Volume 9 — CONSTITUTIONAL QUORUM OF THE SENATE.

Speech in the Senate, on a Resolution declaring the Constitutional Quorum, July 12, 1862.

According to long-continued usage, a quorum of the Senate was a majority of the whole number of Senators, assuming each State represented by two Senators. After the withdrawal of the Rebel Senators, business was often embarrassed from the failure of what was supposed to be the constitutional quorum. To remove this difficulty, Mr. Sherman, April 11th, introduced the following:—

“Resolved, That a majority of the Senators duly elected and entitled to seats in this body is a constitutional quorum.”

July 12th, Mr. Sumner said:—

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.