Part 30

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.

FOOTNOTES

[1] Senate Journal, 32d Cong. 1st Sess., p. 339.

[2] Ibid., 33d Cong. 1st Sess., p. 43.

[3] Ibid., 34th Cong. 1st Sess., p. 100.

[4] Congressional Globe, 37th Cong. 2d Sess., Appendix, p. 2.

[5] Senate Journal, 37th Cong. 2d Sess., pp. 147, 549.

[6] Ibid., 38th Cong. 1st Sess., pp. 28, 47, 667.

[7] Statutes at Large, Vol. XIV. pp. 74, 75.

[8] Act of May 4, 1870: Ibid., Vol. XVI. p. 96.

[9] Opinions of Attorneys-General, Vol. X. p. 382, November 29, 1862.

[10] United States Statutes at Large, Vol. XII. p. 354.

[11] Wheaton’s Elements of International Law, edited, with Notes, by Richard H. Dana, Jr., Note 228, p. 645.

[12] Wheaton’s Elements of International Law, ed. Dana, Note 228, p. 645.

[13] Rebellion Record, Vol. III, Documents, p. 330.

[14] Executive Documents, 37th Cong. 2d Sess., Senate, No. 8, p. 4.

[15] Annual Register, 1861, p. 291.

[16] Annual Register, 1861, p. 254.

[17] Executive Documents, 37th Cong. 2d Sess., Senate, No. 8, p. 3.

[18] Ibid., p. 2.

[19] Wheaton’s Elements of International Law, ed. Dana, Note 228, p. 655.

[20] L’Amérique devant l’Europe, p. 176.

[21] Ibid., p. 177.

[22] Ibid., pp. 209, 210.

[23] Congressional Globe, 37th Cong. 2d Sess., pp. 176, 177.

[24] Revue des Deux Mondes, Jan.-Fév., 1862, p. 245.

[25] Wheaton’s Elements of International Law, ed. Dana, Note 228, p. 648.

[26] Executive Documents, 37th Cong. 2d Sess., Senate, No. 8, p 13.

[27] Ibid., No. 22, p. 2.

[28] Ibid., No. 30, p. 2.

[29] Congressional Globe, 37th Cong. 2d Sess., p. 208.

[30] Congressional Globe, 37th Cong. 2d. Sess., p. 211.

[31] Ibid., pp. 209, 210.

[32] Ibid., p. 211.

[33] Executive Documents, 37th Cong. 2d Sess., Senate, No. 8, p. 3.

[34] MS. Opinion of the British Law Officers. _Ante_, p. 163.

[35] The Examiner [London], December 7, 1861, p. 769.

[36] The Examiner, December 7, 1861, p. 770.

[37] De Laudibus Legum Angliæ, Cap. 27.

[38] Witichindus Corbeiensis, lib. 2. Annal., ap. M. de Laurière, Préf. Ordon., Vol. I. p. xxxiii.,--quoted by Robertson, History of Charles V., Vol. I., Proofs and Illustrations, Note 22.

[39] The Times, November 28, 1861.

[40] Jefferson, Letter to Madame de Staël, May 24, 1813: Works, Vol. VI. p. 118. Manning, Commentaries on the Law of Nations, p. 375.

[41] Hansard, Vol. XXIV. 601, 602, February 18, 1813.

[42] Hildreth’s History of the United States, Vol. VI. p. 349.

[43] Edinburgh Review, July, 1833, Vol. LVII p. 459.

[44] American State Papers, Foreign Relations, Vol. III. p. 574.

[45] Ibid.

[46] American State Papers, Foreign Relations, Vol. III. p. 574.

[47] Ibid., Vol. II. p. 489.

[48] American State Papers, Foreign Relations, Vol. III. p. 84.

[49] American State Papers, Foreign Relations, Vol. III. p. 134.

[50] Ibid., p. 138.

[51] American State Papers, Foreign Relations, Vol. III. p. 160.

[52] The Inadmissible Principles of the King of England’s Proclamation of October 16, 1807, considered: Works, Vol. IX. p. 322.

[53] American State Papers, Foreign Relations, Vol. III. p. 405.

[54] Ibid., p. 605.

[55] Annual Register, 1813, Vol. LV. pp. 337, 339.

[56] Exposition, pp. 6, 7. This pamphlet is preserved in the Appendix to the Life and Writings of Alexander J. Dallas, by his Son, George Mifflin Dallas.

[57] Memoranda of a Residence at the Court of London, 2d edit., pp. 200, 201.

[58] Letter to Lord Ashburton, August 8, 1842: Webster’s Works, Vol. VI. p. 323; Executive Documents, 27th Cong. 3d Sess., Senate, No. 1, p. 142.

[59] Executive Documents, 36th Cong. 1st Sess., Senate, No. 2, pp. 28, 29.

[60] Le Droit des Gens, Liv. IV. ch. 7, § 85.

[61] The Caroline, 6 Robinson, Admiralty R., 468.

[62] The Orozembo, 6 Robinson, Admiralty R. 434.

[63] American State Papers, Foreign Relations, Vol. III. p. 83.

[64] American State Papers, Foreign Relations, Vol. III. p. 84.

[65] Ibid.

[66] Ibid., p. 82.

[67] American State Papers, Foreign Relations, Vol. III. p. 99.

[68] Ibid., p. 107.

[69] Ibid., p. 137.

[70] MS.

[71] Memoranda of a Residence at the Court of London, 2d edit., p. 306.

[72] Ibid., pp. 306, 307.

[73] Statutes at Large, Vol. VIII. pp. 24, 26.

[74] Ibid., p. 38.

[75] Ibid., p. 64.

[76] Ibid., p. 90.

[77] Ibid., p. 146.

[78] Ibid., p. 186.

[79] Ibid., p. 312.

[80] Ibid., p. 328.

[81] Ibid., p. 393.

[82] Ibid., p. 416.

[83] Ibid., p. 436.

[84] Ibid., p. 474.

[85] Ibid., p. 490.

[86] Ibid., p. 540.

[87] Ibid., Vol. IX. p. 888.

[88] Ibid., Vol. X. p. 880.

[89] Ibid., p. 894.

[90] Ibid., p. 936.

[91] Executive Documents, 37th Cong. 2d Sess., Senate, No. 8, p. 13.

[92] 6 Robinson, Admiralty R., 440.

[93] Pratt, Law of Contraband of War, p. 58.

[94] United States Statutes at Large, Vol. VIII. p. 26.

[95] Convention with Colombia, 1824: Statutes at Large, Vol. VIII. p. 312; and later treaties, _passim_.

[96] Executive Documents, 33d Cong. 1st Sess., H. of R., No. 111, p. 13.

[97] Hautefeuille, Questions de Droit International Maritime: Affaires du Trent et du Nashville, p. 13. See also an earlier pamphlet,--Quelques Questions de Droit International Maritime, à propos de la Guerre d’Amérique (Leipzig et Paris, 1861).

[98] Europäische Völkerrecht der Gegenwart (1855), § 157 b, p. 276.

[99] The Rapid, Edwards, Admiralty R., 231.

[100] Elements of International Law, Part IV. ch. 3, § 24.

[101] United States Statutes at Large, Vol. VIII. p. 125.

[102] Ibid., p. 26.

[103] Ibid., p. 46.

[104] Executive Documents, 37th Cong. 2d Sess., Senate, Doc. 8, p. 13.

[105] Mr. Madison to Mr. Monroe, January 5, 1804: American State Papers, Foreign Relations, Vol. III. p. 86.

[106] Des Droits et des Devoirs des Nations Neutres en Temps de Guerre Maritime. 4 vol. Paris, 1848.

[107] Une Parole de Paix sur le Différend entre l’Angleterre et les États-Unis.

[108] Revue des Deux Mondes, Nov.-Déc., 1861, p. 1014.

[109] Letter to M. de Sartiges, July 28, 1856: President’s Message and accompanying Documents, December, 1856: Executive Documents, 34th Cong. 3d Sess., H. of R., No. 1, pp. 35-43.

[110] Letter to Mr. Rush, July 28, 1823: Executive Documents, 33d Cong. 1st Sess., H. of R., No. 111, p. 6.

[111] Letter to Mr. Sheldon, August 13, 1823, Ibid., p. 17; Letter to Mr. Brown, December 23, 1823, Ibid., p. 19.

[112] Letter to Mr. Gallatin, June 19, 1826: Ibid., p. 37.

[113] Letter of the Secretary of State, May 6, 1794: American State Papers, Foreign Relations, Vol. I. p. 473. See also Letter of December 15, 1794: Ibid., p. 511.

[114] This paragraph was omitted in the delivery, lest it might be turned to disparage the blockade already instituted against Slavery.

[115] Herald of Peace, August, 1862.

[116] Quarterly Review, January, 1862, p. 260.

[117] Debate on the Address respecting the War with America, Feb. 18, 1813: Hansard, XXIV. 601.

[118] _Ante_, p. 213.

[119] _Ante_, p. 164.

[120] Letters by Historicus on some Questions of International Law, reprinted from the _Times_ with considerable Additions. London and Cambridge, 1863.

[121] This was a very short time before the sudden death of this lamented author.

[122] Elements of the Law and Practice of Legislative Assemblies in the United States, by L. S. Cushing, p. 193.

[123] Clarke and Hall’s Cases of Contested Elections in Congress, p. 287.

[124] Ibid., p. 314.

[125] Sparks, Life and Treason of Benedict Arnold, p. 140: Library of American Biography, Vol. III.

[126] Sparks, Life and Treason of Benedict Arnold, p. 141: Library of American Biography, Vol. III.

[127] Annals of Congress, 10th Cong. 1st Sess., col. 57.

[128] Alison, History of Europe, 2d edit., Vol. IX. p. 553.

[129] Commentaries, Vol. IV. pp. 81, 82.

[130] 2 Douglas, R., 592.

[131] 4 Cranch, S. C. Rep., 126.

[132] Commentaries, Vol. IV. p. 82.

[133] Caron de Beaumarchais, author of _Mariage de Figaro_.

[134] 1 Burrow, R., 646.

[135] 6 Term, R., 529.

[136] Congressional Globe, 37th Cong. 2d Sess., p. 184.

[137] Writings of Washington, ed. Sparks, Vol. VII., Appendix, p. 533.

[138] Ibid., p. 540.

[139] 37th Congress, 2d Session, p. 418.

[140] Statutes at Large, Vol. XII. p. 333.

[141] This important principle was affirmed by Mr. Everett somewhat tardily; also by Dr. Brownson, at an earlier date. See, _post_, Appendix, pp. 307, 313.

[142] _Post_, Vol. VII. p. 1.

[143] _Post_, Ibid., pp. 112, 119.

[144] Duty of Supporting the Government; Address delivered in Faneuil Hall, 19th October, 1864: Orations and Speeches, Vol. IV. pp. 718, 719.

[145] Congressional Globe, 37th Cong. 2d Sess., March 20, 1862, pp. 1300, 1302.

[146] Congressional Globe, 37th Cong. 2d Sess., April 1, 1862, p. 1472.

[147] Ibid., April 2, pp. 1493, 1495.

[148] Congressional Globe, 37th Cong. 2d Sess., June 25, 1862, p. 2925.

[149] Ibid., July 7, p. 3148.

[150] Ibid., 39th Cong. 1st Sess., January 17, 1866, pp. 268, 274.

[151] Ibid., January 10, p. 162.

[152] Congressional Globe, 39th Cong. 1st Sess., January 26, 1865, p. 441.

[153] Ibid., 39th Cong. 2d Sess., February 16, 1867, p. 1444.

[154] Ibid., 40th Cong. 2d Sess., February 24, 1868, p. 1378.

[155] Congressional Globe, 40th Cong. 2d Sess., January 30, 1868, p. 860.

[156] See, _post_, pp. 381, 376.

[157] April, 1862, Vol. XCIV. pp. 435-463.

[158] Hon. Joel Parker, Professor in the Law School, Cambridge, formerly Chief Justice of New Hampshire.

[159] Hon. Martin F. Conway, Representative in Congress from Kansas.

[160] Brownson’s Quarterly Review, Third New York Series, April, 1862, Vol. III. pp. 194-220.

[161] Ibid., p. 199.

[162] Ibid., p. 200.

[163] Ibid., pp. 201, 202.

[164] Ibid., pp. 217, 218.

[165] Le Temps, 5 Mars, 1862.