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THE RULES OF PROCEDURE OF CONSTITU
I. ORGANIZATION OF THE CONVENTION.
The act of April 3, 1916, under which the Convention is held, provides that the persons elected as delegates to the Convention shall assemble in the State House, Boston, on June 6, 1917. This act, like those of 1820 and 1852, is defective in that it does not designate the hour of meeting. The Convention of 1820 met at ten o'clock in the morning, while that of 1853 met at noon. In the absence of any express provision, the latter hour seems to be the appropriate time. The Convention shall be the judge of the returns and election of its members, and one hundred and sixty-one of the persons elected shall constitute a quorum for the transaction of business. The act further provides, “They shall be called to order by the Governor and shall proceed to organize themselves in Convention by choosing a president and such other officers and such committees as they may deem expedient, and by establishing rules of procedure."
From the foregoing recital it is apparent that when the Convention assembles on June 6, it will find itself provided with a temporary presiding officer in the person of His Excellency the Governor. Under his guidance it should proceed at once to form its permanent organization. The first step in this process is the ascertainment of the presence of a quorum, for without a quorum it can transact no business. As a means of ascertaining this fact it would be appropriate for the Secretary of the Commonwealth to be in attendance and to call the names of the delegates from a roll made up from the returns filed in his office. Upon reporting to the Governor the presence of a quorum, the delegates should qualify for their duties by taking an oath of office. There has been some question in the minds of many persons as to whether the delegates to a constitutional conven
tion can with propriety take the usual oaths of office. It has been argued that the purpose of their assembling is to effect alterations in the Constitution of the Commonwealth and hence that an oath to support that instrument would be incongruous and inconsistent with this purpose. However that may be, it cannot be questioned that they are bound to support the Constitution of the United States, and there is nothing in their duties which is incompatible with the allegiance which they owe to the Federal Government. It seems clear also that they are equally bound to support and defend the Constitution of the Commonwealth. The Convention which will assemble on June 6 is not empowered to make any alteration in the Constitution on its own authority. It is only empowered to recommend changes to the people, and such changes become effective only when ratified by the people. It may be that none of its recommendations will be adopted, in which case the present Constitution remains the fundamental law of the Commonwealth. Or if the changes recommended are adopted, the present Constitution still remains the fundamental law until there has been an actual adoption of the changes proposed, and every citizen of the Commonwealth is legally bound to observe the law as it is until it has been lawfully altered. The whole matter is made clear if it be recognized that the assembling of the Convention not only does not dissolve the frame of government of the Commonwealth, but that it makes no change in it whatever. If the labors of the Convention shall ultimately produce alterations in the Constitution, that result will not occur until the people have acted by means of an election, and in the nature of things that cannot take place until after the Convention has completed its work. Meanwhile the fundamental law of the State remains the fundamental law, which the members of the Convention should take an oath to defend and support.
Entirely apart from the reason of the thing, the Constitution of Massachusetts, in Article VI of the Amendments, contains the following mandatory provisions:
ART. 6. Instead of the oath of allegiance prescribed by the constitution, the following oath shall be taken and subscribed by every person chosen or appointed to any office, civil or military under the government of this Commonwealth, before he shall enter on the duties of his office, to wit:
"I, A. B. do solemnly swear that I will bear true faith and allegiance to the Commonwealth of Massachusetts, and will support the constitution thereof. SO HELP ME, GOD."
Unless, therefore, it can be shown that the office of delegate to the Constitutional Convention is not an office "under the government of this Commonwealth,” there is an express constitutional requirement that an oath of a prescribed form shall be taken.
In the Convention of 1820 and in the Convention of 1853, the records do not show that the delegates took any oath of office or that any question concerning the propriety of their action was raised. In recent conventions in other States, such as Michigan, 1907, Ohio, 1912, and New York, 1915, the delegates took the usual oaths. The oath taken by the members of the Ohio Convention, which is substantially the same as that taken in Michigan and New York, was as follows:
I do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of Ohio, and that I will honestly and faithfully and to the best of my ability perform my duties as a member of the Convention to alter, revise or amend the Constitution of the State of Ohio. So help me, God.
It will probably happen that a few members cannot be present at the opening session of the Convention and take the oath of office at that time. Such members could qualify before the Governor at a later date.
After the ascertainment of the presence of a quorum duly qualified by the usual oaths of fidelity to the Federal and the State Constitutions, the Convention should proceed to form its permanent organization by the election of a president and a secretary. In this connection it will be necessary for the Convention to determine how it will elect its officers, - whether by a secret ballot or by an open vote on a roll call. The first method was followed in the Massachusetts Convention of 1853 and is still employed by the Massachusetts Senate. The second method was used in the Michigan Convention of 1907, the Ohio Convention of 1912 and the New York Convention of 1915. It is also the mode of election used by the Federal House of Representatives in its choice of a Speaker.
In order to facilitate the work of the Convention, provision should at once be made for the selection of three commit
tees. There should be a Committee on Permanent Organization, which should recommend to the Convention such an organization and list of officers as are needed for its work. This function is of a temporary nature, and when it has been performed the committee could be discharged. There should be a Committee on Credentials and Elections, which should be a standing committee. To it should be referred for verification the credentials of all persons claiming seats as delegates to the Convention, and it should also take jurisdiction over the subject of disputed elections. In many bodies these two subjects are assigned to different committees, but they are so closely allied that the work of the Convention would be expedited if they were placed under the jurisdiction of the same committee. The third committee, which should be selected at once in order that it may make an early report, is the Committee on Rules. Pending the adoption of a permanent set of rules, the Convention would perhaps find it advisable to adopt either the rules of the Convention of 1853, or the Rules of the present House of Representatives of Massachusetts so far as applicable.
II. THE NATURE OF THE CONSTITUTIONAL CONVENTION AS
AFFECTING ITS PROCEDURE.
The superficial resemblances between a constitutional convention and a legislative body are so numerous that the features which distinguish the two are often overlooked. It is important, however, that their distinctive characteristics should be noted, for they bave an important bearing on the nature of the rules to be adopted. A legislature is avowedly a partisan body. Much of its work has to do with the peculiar tenets of the party groups into which its members are divided. It is right that the party character of the legislature should be reflected in its rules, which are not merely parliamentary regulations for the government of a public meeting, but are the instrument by which the majority party is enabled to put through its program and fulfill, so far as it is disposed to do so, its pre-election pledges to the people. The rules are the means by which the majority party makes its responsibility effective. In a constitutional convention party lines are likely to be less sharply drawn. To be sure