126 Mass. 557 | Mass. | 1781
To the Honorable the Senate of the Commonwealth of Massachusetts :
On the nineteenth day of April last the Honorable Senate adopted an order, which was transmitted on the next day to the Justices of the Supreme Judicial Court, requesting their opinion upon the following questions : ‘
“First. Can the Senate, under the provisions of chapter 1, section 3, article 7, of the Constitution, originate a bill or resolve appropriating money from the Treasury of the Commonwealth ?
“ Second. Can the Senate, under said provisions, originate a bill or resolve, in any way involving, directly or indirectly, the expenditure of money from the Treasury, or imposing any burden or charge thereon ? ”
On the twenty-second day of April the Honorable House of Representatives adopted an order, which was on the next day transmitted to the Justices of the Supreme Judicial Court, requiring their opinion upon this question:
“Is the power to originate a bill appropriating money from the State Treasury limited by the Constitution to the House of Representatives, or does it reside in both branches of the Legislature ? ” •
On the third day of May the Justices of the Supreme Judicial Court, having taken these questions into consideration, addressed a communication to the Honorable Senate, and a like communi
In answer to these communications, the Justices received from the presiding officers of the two Houses copies of a resolve and of a bill.
By the resolve, after reciting that Thomas Cahill, formerly of Boston, had been arrested in Ireland, at the instance of officers acting in behalf of this Commonwealth, on the charge of having committed a murder here, and had been by them brought to this Commonwealth, and imprisoned for a long time, and then released without trial, and thereby had suffered greatly in body and mind, and had been put to large expense, and obliged to return to Ireland without any decision by the courts as to bis guilt or innocence, it was “ Resolved, that the sum of one thousand dollars be paid to Thomas Cahill, and the same is hereby appropriated; said sum to be placed in the hands and at the disposal of the Governor, to be by him paid to said Cahill in such manner as in his judgment will best secure, to said Cahill the full benefit of the money.”
The bill purports to enact that “ there is hereby appropriated, to be paid from the ordinary revenue, unless otherwise ordered, a sum not exceeding thirteen thousand two hundred and seventy-seven dollars, in addition to the amount heretofore appropriated, for the support of the State Reform School for Boys at West-borough.”
The Justices were informed that both the resolve and the bill originated and were passed in the Senate; that the House of Representatives refused to entertain them, on the ground that each was a money bill, within the provision of chapter 1, section 3, article 7, of the Constitution of the Commonwealth, and therefore could not originate in the Senate; and new ones in the same words were introduced in the House.
The Senate appointed a special committee on the communication from the Justices (consisting of the President of the Senate and two other senators) with instructions to search for precedents ; and the House of Representatives appointed a like committee (consisting of the Speaker and the chairmen of the tanding committees on Finance and on the Judiciary) to confer with the Senate, or any committee thereof, upon the communication from the Justices. Upon the report and recommendation of these committees, the two Houses, on the tenth day of May, passed the following order:
“ Ordered, That the opinions of the four Justices of the Supreme Judicial Court, delivered in the Senate February 22,1781, and now in the archives of the Commonwealth, with the lists of bills levying taxes, and bills and resolves appropriating money, which originated in the Senate between 1780 and 1790, together with the precedents extracted from the records of the General Court prior to 1780 — which lists and precedents have been collected under the direction of the Senate committee, to which a communication of the Honorable Justices of the Supreme Judicial Court was referred—be printed, and that copies thereof be transmitted to the Justices.” ■
Copies of the report of each committee,
These papers having been received by the Justices only three days before the final prorogation of the Legislature, and while
The Justices of the Supreme Judicial Court, having now fully considered the questions upon which their opinions have been required by the Honorable Senate and the Honorable House of Representatives respectively, and the precedents communicated to them by the joint order of the two Houses, and other precedents and authorities on the subject, respectfully submit the following opinion:
The Constitution of the Commonwealth provides as follows: “ All money bills shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as on other bills.”
The questions proposed by the two Houses, although differing in form, appear to us to present substantially one and the same question; namely, whether a bill which appropriates money from the treasury of the Commonwealth, and does not provide for levying such money upon the people, by tax or otherwise, is a money bill, which must, by this provision of the Constitution, originate in the House of Representatives.
Upon first taking up this question, some of us had doubts whether it was one upon which we could properly express an opinion. Although a consideration of the precedents dispelled those doubts, it has seemed to us proper, in order to show that, in undertaking to define the constitutional authority of a branch of the Legislature, we have been cautious not to exceed our own,
The question is indeed, in one aspect, a question of parliamentary privilege and of parliamentary procedure; but it is also a question of the construction of the Constitution of the Commonwealth, which is on this subject the supreme law.
The Constitution declares that “each branch of the Legislar turc, as well as the Governor and Council, shall have authority to require the opinions of the Justices of the Supreme Judicial Court upon important questions of law and upon solemn occasions.”
The practice of the Stuart kings, in taking extrajudicial opinions of the judges upon questions about to come before them judicially, was an unconstitutional abuse of the royal authority in this respect.
We are not aware of any instance since 1760 in which the Crown has exercised the power of asking the opinion of the judges. But the right of the House of Lords to put abstract questions of law to the judges, the answer to which might be necessary to the House in its legislative capacity, has been often acted on in modern times.
There are expressions in Lord Coke’s writings to the effect that the judges ought not to give opinions upon any law, custom or privilege of Parliament.
The precedents referred to by Lord Coke, and which are the foundation of the theory that the judges cannot properly give an opinion upon any question of the law, privilege or custom of Parliament, are two cases in the rolls of Parliament in the reign of Henry VI. In the one case, a question of precedency between two earls in the Parliament, the King’s Council, and elsewhere, was referred by the King, by the advice of the House of Lords, to the judges, who, while observing that it was a matter of Parliament belonging to the King and to the House of Lords to determine, declared in positive terms their own opinion upon the
It is worthy of remark, that only two years later, in Pylkington’s case,
In the reigns of Henry VIII.,
One other English precedent is worthy of being more fully stated. By an act of Parliament passed in 1624, granting an aid to King James I. for the maintenance of the then expected war with Spain, it was provided, in order to secure the application of the moneys so granted to the uses mentioned in the act, that the sums levied should be paid into the hands of eight citizens of London named as treasurers, and expended only upon the warrant of ten other persons, four peers and six commoners, named as the King’s council for the war, or of five or more of them; and that both treasurers and councillors should make oath for the performance of their trust, and be accountable to the House of Commons. The bill having been brought up from the Commons, the House of Lords, before passing it, ordered all the judges to attend and deliver their opinions upon some questions of the jurisdiction and authority of the two Houses respectively, or, in the phrase of that time, “ some points of judicature in the said bill.” The judges attended accordingly, and delivered an opinion as follows: “ Resolved by all, with one uniform assent, that, upon perusal of the several parts of the act of sub
In this Commonwealth, the privileges of the two Houses do not, as in England, rest merely upon legislative resolves or usages; but they are defined by the written Constitution.
For instance, opinions have been frequently required by the House of Representatives, and given by the Justices, upon questions of law concerning the election and qualifications of members, of which the House is made by the Constitution the final judge;
The interesting character of the precedents to which we have referred, and the want of any published collection in which they may be readily found, may, we trust, excuse the fulness with which we have stated the considerations which have satisfied us
The prominence given to the practice of the Lords and Commons in England, in the opinions heretofore delivered by the presiding officers of each branch of the Legislature of Massachusetts upon the question of the right of the Senate to originate bills or resolves appropriating money from the Treasury of the Commonwealth, makes it proper to give an outline of the history of the usage of the English Parliament before 1780 in regard to bills raising, granting, and appropriating money, having particular regard to the precedents cited in those opinions.
It was well established in England, before the emigration of our ancestors, that all grants in Parliament of subsidies to the King must begin in the House of Commons, and be first granted by them.
The right of the Lords to reject bills of supply and taxation was admitted; and their right to amend such bills does not appear to have been denied by the Commons before 1671.
The Commons, up to that time, had not undertaken to extend their exclusive privilege to the imposing or distribution of penalties.
In the resolutions and proceedings of the two Houses of Parliament, the words “granting money” were applied to grants from the people through the Commons to the King; and such was the common meaning of the words in England. For instance, the elder Pitt (afterwards Lord Chatham), in the debate in the Commons in 1766, on the right of Parliament to tax the Colonies, said: “The taxes are a voluntary gift and grant of the Commons alone.” “When, therefore,in this House we give and grant, we give and grant what is our own. But in an American tax what do we do? We, your Majesty’s Commons of Great Britain, give and grant to your Majesty — what? Our own property? No. We give and grant to your Majesty the property of your Majesty’s Commons of America.”
The right asserted by the House of Commons, in the resolution of 1678, is that of granting aids and supplies to the-King, and of originating bills for such grants, and of specifying in such bills the objects to which, and the modes in which, the money granted by those bills shall be applied. But nothing is there said as to the right of the Lords, when money has been once granted by the Commons without specific appropriation, to originate or to amend a bill appropriating it to particular uses or purposes. As observed by Mr. Hargrave in a paper prepared in 1784 “Concerning the Appropriation of Parliamentary Aids and Supplies for Particular Services,” “ In the more ancient times the usual course of Parliament on granting taxes and aids to the Crown
By standing orders of the House of Commons, passed early in the last century, and by the construction given to those orders by the House, the supplies could only be granted upon recommendation from the Crown; and all sums so granted, whether for the use of the government or for private purposes, were considered as grants from the people to the Crown. The usual form of proceeding was, that the amount and the general purposes of the grant were fixed by the committee of supply, and the manner of raising it was determined by the committee of ways and means; and, when these two committees were closed, the House passed a general appropriation act.
In 1696 amendments of the Lords to a bill of the Commons for remedying the ill state.of the coin were rejected by the Commons, because the amendments, “ being in order to give a longer time to receivers and collectors of the taxes and revenues to pay into his Majesty’s Exchequer such hammered money as is mentioned in the bill, by tale, will give an opportunity to the said receivers and collectors to make great advantages to themselves, without any ease to the people, and will increase the deficiencies which are to be supplied at the public charge ; for which reason alone, the Commons can by no means admit that the Lords could make any amendment to this bill, which is to be a charge upon the people as aforesaid.” And the Lords did not insist on their amendments.
In the same year the Commons sent a message to the Lords to put them in mind that a bill for encouraging the bringing in of wrought plate to be coined belonged to the House of Commons, to be presented by their Speaker to the King, and to desire that it might be sent down to them, “ for that the same allowed 5s. 4c?. per ounce to be given for plate to be brought into the mints to be coined; and authorized the Commissioners of the Treasury to take ¿£50,000 out of any moneys lent or advanced into the Exchequer, for the paying for such plate.” But “the bill being brought by the clerk of the House of Lords to the clerk of this House, as bills relating to money usually are, the message was not sent.”
In 1719 an amendment by the Lords of a bill to prevent smuggling was disagreed to by the Commons as being “ a disposition of public money,” and another as being “ an alteration of the Commons’ disposition of public money,” “contrary to the undoubted right of the Commons, and from which they can never depart.” After a conference, the Lords did not insist on their amendments, the precise nature of which does not appear.
In 1733 a bill from the Lords, for vesting in Sir Theodore Janssen the remainder of an estate “ now in the Crown,” was unanimously rejected by the Commons; but no reasons are stated.
In 1736 the Lords amended a bill for indemnifying persons guilty of offences against the laws made for securing the revenues of customs and excise. Upon the amendment being read in the Commons, Mr. Speaker Onslow submitted to the House the question whether this was not an encroachment upon their privileges, and observed, “ that, in all bills by which any tax or duty was to be imposed upon the subject, it was the undoubted privilege of that House, and they had always insisted upon it, that the other House should not make any the least amendment to any such bill, but were in all such cases either to pass the bill without any amendment, or to reject it if they thought fit; that, as the taxes and duties granted by that House could not be raised or collected without prescribing proper and effectual methods for that purpose, therefore in all bills for imposing any tax or duty upon the subject, certain methods had been prescribed for effectually raising that tax or duty; and if the methods prescribed
Mr. Hatsell, who wrote at the close of the American Revolution, and whose work has ever since been considered a standard authority for the claims of the Commons up to that time, in his chapter upon “ Proceedings between Lords and Commons where the Rights and Privileges of either House are concerned,” says: “ Each House has a right to originate and to pass such bills as to them may seem proper, except that the Lords have, as appears from several of the instances, claimed the exclusive right that bills for restitution of honors, or in blood, should commence with them; and the House of Commons have on their part asserted, and I believe invariably preserved, the exclusive exercise of the right, ‘ that bills of supply, imposing burthens upon the people, should be the grant of the Commons, and that the Lords should have no other voice than, as one branch of the Legislature, by their assent to give the authority of a law to the levying of those aids and taxes which the Commons shall think wise and fitting to impose.’ Other bills .of what kind soever, whether relating to the Parliament itself, or to either House separately, may have their commencement indifferently in either House,” with the single exception of a bill for a general pardon, which begins neither with the Lords nor with the Commons, but with the Crown.
He here distinctly states that the only bills which must originate in the House of Commons are “bills of supply imposing burthens upon the people.” So when he comes to deal more
“ First, That in bills of aid and supply, as the Lords cannot begin them, so they cannot make any alterations, either as to the quantum of the rate, or the disposition of it, or, indeed, any amendment whatsoever, except in correcting verbal or literal mistakes; and even these the House of Commons direct to be entered specially in their journals, that the nature of the amendments may appear, and that no argument' prejudicial to their privileges may be hereafter drawn from their having agreed to such amendments.
“Secondly, That in bills which are not for the special grant of supply, but which, however, impose pecuniary burthens upon the people, such as bills for turnpike roads, for navigations, for paving, for managing the poor, &c., for which purposes tolls and rates must be collected — in these, though the Lords may make amendments, these amendments must not make any alteration in the quantum of the toll or rate, in the disposition or duration of it, or in the persons, commissioners or collectors appointed to manage it. In all the other parts and clauses of these bills, not relative to any of these matters, the Commons have not objected to the Lords making alterations or amendments.
“ Thirdly, Where the bill, or the amendments made by the Lords, appear to be of a nature, which, though not immediately, yet in their consequences, will bring a charge upon the people, the Commons have denied the right of the Lords to make such amendments, and the Lords have acquiesced.
“And, lastly, the Commons assert that the Lords have no right to insert in a bill pecuniary penalties or forfeitures, or to alter the application or distribution of the pecuniary penalties or forfeitures which have been inserted by the Commons.
The first and second of these classes include no bills that do not directly impose a pecuniary burden upon the people. The last class, that of bills imposing pecuniary penalties or forfeitures, stands only on the claim of the Commons, that these are burdens upon the people. The third class does not go beyond bills which “ in their consequences ” will impose a like charge, that is to say, by the effect of the bills themselves; and if construed as including bills which neither directly nor indirectly impose a burden upon the people, further than any bill authorizing the payment of money out of the Treasury may leave less money in the Treasury for the future needs of the government, is inconsistent with Mr. HatselTs own statement previously quoted, and is supported, as we have seen, by few and inconclusive precedents.
In the debate in the Commons in 1783 on the Lords’ amend ment to the American Intercourse Bill, the Speaker observed, that, “ as the bill empowered the Crown to impose duties, it was, strictly speaking, a money bill, and therefore the House could
In 1784 the House of Commons passed a resolution, declaring, that for any person in the Treasury or Exchequer, or employed in the payment of the public money, to issue, after a dissolution or prorogation of Parliament, money voted by Parliament for any services, and before the passage of any act of Parliament appropriating the supplies to such services, would be a high crime and misdemeanor, derogatory to the fundamental privileges of Parliament, and subversive of the Constitution of the country. But large supplies were afterwards voted, and not appropriated, before the dissolution of the same Parliament; and the next Parliament, supporting the ministers of the Crown, revoted the same supplies without question, although, in the interval, a portion of them had been expended by the ministers, without any parliamentary appropriation.
Mr. Hallam distinctly says that the Lords have never acknowledged any further privilege in the Commons than that of originating bills of supply.
The result of the review of this branch of the subject is, that it cannot be considered to have been settled in England before 1780, when the Constitution of the Commonwealth of Massachusetts was adopted, that the appropriation, to particular objects, of moneys in the Treasury or Exchequer of the Sovereign, be
The next matter to be considered, and quite as important a one in its bearing upon the true construction of our Constitution, is the comparative powers and privileges of the two branches of the Legislature of the Colony and Province of Massachusetts Bay. In dealing with this, it is to be borne in mind, that, according to the opinions of two of the very greatest constitutional lawyers of England, the House of Representatives in any of the subordinate legislative assemblies of the British dominions was not entitled to the privileges claimed and exercised by the House of Commons in Parliament.
In 1698 a bill for encouraging the linen manufacture in Ireland, having been framed by the Privy Council in England, and transmitted to the Irish Parliament, was there objected to as asserting the King’s prerogative, and as invading the privileges of the Irish House of Commons. Lord Somers (then Lord Chancellor of England, and acting as a Lord Justice of the kingdom during the absence of the King in Holland), upon being informed of this by a letter from the Duke of Shrewsbury, Secretary of State, answered as follows: “ The bill imposes some pecuniary penalties indeed, which of late the House of Commons in England, in their disputes with the Lords, call a money bill; but surely the Commons in Ireland did never think of carrying their sole right so far. It does also empower the grand juries in the several counties to assess a sum for building workhouses. If that would make it a money bill, there were many money bills passed in England last winter; but there is not anything granted to the King by the bill.”
Lord Camden, when Attorney General, gave an opinion upon the several powers of the Council and Assembly of the Province of Maryland, as follows: “ As to the power of the Upper House to examine claims and accounts, the Upper House are right in making a stand to this clause in the bill, and should take care how they admit encroachments of this kind, when they are supported by arguments drawn from the exercise of the like rights in the House of Commons here. The constitutions of the two
At the first settlement of the Massachusetts Colony the Governor and Assistants, chosen annually by the freemen at a General Court under the Colony Charter of 1628,
By the Province Charter of 1692, “a Great and General Court or Assembly ” was established, to consist of the Governor appointed by the Crown, and twenty-eight councillors chosen annually by the General Court, subject to the Governor’s nega
In 1694 an unsuccessful attempt was made to secure to the House of Representatives all the rights of the House of Commons. The General Court passed an act declaring “ that the House of Representatives of the people of this Province, being a part of the Great and General Court or Assembly, have, by their Majesties’ most gracious Charter, undoubted right to all the liberties and privileges of an English assembly; ” “ and that, when and so often as any motion is made to the House of Representatives for the granting of any money to be levied of the people of this Province, the said House of Representatives ought particularly to be advised what uses and improvement such money is to be raised for; ” “ and that no public money be or ought to be disposed of by his Excellency the Governor and Council, but for the uses and intents of and according to the acts by which the said money is raised.” But this act was disallowed by the King in Council.
The resolve sent up by the House of Representatives with the tax bills in 1703, declaring, “ that it is the undoubted privilege of this House that their concurrence be had in the particular application and disposal of all and every sum and sums that are put into the Treasury, so far as it can be practised,”
Among the precedents transmitted to us is an order*of the Council, concurred by the House, in 1750, directing that certain pieces of silver in the Treasury, being of a baser alloy than dollars, be not paid out by the Treasurer in any payments whatsoever, but be retained in the Treasury for the further order and disposal of the General Court.
In the early years of the Province, the House of Representatives claimed, as incidental to the right to originate supplies, the right to examine the accounts, before payment of any money under warrant of the Governor and Council; and before 1721 clauses to that effect were inserted in the supply bills. But
In 1730 amendments proposed by the Council, increasing the smn allowed in a bill passed by the House for the support of the Governor, were non-concurred by the House, and the two Houses then held a conference upon the subject, at which the Governor was present; and one of the amendments of the Council was afterwards concurred by the House. Upon which Governor Hutchinson observes, “ This was a matter of money, which the House sometimes refuse to confer upon; but they have been unsteady in this respect.”
In 1753, the Council having amended a resolution of the House requiring the Province Treasurer to give bond, the House sent up a message, in which they said, “ The Honorable Board cannot but know that all grants of money and taxes must originate with the House, and never till lately did the Honorable Board presume to make alteration in any such grants or bills.” To which the Council replied: “ The right of the House to originate all taxes and grants of money has never been disputed by the Board. But that the House have a right of making certain things necessary to qualify a Province Treasurer, and that the Board are held to agree to all or none of such qualifications, without the liberty of making any amendment to the vote or resolve of the House, is a position, which, until now, has never been laid down by any House of Representatives since the Charter; nor can the Board by any means concede to it.” And the Council suggested that the House should prepare a bill more fully and explicitly settling the security to be required of the Treasurer. The House prepared such a bill, which was by the Council “ concurred, as taken into a new draft,” and then concurred by the House.
At the same session, a vote of the House, allowing a certain sum to the Treasurer, had been non-concurred by the Council as not making adequate compensation to him, upon a report of a committee of the Council, which stated, among other things, that “ the committee are very sensible that the Board have no right to enlarge any grant made by the House.”
Among the precedents transmitted to us by order of the two Houses are the' remonstrance of the House of Representatives in 1759 against the issue, by the Council, of warrants on the Province Treasurer for paying the expenses of the funeral of Lieutenant-Governor Phipps, as “a misapplication of the public moneys, and unwarrantable, and which proceedings the House do remonstrate against as an infraction upon our Constitution; ” and the
In 1760, the Treasurer’s accounts for a previous year having been examined by a committee of each House respectively, the committee of"the House of Representatives made their report to the House, which, by vote, accepted the same, and resolved that the Treasurer be discharged of several sums, and accountable for several other sums therein mentioned. The Council concurred in the vote, amending it, however, by striking out the preliminary words as to the acceptance of the report of the committee of the House, because, as they said in a message to the House, the Treasurer could be discharged only by act or order of the whole Legislature, and the Council chose “ to see with their own eyes, and not with the eyes of the committees of the House.”
The House non-concurred in the amendment, and, in a message to the Council, said: “ The Ho.use are sensible that an act or order of the whole General Court is requisite for the Treasurer’s discharge; but the practice lately gone into by the Honorable Board, of a special examination of the Treasurer’s accounts, is novel, and not within the rights belonging to them, either as the King’s Council or as one branch of the Legislature. The House challenge as their special rights and privileges the sole modelling all laws for imposing taxes upon the people for the defence and support of government, also have power to inquire into and judge of the uses and occasions for which moneys are demanded or given, and to appropriate the same, and to inquire into the applications, and to censure the misapplications thereof;
The Council, in their reply, cautiously avoided admitting or denying, as not being involved in the question at issue, either the claim of the House to the exclusive right of appropriating moneys, or the assertion of the House that the Council had no right of amendment, saying: “The House seem to have mistaken the intention of the Board. The exception which the Board take to the vote of the House relates merely to the form of it. In answer to this exception, the House urge their right to originate and frame all laws for imposing taxes, to judge of the uses for which all moneys are granted, and to appropriate all such moneys as they think fit. The board deny none of these things; but they are all entirely out of the question. The House go on to say that they have a right of inquiry into the application of all public moneys, and that, in all those cases mentioned, the Board have no right to make any amendments upon the votes of the House. That the House have a right to make such inquiry the Board do not deny; that the Board have no right to amend any votes of the House in any of these cases will be conceded to or denied when there is occasion to determine this point. At present there is none; for the vote of the House, which is the subject of the present dispute, cannot respect such an inquiry as the House claim a right to, any more than it respects the other matters mentioned by the House. The application of the public
The House afterwards passed a vote exactly like the former one, except in omitting the clause objected to by the Council, and inserting a recital that the Treasurer’s account had not been accepted, “by reason of some disagreement between the two Houses in point of form, wMch may be attended with great in convenience to the Province, if not timely prevented.” And in this vote the Council concurred.
In the same year, an order of the Council, accepting the report of a committee, farming out an excise for the county of Dukes County, for the year 1759, to Wilmot Wass, for a certain sum, and taking his bond with sureties to the Province Treasurer, was non-concurred by the House, solely because “ the committee have not exhibited an account of charge on tMs affair, as has been usual in the like cases.”
In January 1765 a resolve of the House, concerning the form of drawing moneys by the Province Treasurer out of the hands of the agent of the Province in England, was in the Council “ concurred, taken in a new draft.” The House objected, solely because the draft of the Council was headed “ House of Representatives ; ” and in a message to the Council, said: “ The Honorable Board have an undoubted right in all cases (except those of grants and money bills) to bring any vote or bill sent up from the House into a new draft. But then such new draft should be
In March 1765, in a message to the House, remonstrating against their having, without joining the Council, and after the Council had non-concurred a vote of the same import, published a notice to all officers and soldiers desiring of grants of land for actual settlement, to give in their names to a committee of the House, the Council observed, “ That the House have considered their right to originate grants of land as similar to their right of originating grants of money is allowed;” but no exclusive privilege of the House as to either was admitted by the Council, or claimed in the messages of the House.
Governor Hutchinson, in his History, writing of the same period, says: “ It was a rule in joint committees, when the subject of consideration related to taxes, for the chairman to offer the report in Council, where it was read, and sent down to the House to originate a vote. In all other cases, the Council originated a vote upon the report, and sent the vote to the House, with the report, for concurrence.”
As the controversy between England and the Colonies upon the right of taxation grew more earnest, the House of Representatives of the Province sometimes asserted, and ultimately the Council in practice seemed to recognize, a more extensive privilege in the immediate representatives of the people. For instance, the House of Representatives, in a message to the Governor in 1767, contended that the clause in the Province Charter, which provided that the Governor and Council should have authority to issue money out of the Treasury only according to such acts as were or should be in force within the Prov
We have been led to state such precedents under the Provincial government as were known to us, having any connection with the subject, at the greater length, because many of them exist only in manuscript or in very rare pamphlets, and because, if they had proved a consistent, uninterrupted and uncontested usage for a long course of years, they might have colored the meaning of the language of the Constitution adopted at the Revolution. But, so far as we can judge from the means at our command, the precedents of the time of the Province fall far short of proving that the House of Representatives habitually exercised in Massachusetts the privileges claimed by the House of Commons in England, or that it was a settled doctrine that a bill appropriating money from the Province Treasury, and not, ‘ in terms or effect, imposing any tax upon the people, must originate in the House of Representatives.
We are then brought to a consideration of the question of the meaning of the words “ money bills,” as understood at the time of the adoption of the Constitution of the Commonwealth, and in which they must be presumed to have been used by the framers of that instrument. Upon this point the evidence appears to us to be satisfactory and conclusive.
The bill of 1660, called on the Journal of the Commons
In 1700, the first time, so far as we are aware, when the term “money bill” appears on the parliamentary journals, it is as equivalent to a bill for raising money. The Lords, in protesting against the tacking by the Commons, of a bill for applying certain forfeited estates to the use of the public, to a bill for granting an aid by a land tax, said: “ The joining together in a money bill things so totally foreign to the methods of raising money, and to the quantity or qualification of the sums to be raised, is wholly destructive of the freedom of debates, dangerous to the privileges of the Lords and to the prerogative of the Crown; for by this means things of the last ill consequence to the nation may be brought into money bills, and yet neither the Lords nor the Crown be able to give their negative to them without hazarding the public peace and security.”
Lord Somers, in his letter to the Secretary of State in 1698, already quoted,
Sir William Blackstone, (of whose Commentaries, first published in 1765, nearly as many copies were said, ten years after-
Although Blackstone differs from Lord Somers and Lord Hardwieke so far as to include a local tax, all three concur in excluding bills by which no tax whatever is raised, from the definition of money bills. And the most eminent constitutional historian of England agrees rather with Somers and Hardwicke than with Blackstone, and says, “ I must confess, that when the wise and ancient maxim, that the Commons alone can empower the King to levy the people’s money, was applied to a private bill for lighting and cleansing a certain town, or cutting dikes in a fen, to local and limited assessments for local benefit, (as to which the Crown has no manner of interest, nor has anything to do with the collection,) there was more disposition shown to make encroachments than to guard against those of others.”
Mr. Hallam, throughout his discussion of “ money bills,” treats it as their essential characteristic that they grant money from the people to the Crown.
The Constitution proposed by the General Court of Massachusetts, and rejected by the people in 1778, contained the following
In the Convention of 1787 which framed the Constitution of the United States, after repeated attempts to confer upon the national House of Representatives the exclusive right of originating “bills for raising or appropriating money,”
According to many authorities of the greatest weight, the term “ bills for raising revenue,” as here used, is exactly equivalent to “ money bills.” In 1788, in the Convention of Massachusetts which ratified the Federal Constitution, Increase Sumner, then a Justice of the Supreme Judicial Court, and afterwards Governor of the Commonwealth, said that one security in the hands of the people under this Constitution was, that “ all money bills are to originate with the House of Representatives.” And Theophilus Parsons said, “ Under this Constitution, an equal representation immediately from the people is introduced, who by their negative, and the exclusive right of originating money bills, have the power to control the Senate, where the sovereignty of the States is represented.”
In the face of this accumulation of authorities, English and American, the use of the words “ money bills ” in some recent treatises,
Questions of the construction of a Constitution which has been long in force are not to be decided by a mere interpretation of the language of the instrument, but are in a great degree historical questions, upon which the practical exposition by those branches of the government charged with the duties of administration and legislation, especially if nearly contemporaneous with the establishment of the Constitution, and followed and acquiesced in for a long period of years afterwards, is never to be lightly disregarded, and is often conclusive.
The Constitution of the Commonwealth contains the following provisions: “No subsidy, charge, tax, impost or duties ought to be established, fixed, laid or levied, under any pretext whatsoever, without the consent of the people, or their representatives in the Legislature.”
In the opinions required by the two Houses, and delivered by the Justices of the Supreme Judicial Court in 1781, affirming the equal right of the Senate with the House of Representatives in examining and adjusting the lists of valuation returned from the several towns as a rule for their future conduct in making laws imposing public taxes, Chief Justice Cushing said, “ I suppose a money bill to be a bill imposing a direct tax upon the people; ” and each of his associates, more or less distinctly, concurred in that view. All these judges had been members of the Convention that framed the State Constitution the year before; and peculiar respect is due to the opinion, expressed in such a way as to show that it had not occurred to him there could be a doubt upon the matter, of Chief Justice Cushing, who was a member of the highest court of judicature of the Province and of the State from 1772 to 1789, and who was appointed by President Washington the first Associate Justice, and afterwards Chief Justice, of the Supreme Court of the United States, but declined the latter office. It is also to be noticed that he and his associates did not consider the usage under the English Constitution or the Royal Charter as controlling the construction of the Constitution of the Commonwealth, under which senators as well as representatives are elected directly by the people.
The lists, transmitted to us by order of the two Houses,
This course of proceeding, at least as far as regards bills or resolves appropriating and directing the payment of money from the Treasury, was not established without early and thorough discussion of the question whether such bills or resolves were money bills within the meaning of the Constitution.
On June 5, 1783, a resolve, “ granting £3 18s. 6d. to Samuel Hinckley in full for conveying letters from the Sheriff of Hampshire to the General Court,” was passed by the Senate, and sent down for concurrence. The House non-concurred, and referred the account 'of Mr. Hinckley to a committee, and afterwards originated and sent up a like resolve. On June 13, according to an entry in the Senate Journal, “ The question being put, whether it be the opinion of the Senate that a bill or resolve for granting money out of the public Treasury may originate in the Senate, — that clause in the Constitution, ‘ All money bills shall originate in the House of Representatives,’ notwithstanding,— it passed in the affirmative, seventeen out of twenty.” On June 20, both Houses appointed committees of conference upon the subject of the resolve, the chairman of the committee on the part of the House being Theodore Sedgwick, afterwards Speaker of the national House of Representatives, and a Justice of the Supreme Judicial Court of the Commonwealth. On July 4 this committee reported to the Senate as follows: “ Consider-
“Whereas His Honor the Lieutenant-Governor, on the twenty-second day of February last, in his message to the Honorable House of Representatives, laid before the said House a letter from the delegates of this Commonwealth in Congress, whereby information was received that the said delegates had drawn a bill of exchange on the Treasurer for two hundred and sixty Mexican dollars, in consequence whereof a resolve has passed the said House of Representatives to request the Governor, with the advice of the Council, to issue his warrant for the payment of the said sum, and directing the Treasurer to discharge the said draft, which resolve has this day been concurred; and whereas it is the undoubted and acknowledged privilege of the Senate, equally with the House of Representatives, to originate grants of money, by reason whereof the said message ought to have been directed to both branches of the Legislature, and as the silence of the Senate on the subject might be construed as a relinquishment of the privilege aforenamed: it is therefore hereby declared, that the privilege aforesaid is the undoubted right of the Senate, and that the proceedings aforesaid ought not to be, nor shall the same at any future time be, drawn into precedent. Ordered, that the above declaration be entered on the journal.”1
We have not been furnished with any precedents later than 1790, and it is assumed in the carefully prepared opinions of the presiding officers of each House, which have been transmitted to us, that the right of originating bills appropriating money from the Treasury was habitually exercised by the Senate from 1783 to 1868. During that period two Conventions to revise and amend the Constitution of the Commonwealth were held, the one in 1820, the other in 1853; in neither of which, so far as we are informed, was the subject mentioned in any way, except that on May 17,1853, an order was adopted to inquire into the expe
The conclusion appears to us inevitable, that the construction undoubtingly assumed by the Justices of the Supreme Judicial Court in advising the two Houses of the Legislature in 1781, and deliberately considered and determined by concurrent action of the Senate and House of Representatives two years later, and acquiesced in without further contest for eighty-five years after-wards, must be deemed to have been thereby established as the true construction of the Constitution.
This conclusion is fortified by considering the reason on which the privilege of the House of Commons rests, which is well stated by Blackstone, as follows: “ The Lords, being a permanent hereditary body, created at pleasure by the King, are supposed more liable to be influenced by the Crown, and, when once influenced, to continue so, than the Commons, who are a temporary elective body, freely nominated by the people. It would therefore be extremely dangerous to give the Lords any power of framing new taxes for the subject: it is sufficient that they have a power of rejecting, if they think the Commons too lavish or improvident in their grants.”
Even in the Constitution of the United States, under which the senators are not elected by the people, but by the Legis
The result is, that, having regard to the history of the subject, to the settled meaning of the words “ money bills ” at the time of the adoption of the Constitution of the Commonwealth, and to the contemporaneous construction of that Constitution by the Justices of the Supreme Judicial Court and by both Houses of the Legislature, affirmed by a continuous and uniform practice of eighty-five years, we are of opinion that the exclusive constitutional privilege of the House of Representatives to originate money bills is limited to bills that transfer money or property from the people to the State, and does not include bills that appropriate money from the Treasury of the Commonwealth to particular uses of the government, or bestow it upon individuals or corporations; and
First. The Senate can, under the provisions of chapter 1, section 3, article 7, of the Constitution, originate a bill or resolve appropriating money from the Treasury of the Commonwealth.
Second. The Senate can, under those provisions, originate a bill or resolve involving directly or indirectly the expenditure of money from the Treasury, or imposing a burden or charge thereon.
Third. The power to originate a bill appropriating money from the State Treasury is not limited by the Constitution to the House of Representatives;, but resides in both branches of the Legislature.
Horace Gray.
James D. Colt.
Seth Ames.
Marcus- Morton.
William C. Endicott.
Otis P. Lord.
Augustus L. Soule.
Boston, December 31 1878
A duplicate of this opinion was addressed to the Honorable the House of Representatives.
Senate Doc. 1878, No. 235.
Senate Doc. 1869, No. 275.
House Doc. 1878, No. 310.
House Doc. 1868, No. 250. House Journal, 1869, p. 630.
Senate Doc. 1878, No. 252. House Doc. 1878, No. 356.
Senate Doc. 1878, No. 253.
9 Cush. 605.
Chap. 1, sect 3, art. 7.
Chap. 3, art 2.
Journal of Convention of 1779-80 (ed. 1832) 211, 242.
Stafford’s case, Year-Book 1 H. VII. fol. 26, pl. 1. Lord Coke, in Peackam’s case, 2 Howell’s State Trials, 871. 3 Inst. 29. Foster’s Crown Law, 200. Co. Lit. 110, Hargrave’s note.
Fenwick’s case, Fortescue, 385.
Paty’s case, 14 East, 92, note; 14 Howell’s State Trials, 861, note.
Lord George Sackoille’s case, 2 Eden, 371.
13 Gray, 618.
11 Cush. 604.
3 Cush. 586.
1 Allen, 197, note.
M’Nagh ten’s case (1843) 10 Cl. & Fin. 200, 212-214.
4 Inst. 15, 50. 13 Rep. 63.
4 Inst. 50.
O. Bridgm. 329, Hargrave’s note. Coke’s Answer to King James I. about Bonham’s case, 6 Bacon’s Works (ed. 1803) 405,407. Prynne’s Fourth Register, 648.
Earl of Arundel’s case, Rot. Parl. 27 H. VI. No. 18.
Thorp’s case, Rot. Pari. 31 & 32 II. VI. Nos. 25, 26, 27.
Year-Book 33 H. VI. fol. 17, pi. 8.
1 Anderson, 294, pi. 303.
Lake v. King, 1 Saund. 131, 183.
Ferrer’s case, 1 Hatsell’s Precedents (3d ed.) 54.
Pledall’s case, 1 Commons’ Journals, 46; Prynne’s Fourth Register, 1213, 1214; 1 Hatsell, 74.
3 Lords’ Journals, 155, 157. 1 Hatsell, 177, note.
4 Inst. 13.
6 Foss’s Judges of England, 166, 330, 366.
St. 21 Jac. I. c. 33; 4 Sts. of the Kealm, pt. ii. 1247. 3 Lords’ Journals, 106, 408.
Burnham’s case, 14 Gray, 226, 238. Whitcomb’s case, 120 Mass. 118, 122.
Opinion of Justices, 120 Mass. 600.
Ansioer of Justices, 122 Mass. 600.
Const. Mass. chap. 1, sect. 3, art 10. 3 Pick. 517. 11 Pick. 538. 18 Pick. 575. 23 Pick. 547. 1 Met. 580. 5 Met. 587, 591. 10 Gray, 613. 122 Mass. 594.
Opinions of Justices, ante, 547.
The Indemnity of the Lords and Commons, Rot. Pari. 9 H. IV. No. 21. 8 Hatsell (2d ed.) 133. 4 Inst. 29. Dyer, 43 b. 3 Hallam’s Const. Hist. (7th ed.) 27-29.
1 Commons’ Journals, 910, 914, 915, 919. 3 Lords’ Journals, 858, 860, 879. St. 3 Car. I. c. 8; 5 Sts. of the Realm, 39.
2 Commons’ Journals, 13. 3 Hatsell, 102, & note. 1 Clarendon’s Hist, (ed. 1849) 190.
8 Commons’ Journals, 98, 102. 11 Lords’ Journals, 105, 109. St. 12 Car. II. c. 4; 5 Sts. of the Realm, 181.
3 Hatsell, 136. Hale on Parliaments, 65, 66. Report of Select Com mittee on Tax Bills, 1860, appendix, pp. 7, 12, 13. 3 Hallara, 30.
9 Commons’ Journals, 235, 239. 3 Hatsell, 110, 368, 370, 371.
9 Commons’ Journals, 509. 3 Hatsell, 112, 137, 407.
9 Commons’ Journals, 244, 515.
3 Hallam, 32. 1 May’s Const. Hist.. (Am. ed.) 444. May’s Law at Parliament (7th ed.) 575.
3 Hatsell, 112, 113.
3 Hatsell, 114-117, 120, 130.
11 Commons’ Journals, 728, 739. 3 Hatsell, 117.
3 Hatsell, 115, & note (1692); 124, note (1742).
May’s Law of Parliament, 579, 580. Report of Select Committee on Tax Bills, 1860, pp. xii, xiii; appendix, p. 87.
16 Pari. Hist. 99.
2 Burke’s Works (Am. ed. 1839) 33.
1 Hargrave’s Juridical Arguments, 394-402. 3 Hatsell, 175-181. 2 Hal-lam, 356-358. 3 Hallam, 115-117.
3 Hatsell, 173-178.
10 Commons’ Journals, 646, 654, 669. 3 Hatsell, 115, 435, 438, 451
13 Commons’ Journals, 899, 903. 3 Hatsell, 119.
11 Commons’ Journals, 606, 607. 3 Hatsell, 116.
11 Commons’ Journals, 732. 3 Hatsell, 144.
15 Commons’ Journals, 649. 3 Hatsell, 122.
19 Commons’ Journals, 142-144. 3 Hatsell, 122.
22 Commons' Journals, 138. 3 Hatsell, 124.
3 Hatsell, 125. 9 Chandler’s Debates, 236*. 9 Pari. Hist. 1268. 22 Commons’ Journals, 717.
3 Hatsell, 62, 63.
3 Hatsell. 132.
3 Hatsell, 138-140. The references to this volume of Hatsell throughout this opinion are to the second English edition, which is the earliest accessible.
23 Pari. Hist. 895. 3 Hatsell, 129.
39 Commons’ Journals, 858. 3 Hatsell, 83, 184. 1 May’s Const. Hist. 72-81.
3 Hallam, 32.
May’s Law of Parliament, 576, 578.
2 Hardwicke Papers, 434.
1 Chalmers Opinions, 263.
1 Mass. Col. Rec. 12.
1 Mass. Col. Rec. 77, 82, 89, 93.
1 Winthrop’s Hist. New England, 70.
1 Mass. Col. Rec. 117, 118.
2 Mass. Col. Bee. 58.
1 Prov. Laws (State ed.) 11, 12, 16, 17.
1 Prov. Laws, 170, & note.
General Court Records, July 23, 1703.
2 Hutchinson’s Hist. Mass. (2d ed.) 294. Messages of the House and the Governor, September 18,19,1762, and of the House and Council, November 6, 1765, in General Court Records. Mass. State Papers, 1765-75 (ed. 1818) 52-56.
General Court Records, February 14, 1750.
General Court Records, January 12, 23, February 17,1749; January 16, 22, April 22, June 13, December 31,1760; January 16,1761; June 7, November 6,1764; January 17, 1765; January 9, 1768; June 24, 1771, and-April 17, 1772.
General Court Records, February 23, 26, 1765.
General Court Records, November 20, 1770; July 7, 1772.
2 Prov. Laws, 574,701-703. 2 Hutchinson, 378. 4 Palfrey’s Hist. Hew England, 545.
General Court Records, October 1-14,1730. 2 Hutchinson, 373, & nota
Genera] Court Records, June 6-13, 1753.
General Court Records, February 20-26, 1756.
General Court Records, February 3, 6, 1756.
General Court Records, April 17, 1759.
General Court Records, February 8, 1759.
General Court Records, January 3-16, 1760.
General Court Records, January 16, 17, 1760.
General Court Records, January 30, 1760.
General Court Records, June 20, 1760.
House Journal, February 7, 1760.
General Court Records, March 27, April 7,1761.
General Court Records, January 28, 30, February 7, 1765.
General Court Records, June 17, 1764; March 8, 9, 1765.
3 Hutchinson, 113, note. 4 3 Hutchinson, 90, note.
General Court Records, February 4, 1767. Mass. State Papers, 106.
General Court Records, July 3, 1771; July 14, 1772; March 4, 1773; June 10, 1774.
8 Commons’ Journals, 102.
6 Grey’s Debates, 110. 4 Pari. Hist. 1005.
Acherley’s Britannic Constitution, 398.
9 Commons’ Journals, 239, 243. 3 Hatsell, 372, 390.
16 Lords’ Journals, 575. 3 Hatsell, 197.
2 Hardwicke Papers, 434.
12 Pari. Hist. 144.
2 Burke’s Works, 36. 2 1 Bl. Com. 169, 170.
3 Hallam, 31, 32. 4 1 HaUam, 276. 3 Hallam, 27-32.
1 May’s Const. Hist. 448.
■ Journal of Convention of 1779-80, appendix, 261. Bradford’s Hist. Mass, appendix, 471.
Parsons’s Life of Parsons, 48-51, 394.
Debates in Massachusetts Convention of 1788 (ed. 1856) p. 193.
Madison Papers, 1024, 1228, 1305, 1316, appendix, xvii.
Madison Papers, 1531,1609. Const. U. S. art. 1, sect. 7.
Debates in Massachusetts Convention of 1788, pp. 163, 191.
Federalist, No. 58. Introduction to Dawson’s edition.
1 Wilson’s Works, 445. 2 Wilson’s Works, 161.
Story on the Constitution, §§ 871, 873.
Cushing’s Law and Practice of Legislative Assemblies, §§ 2304, 2361, 2369. 1 Todd’s Parliamentary Government, 525. Cox’s Institutions of the English Government, 198.
1 Kent Com. 465, & note. Story on the Constitution, § 408. Cooley Const. Lim. 69.
Surgett v. Lapice, 8 How. 48, 68. Commonwealth v. Lochoood, 109 Mass. 323, 339. Commonwealth v. Costley, 118 Mass. 1, 36.
Stuart v. Laird, 1 Cranch, 299, 309. M’Culloch v. Maryland, 4 Wheat. 316, 401. Portland Bank v. Apthorp, 12 Mass. 252, 257. Commonwealth v Parker, 2 Pick. 550, 556. Holmes v. Hunt, 122 Mass. 505, 516.
12 Mass. 257.
Declaration of Eights, art. 23.
Chap. 1, sect. 1, art. 1.
Chap. 1, sect. 1, art. 4.
Chap. 1, sect. 3, art. 7.
Opinions of Justices, ante, 547.
Senate Doc. 1878, No. 253.
Chap. 1, sect. 2, art. 2; sect- 3. arts. 2, 3, 4.
Senate and House Journals. 1783. President Pitman’s Opinion, Senate Doc. 1869, Ho. 275, pp. 8-10
Senate Journal, 1785. Senate Doe. 1869, No. 275, pp. 10, 11.
Documents of Convention of 1853, No. 21. 1 Debates in Convention of 1853, pp. 160, 425.
Sts. 1858, cc. 1,11.
Senate Doc. 1869, No. 275, pp. 15, 22.
1 Bl. Com. 169.
Madison Papers, 1316, note. 2 Ibid. 856, 1267, 1271.
Ibid. 857. 4 Ibid. 1271.
Ibid. 1041, 1097,1267, 1271, 1308.
Ibid. 1043,1266, 1272.
Chap. 1, sect. 2, art. 1; sect. 3, art. 1.
Amendments 21, 22.