The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1890-03-03

icdtcu tno ulOtlOn, anu YET IL is clalmeu tnat
their mere silence did what their votes, re-
enforced by two and thirty more. could not.
Moreover, according to that same ingenious
theory, any two Of the 100 silent men, by
voting against the motion, would have con-
stitutionally carried 1t III this be so, 1t has
the disadvantage Of not appealing to the
common-sense of mankind.
The Supreme Court Of New Hampshire,
by the mouth Of Chief justice Doe, has de-
clared that where there were seven alder
men In all and six were present, Of whom
three voted, the vote was a valid one, even
Il but two voted in::::the affirmative. The
Chief Justice also adds words which must
seem almost rude to some of those gentle
men, lawyers in their own country, who
voiced their feelings on the 29th Of January.
The exercise Of the law-making power"
says the Chief Justice, sis not to be stopped
the lawmakers who are present." IL these
legal gentlemen cared to make a dialogue of
it. they could assure the Chief Justice that,
owing to the sound sense and steadfastness
OF the House Of Representatives, not only
mere silence and inaction" could not stop
the law-making power" but.even multitude
nous righteousness and quite violent action
failed to do it.
On the 10th of last December, just after
the opening of this session, the Supreme
Court of Indiana. In Gas Company VS..
ton with abundance Of learning,
showing an unbroken line of precedents-
'"precedents," let us say In language now
become immortal, "-precedents," of hun
dred yesrs"-in favor Of the doctrine that
man who Is present and can act is part of
quorum, and carrot by mere silence escape
all the responsibilities of his Office except
those of payday. In language which re-
calls the terse sentence of the Illinois court
already quoted, the Indiana judges declare,
as II they had in mind the very House Of
Representatives that now is -
at is inconceivable that their silence should be
allotted greater force than their active opposition
Certainly the utmost that caE with the
faintest tinge OF plausibility be claimed Is that
their votes must be counted against the resolu-
If members present desire to defeat measure
they must vote against 1t, for nacton. will not ac
complish their purpose. Their silence Is acquies-
eence rather than opposition"
"Ths rule we have asserted is very old one"
1t really seems needless to cite any more
legal authorities, and yet the courts could
furnish US with many more decisions as
sound and pertinent as those already given.
In view OF the headlines which have orna-
mented the daily journals of one Of the par
ties of this country for number OF weeks,
Is it not strange to note that not one single
court sustains their view Of a great constitu-
tional question? 1t really locks as II il was
constitutional certainty. For not only are
the judges against them. but the statesmen
are, and the politicians also.
Governor Hills decision has already been
spread before the people, and need not be
more than alluded to. 1t Is, however, proper
to say that his views have been acqulesced in
in the great State of New York, and while
do not pretend to have any knowledge Of
what events surrounded the then lieutenant
governors action, 1t would not be at all sur
prising, In view of the powerful reasoning
there displayed, to learn that his action had
the prior approval OF great lawyers and pos
sibly even of great judges.
Tennessee has twice furnished examples Of
the record Of those present and refusing to
vote and the passage Of bills on yea-and-
nay vote which did not disclose quorum.
If those acts were ever called in question,
nobody has yet cited the decision overthrow
ing them.
An amendment to the state-bank act was
passed in Ohio In Vallandigham's day in
the sal.e way, the Speaker announcing that
mo quorum had voted, but quorum was
present" This act was in force for twenty
years. In the Michigan Senate and in Ohio,
In Massachusetts in both house, and even 10
Kentucky, the same thing has been done. II
any one desires to see model statement Of
the case, let him look at President Pillsbu-
1855. IS as'''i'n III 'ns massachusetts senate III
While the Kentucky Democratic members
did not with quite the same adorable frank
ness with which they expressed their opln-
ions state the action OF their State Senate,
yet it was disclosed during the debate that
Kentucky had followed the other states, and
the fact excited the same kind of surprise
which was aroused when the rules of the
Virginia House Of Delegates were exhibited.
Some of the Virginia members had remon-
strated with yig0r when their names were
called as present and refusing to vote. And
yet under constitution the phraseology of
whi h ON this subject of quorum Is identi-
cal with the Constitution of the United
States, the rules of the House of Delegates
of the State of Virginia record those who
pose OF making quorum when 1t Is not dis
closed by actual votes on roll-call.
In the Pennsylvania Senate, in 1880, occurred
an incident which adorns with an illumina-
tiun quite picturesque the doctrine Of con-
structive absence. There had been much
ilibustering of the congressional sort dur
ing the session, the Democrats refusing to
vote Senator Rayburn, in the chair, decid-
ed that those Democrats who demanded the
yeas and nays were present There was
Democrat was in the chair the same question
arose, and he promptly decided that those
who demanded the yeas and nays were not
there. Thereupon the friends Of tyranny of
that period, in the person Of Mr.. Cooper,
made the point that the Chair was present,
and the Chair decided that he was not! 1t
was felt, however, that the great princi-
pie had somehow or other then and there re-
ceived a great strain, and the Senate there
after behaved and obstruction ceased. A
sense of the ridiculous sometimes rises to
the dignity of effectual saving grace.
1t is useless to cite In addition the debates
of the Constitutional convention. 1t is true
that they would remove any shade Of doubt,
If we had any, but the language of the Con-
stitution leaves no room for question.
quorum, the Constitution provides way to
get one. 1t is not by recording those present
as voting either yea or nay, but by making
the absent present. 1t provides for the sup
ply of what is lacking. That which was
lacking was a quorum. 1t supplies that lack
is necessary: Is It conceivable that our
ancestors should have tried to supply
by attendance" lack of quorum If they
knew that attendance" would not supply
the lack? Why send for men if that was not
the remedy?
of the visible have come some specious argu-
ments which, by dint of frequent repetition,
have taken on the Importance Of formulas OF
accepted facts. Among these is the alleged
duty of the majority to furnish quorum.
Why should good Democrats, washing theiI
hands, like Pontius PLATE, Of this matter,
and desiring only the quiet and convenient
secluson Of their own seats. be compelled to
submit to the outrage Of being noticed In or
der to enable legislation to march? Let the
majority have their men here. Let every
Republican be In his seat, where he belongs,
and there would be no trouble.
This sounds we'll. What could be more
simple? One hundred and sixty-eight Re-
publicans present and voting is all we ask
Unfortunately, this Is world which even
Congress does not utterly absorb. Sickness
and death and business crises do not spare
even Congressman. In the struggles over
the election case of Jackson and Smith, two
men were absent on account Of causes utterly
impossible to be overcome; two more came
at risk of further sickness and perhaps oi
their lives. At the next crisis. when on tht
adoption of the new rules 1t seemed desirabl,
| to have all the Republicans there. Mr.. Nc
Kinley, who was in good health on the prio
occasion, dared not leave his room. Mr.
| Morrow had taken the place Of Mr.. Rockwell
| on the sick list, and death in his family ha,
| sent Mr. Van Schaick home in place of MI
| Caswell, who could not be with us on tn
| decision of the election case. Many repre-
| sentatives in Congress, moreover, are men q
| affairs, business men who cannot throw ava
| their enterprises and close up their shops en-
| tirely. If the country wants their services
| and no men are more useful by reason q
| the very ability and judgment which pr
them In the fore front Of the business worl
they must have time once In while to al
| tend to important affairs. And In practic;
life it will always happen that from five
ten men Will be called off just at the momer