towns, and the knights and burgesses of all the northern counties (Ib. 326). Considering the size of the committee, as actually constituted, it can hardly be supposed, that the objection to a committee of the whole house had any reference of the increased number of which the committee would thereby be made to consist.
After some further proceedings between the two houses, a bill was presented to the house, by the speaker, ready drawn, for the continuance and preservation of the union, (Comm. Journ. I. 368,) which was read a first and second time, and moved to be committed. It was now again attempted, and with better success, to make the committee of the whole house; for, it being “affirmed, that if Mr. Speaker were absent, , the whole house might be a committee,” it was thereupon “thought fit to commit the bill to the whole house, Mr. Speaker only excepted” (Ib. 370, 371). It may be conjectured, from the terms, in which this order is entered in the journal, that the reason, why the motion for a committee of the whole was not successful, when previously made, was a doubt in the minds of the house, as to the regularity of such a proceeding.
It is probable, that this committee sat, like other great committees, in the house, when the house was not sitting; and it appears, from an entry in the journal, (Comm. Journ. I. 377) that on one occasion, at least, the committee sat in the court of wards, while the “speaker, with the officers, and sundry members of the house, being assembled, sat in the house, from eight o’clock until eleven; and then did arise and depart, without motion made or bill read.”
The bill being reported by the committee, and amended agreeably to their report, passed the house, and was sent to the lords. In that branch, it passed with amendments, and the bill and amendments were sent to the house for their concurrence (Comm. Jour. I. 387). The amendments, been twice read in the commons, were “committed to the great committee, named on the second reading of the bill itself in this house: And moved, that Mr. Speaker might depart, and the committee, being compounded of the whole house, and now together, and the business of the house very little, might (for saving of time) presently enter into consideration of their charge; which, after some dispute, whether it were fit or no, being without precedent, seldom moved, and carrying with it no decorum, in respect of Mr. Speakers ordinary and necessary attendance upon the house till eleven o’clock, grew to a question, namely, whether the committee should now sit, or in the afternoon, and resolved, upon question, they should meet in the afternoon, and not now” (Ib. 387, 388). It appears, from these proceedings, that the committee of the commons on this important bill “of hostile laws,” as it was called, was the first committee, which, in point of numbers, embraced the whole house, the speaker excepted; but it differed from modern committees of the whole, inasmuch as it was bought necessary to exclude the speaker expressly, and it was not considered as consistent with order and decorum, for the committee to sit, for, in other words, for the house to be turned into a committee, during any part of the time of the usual sitting of the house. It was not until the next, being the last, session of this parliament, that the house were able to get over the point of decorum, for the sake of convenience.
At the beginning of this session, general committees from (as they were called) were appointed for the consideration of all matters of importance; the form being usually, in the first place, to appoint certain members by name, then to add to them certain classes, as, for example, the privy council, or the lawyers, and lastly, a general clause, as, “any of the house to be admitted,” for “whosoever will come to have voice,” including the residue of the house. One of the committees of this session was a committee of the whole of tenures and wardships, which was directed to sit every other day in the house, to begin at seven or eight and to sit till half an hour after nine in the morning, and the house to sit till half an hour after eleven. This committee was probably the first that ever sat in the house, during the time assigned for the sitting of the latter; in consequence, no doubt, of its been found convenient, in order to enable the committee to finish their business on a given day, to continue the sitting on that day until after the time appointed for the house to sit; for, on the last day the committee sat, it appears from an entry in the journal, that “this day and committee for tenures, etc., sat till half an hour after eleven; the speaker, from nine, sitting in the clerk’s chair; the clerk standing at his back; and Mr. Recorder, the moderator of the committee, sitting on a stool by him” (Comm. Jour. I. 414); and, from the fact, that business was transacted in the house on the same day, it is certain that the house must have been resumed when the committee had concluded its labors. The innovation thus introduced very soon after became an established usage. At first, the practice was introduced for the general committees, which usually sat in the afternoon, to meet occasionally in the morning, and to sit till the speaker took the chair (Ib. 422); at length it was perceived, that any of the committees of the whole, without impropriety, but greatly to the convenience of the house, might be directed to sit, at any time, during the sitting of the house; the speaker when the practice first began retiring from the house to the committee chamber, and returning and resuming the chair, but, at last, merely sitting down, without leaving the house, and again ascending the chair whenever it was necessary or proper that the house should be resumed (Ib. 429). During the residue of this session, committees of the whole were frequently appointed, sitting sometimes like other committees in the afternoon, and sometimes like committees of the whole, in more modern times, during the setting of the house. The practice became still more general in the parliaments subsequently called by James and his successor; and, in the fifth of the latter sovereign,--the celebrated long parliament,--committees of the whole became, what they now are, a part of the regular and established system of parliamentary procedure.
In the foregoing remarks, the history of the introduced and establishment of this form of proceeding has been traced. It remains now to be seen what advantages, if any, it possessed over the ordinary mode; for, except that furnishes an occasional relief to the speaker, and that members are allowed, in committee, to speak more than once to the same question, it is difficult, at the present day, to perceive any other difference between the house, and a committee of the whole house, than that the speaker presides in the former, and chairman in the latter.
The appointment of large committees, which, as has been seen, was quite common, if it did not commence, in the first parliament of James I.-a custom originally practised, perhaps, more for the purpose of testifying in the interest of the house in the measure or subject referred, than with a view to a more efficient action,-was very soon discovered to be the most efficacious means of accomplishing the purposes which the great parliament leaders of the commons, in the reigns of the first Stuarts, had in view. A committee, however large, was still but a committee; it could not proceed, indeed, without the authority of the house; but, once appointed and authorized, it could then proceed, even in matters of the highest importance, with a degree of freedom and independence wholly unattainable at that time, consistently with the forms of preceding in the house.
The presiding officer of the house was the speaker. He was elected, indeed, by the house; but the election was made by the voices, and not by ballot; the nomination always came from some one of the great officers of State; and the speaker elect, if not agreeable to the king, might be rejected by him. It could hardly be expected that this officer, deriving his honors, in the first instance, from the influence of the sovereign, and looking forward to further favors from the same source, should be inclined, or, if willing, should be able, to hold an even balance between royal preropative on the one hand, and the rights of the people on the other. We accordingly find that the official influence of the speaker was sometimes, at least, exerted in favor of the prerogative; he considered it is duty, when commanded by the king, to adjourn the house, without putting a question (Comm. Journ. I. 375, 376); he thought it not beneath his dignity to go to the king, when sent for, to inform him of the proceedings of the house, and to take with him “a little note of the clerk’s book,” for the same purpose (Ib. 500); and being, ordinarily, a member of the king’s privy council, he could not but be fully acquainted with all the plans and measures of the court party.
The clerk of the house, originally, in fact, and to this day, in name, the under clerk of the parliament, appointed to attend on the commons, held his office, not by the election of the house, but by a patent from the king, for his life, and with power to make, and discharge the duties of his office by, a deputy. Such an officer would not be likely to withhold the records and papers of the house, then in his personal custody, and not kept in any building or apartment belonging to the house, or under its control, from the inspection of the sovereign borders or his council; and it is matter of history, that the clerk of the house, in the third parliament of James I., By the king’s command, attended with his journal book, at a meeting of the council, where the king, with his own hand, tore out the record of the famous protestation of the commons concerning their privileges, which the house had solemnly directed to be entered in the journal, there to remain of record. (Hansard, Parl.H. I. 1361, 1362; Comm. Journ. I. 668).
The sergeant-at-arms, also, was an officer appointed by the king, and holding his office at the king’s pleasure. His functions, as the executive officer of the house, were by no means unimportant. It was a part of his duty to take care that no strangers to witness the proceedings, to keep the doors and avenues of the house for the free access and departure of the members, to serve all the warrants and processes of the house, and to have the custody of all persons arrested and brought before the house by its order. Is not probable that this functionary ever had it in his power to exercise much, if any, influence upon the proceedings of the house; but, as an officer appointed by the sovereign, and dependent on him, his feelings may not unreasonably be supposed to be on the side of the crown, rather than on that of the people.
If the officers of the house were thus, to greater or less degree, exposed to the influence of the power of the crown, and therefore liable to become subservient to those by whom it was wielded, the forms of proceeding were not less unfriendly to a free, full, and independent discussion of topics, which might be distasteful to the sovereign. It was in the power of the individual members to introduce such topics as they pleased, and to submit motions and questions for the consideration of the house; but it was the usual, and doubtless consideration the more regular course, for the speaker himself to frame the question, from the turn of the debate, whether motions were made were not; and thus the questions submitted to the house, were greatly in the power of the speaker, and of those above the chair. The rule, also, that no member should speak more than once to the same question, which, as a rule of order, was strictly observed in the house, though sufficient, perhaps, where a subject had been so matured, that nothing remained but to say yes or no to it, was not by any means favorable to those discussions, which were necessary to mature any business for the decision of the house. A third circumstance, connected with the forms of proceeding, was the matter in which the clerk of the house performed the duties of his office. During all the parliaments of James, and the first three of Charles I., the journals contain not only the votes, orders, and resolutions of the house, and the reports of the committees, but also short notes of the speeches and motions of the members. This practice seems to have been pursued by the clerk, either because he considered it a part of his official duty, or because it was an acceptable service to those whom he derived his appointment; but, as appears by the following proceeding, it seems never to have been sanctioned by the house. In the third parliament of Charles I., April 17, 1628, the lords having sent a message to the commons, requesting that the clerk might attend the lords, with the journal book of a proceeding parliament, touching “something then delivered by a learned member” of the commons, relative to a certain bill, the commons made answer, “that there was no resolution of the house, in the case mentioned; and that the entry of the clerk, of particular men’s speeches, was without warrant at all times, and, in that parliament, by order of the house, rejected and left; and therefore not thought fit to be sent up to their lordships.” (Comm. Journ. I. 884.) The method of taking notes and making entries, as practiced by the clerks in the parliament above mentioned, appears to have been introduced with the first parliament of James; the journals of the commons in the reigns of Elizabeth and her predecessors, as far back as the journals are extant, contain only minutes of the things done and passed in parliament, but no notes of what was said or proposed by any of the members; the new method continued only until the third parliament of Charles, in which the commons resolved, that the entering of particular men’s speeches, was without warrant at all times; and it appears to have been laid aside about the time of the passing of that resolution. The last circumstance to be mentioned, which was not without its influence upon the action of the house, was the secrecy with which all the its proceedings were required to be conducted. Strangers, as all but members were called, were carefully excluded from the sittings; and it was a breach of privilege, then and long afterwards, punishable with great severity, for any of the members to divulge or publish an account of what took place within the walls of the house. While, therefore, the king had all the knowledge of what was passing in the house, which could be derived from an inspection of the clerk’s books, and from the oral communications of the speaker, or other members of council, the people were as carefully kept in ignorance of what it equally concerned them to know.
According to the constitution of ordinary committees, and the rules proceeding, by which they were governed, none of these inconveniences were likely to result. Committees were presided over by the chairman of their own appointment; no record was kept of their proceedings but what was made by him; every member had full liberty to speak as often as the committee might please to hear him; and it was only when the committee came to make their report, that their proceedings were inscribed on the journals of the house. When, therefore, it had once been settled that the whole house could be of a committee, it was an obvious expedient, whenever the case and demanded a degree of freedom and independence incompatible with the ordinary forms of proceeding, to turn the house at once into a committee. It accordingly became the practice during the reign of James I. and Charles I. for the house of commons, generally at the commencement of each session, to appoint committees to consider of all the great subjects of interest, which they undertook to investigate; which committees, from being in first large committees, the members of which were of specially named, came at length to be of the whole house, either generally named, or specially named, with authority to all members of the house, who chose to do so, to attend and have voices. These committees were in general presided over by the popular leaders; they had authority to receive petitions and complaints from all the citizens without the intervention of the house; their proceedings were open to the public, or with closed doors, as might best suit the occasion; all papers and documents presented to them remained in their custody; the officers of the house, unless specially directed to do so, did not attend their sittings; they set in the house at such times as were not appointed for the sitting of the house; or when the business in hand required them to sit, during the time appointed for the house to sit, the house was resolved into the committee.
These general committees, as they were appointed, from time to time, bore different appellations, according to the subjects referred to them; but, at length, those that were appointed for the consideration of certain subjects, within the particular jurisdiction of the commons to investigate, came to be denominated the committees for religion, for grievances, for courts of justice, and for trade, to which at the commencement of the long parliament, was added a committee for Irish affairs. These were committees of the whole house, which set as committees in the afternoons, when the house did not sit; and, when occasion required, sat during the sitting of the house, as committees of the whole, properly so called. Sometimes, when they were directed by the house to sit in the afternoon, the speaker was also directed to attend, either at the same time, or after some little interval, when the business of the committee might be expected to be completed; in order to take the chair and make a house, if anything should occur to render it necessary, or to receive the report of the committee, when they should have gone through the subject refer to them.
In order to give some idea of the advantages, at the period adverted to, of proceeding in the investigation of corruptions and abuses, by committees, rather than by the house itself, the practice in reference to the preferring of petitions deserves specially to be mentioned. In consequence of the danger to which petitioners were exposed, who gave information of abuses in the public offices, or of corruption of the great officers of government, petitions were at first allowed to be delivered, without having any names attached to them. But this practice was found be attended with danger on the other side; for, if petitions thus delivered should turn out “to contain libels or treasons,” then, “not knowing from whom they were received, the burden might lie on the house.” A middle course was therefore devised; which was, that the name of the petitioner should, in the first instance, the put to his petition; and that when the petition had been read and allowed, the name of the petition or should be torn off; so that no man should know by whome it had been preferred. (Comm. Jour. I. 465). By this expedient, all danger, to the house and the members, on the one hand, and to petitioners, on the other, was obviated.
After these general committees had thus become established, as a part of the regular parliamentary machinery, it became the practice to pass orders for their appointment, at the commencement of each session, as standing committees of the house, under the names of the grand committees for religion, grievances, courts of justice, and trade. This practice continued,--through from the time of the restoration, the committees were never called upon to sit,-- and till the first session of the Reformed Parliament in 1833, when, the orders for their appointment not being renewed, they were of course laid aside.
If any further proof were needed of the great advantages which the popular party derived from proceeding by means of committees, during the reins of James I. and Charles I.., it may be found in the following remarkable passage of the declaration promulgated by the latter immediately after the dissolution of his third parliament in march, 1620:--
“We are not ignorant how much that house” (the commons) “hath of late years endeavored to extend their privileges, by setting up general committees for religion, for courts of justice, for trade, and the like; a course never heard of till of late: so as where, in former times, the knights and burgesses were wont to communicate to the house such business as they brought from their countries; now, there are so many chairs erected, to make inquiry upon all sorts of men, where complaints of all sorts are entertained, to the insufferable disturbance and scandal of justice and government, which, having been tolerated awhile by our father, and ourself, hath daily grown to more and more height; insomuch that young lawyers, sitting there, take upon them to decry the opinion of the judges; and some have not doubted to maintain, that the resolutions of that house must bind the judges, a thing never heard of in ages past. But, in this last assembly of parliament, they have taken on them much more than ever before.” (Rushword, I. App. 7)
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