Jefferson, Thomas, 1743-1826
. A MANUAL OF PARLIAMENTARY PRACTICE /
From The Writings of Thomas Jefferson: Volume 2
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A MANUAL OF PARLIAMENTARY PRACTICE.
INTRODUCTION.
THE Constitution of the United States, establishing a Legislature for the
Union under certain forms, authorizes each branch of it "to determine the rules
of its own proceedings." The Senate have accordingly formed some rules for
its own government: but those going only to few cases, they have referred to
the decision of their President, without debate and without appeal, all
questions of order arising either under their own rules, or where they have
provided none. This places under the discretion of the President a very
extensive field of decision, and one which, irregularly exercised, would have a
powerful effect on the proceedings and determinations of the House. The
President must feel, weightily and seriously, this confidence in his
discretion: and the necessity of recurring, for its government, to some known
system of rules, that He may neither leave himself free to indulge caprice or
passion, nor open to the imputation of them. But to what system of rules is He
to recur, as supplementary to those of the Senate? To this there can be but
one answer: to the. systems of regulations adopted by the government of some
one of the parliamentary bodies within these States, or of that which has
served as a prototype to most of them. This last is the model which we have
studied; while we are little acquainted with the modifications of it in our
several States. It is deposited, too, in publications possessed by many, and
open to all. Its rules are probably as wisely constructed for governing the
debates of a considerative body, and obtaining its true sense, as any which
can become known to us; and the acquiescence of the Senate hitherto under the
references to them, has given them the sanction of their approbation.
Considering, therefore, the law of proceedings in the Senate as composed of
the precepts of the Constitution, the regulations of the Senate, and where
these are silent, of the rules of Parliament, I have here endeavored to collect
and digest so much of these as is called for in ordinary practice, collating
the parliamentary with the senatorial rules both where they agree and where
they vary. I have done this, as well to have them at hand for my own government, as to deposit
with the Senate the standard by which I judge and am willing
to be judged. I could not doubt the necessity of quoting the sources of my
informa-
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tion; among which Mr. Hatsel's most valuable book is preeminent; but as He has
only treated some general heads, I have been obliged to recur to other
authorities, in support of a number of common rules of practice to which his
plan did not descend. Sometimes each authority cited supports the whole
passage. Sometimes it rests on all taken together. Sometimes the authority goes
only to a part of the text, the residue being inferred from known rules and
principles. For some of the most familiar forms, no written authority is or can
be quoted; no writer having supposed it necessary to repeat what all were
presumed to know. The statement of these must rest on their notoriety.
I am aware, that authorities can often be produced in opposition to the rules
which I lay down as parliamentary. An attention to dates will generally remove
their weight. The proceedings of Parliament in ancient times, and for a long
while, were crude, multiform, and embarrassing. They have been, however,
constantly advancing towards uniformity and accuracy; and have now obtained a
degree of aptitude to their object, beyond which little is to be desired or
expected.
Yet I am far from the presumption of believing, that I may not have mistaken
the parliamentary practice in some cases; and especially in those minor forms,
which, being practiced daily, are supposed known to everybody and therefore
have not been committed to writing. Our resources in this quarter of the globe,
for obtaining information on that part of the subject, are not perfect. But I
have begun a sketch, which those who come after me will successively correct
and fill up, till a code of rules shall be formed for the use of the Senate,
the effects of which may be accuracy in business, economy of time, order,
uniformity, and impartiality.
NOTE. The rules and practices peculiar to the Senate are printed in small type.
Those of Parliament are in large.
THE IMPORTANCE OF ADHERING TO RULES.
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A MANUAL OF PARLIAMENTARY PRACTICE:
IMPORTANCE OF RULES.
SECTION I.
THE IMPORTANCE OF ADHERING TO RULES.
MR. Onslow, the ablest among the Speakers of the House of Commons, used to say,
" It was a maxim He had of ten heard when He was a young man, from old and
experienced members, that nothing tended more to throw power into the hands of
administration and those who acted with the majority of
[JUDGE WYTHE.] (1) PHILADELPHIA, February 28, 1800.
My DEAR SIR:-I know how precious your time is, and how exclusively you devote
it to the duties of your office, yet I venture to ask a few hours or minutes of
it on motives of public service, as well as private friendship. I will explain
the occasion of the application. You recollect enough of the old Congress to
remember that their mode of managing the business of the House was not only
unparliamentary, but that the forms were so awkward and inconvenient that it
was impossible sometimes to get at the true sense of the majority. The House of
Representatives of the United States are now pretty much in the same
situation. In the Senate it is in our power to get into a better way; our
ground is this: The Senate have established a few rules for their government,
and have subjected the decisions on these and on all other points of order
without debate, and without appeal, to the judgment of their President, He, for
his own sake, as well as theirs, must prefer recurring to some system of rules
ready formed; and there can be no question that the Parliamentary rules are
the best known
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the House of Commons, than a neglect of, or departure from, the rules of
proceeding; that these forms,
to us for managing the debates, and obtaining the sense of a deliberative
body. I have therefore made them my rule of decision, rejecting those of the
old Congress altogether, and it gives entire satisfaction to the Senate ;
insomuch that we shall not only have a good system there, but probably, by the
example of its effects, produce a conformity in the other branch. But in the
course of this business I find perplexities, having for twenty years been out
of deliberative bodies, and become rusty as to many points of proceeding; and
so little has the Parliamentary branch of the law been attended to, that I not
only find no person here, but not even a book to aid me. I had, at an early
period of life, read a good deal on the subject, and common placed what I read.
This common-place has been my pillar; but there are many questions of practice
on which that is silent, some of them are so minute indeed and belong too much
to every-day's practice, that they have never been thought worthy of being
written down, yet from desuetude they have slipped my memory. You will see by
the enclosed paper what they are. I know with what pain you write: therefore I
have left a margin in which you can write a simple negative or affirmative
opposite every position, or perhaps, with as little trouble, correct the text
by striking out or interlining. This is what I have earnestly to solicit from
you, and I would not have given you the trouble if I had had any other
resource. But you are, in fact, the only spark of Parliamentary science now
remaining to us. I am the more anxious, because I have been forming a manual of
Parliamenta ry law which I mean to deposit with the Senate as the standard by
which I judge, and am willing to be judged. Though I should be opposed to its
being printed yet it may be done perhaps without my consent; and in that case I
should be sorry indeed should it go out with errors that a Tyro should not have
committed. And yet it is precisely those to which I am most exposed. I am less
afraid as to important matters, because for them I have printed authorities;
but it is those small matters of daily practice, which twenty years ago were
familiar to me, but have in that time escaped my memory. I hope under these
circumstances you will pardon the trouble I propose to you in the enclosed
paper. I am not pressed in time, so that your leisure will be sufficient for
me. Accept the salutations of grateful and sincere friendship and attachment,
and many prayers for your health and happiness from, Dear Sir, Yours
affectionately.
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as instituted by our ancestors, operated as a check, and control, on the
actions of the majority; and that they were, in many instances, a shelter and
protection to the minority, against the attempts of power."
So far the maxim is certainly true, and is founded in good sense, that as it is
always in the power of the majority, by their numbers, to stop any improper
measures proposed on the part of their opponents, the only weapons by which the
minority can defend themselves against similar attempts from those in power,
are the forms and rules of proceeding, which have been adopted as they were
found necessary from time to time, and are become the law of the house; by a
strict adherence to which, the weaker party can only be protected from those
irregularities and abuses which these forms were intended to check, and which
the wantonness of power is but too often apt to suggest to large and successful
majorities.-2 Hats. 171, 172.
And whether these forms be in all cases the most rational or not, is really not
of so great importance: It is much more material that there should be a rule to
go by, than what that rule is; that there may be a uniformity of proceeding in
business, not subject to the caprice of the Speaker, or captiousness of the
members. It is very material that order, decency, and regularity be preserved
in a dignified public body.-2 Hats. 149. And in 1698 the Lords say the
reasonable ness of what is desired is never considered by us, for we are bound
to consider nothing but what
VOL. II-22
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is usual. Matters of form are essential to government, and 'is of consequence
to be in the right. All the reason for forms is custom, and the law of forms is
practice; the reason is quite out of doors. Some particular customs may not be
grounded on reason, and no good account can be given of them; and yet many
nations are zealous for them; and Englishmen are as zealous as any others to
pursue their old forms and methods.-4 Hats. 258.
SECTION II.
LEGISLATURE
All legislative powers herein granted shall be vested in a Congress of the
United States, which shall consist of a Senate and House of Representa
tives.-Cons titution of the United States, Article I., Section I.
The Senators and Representatives shall receive a compensation for their
services, to be ascertained by law, and paid out of the treasury of the United
States.-Const. U. S., Art. I. Sec. 6.
For the powers of Congress, see the following Articles and Sections of the
Constitution of the United States:-Art . I., Sec. 4, 7, 8, 9.Art. II., Sec. 1,
2.-Art. III., Sec. 3.-Art. IV., Sec. 1, 3, 5.-And all the Amendment s.
SECTION III.
PRIVILEGE.
The privileges of the members of Parliament, from small and obscure beginnings
, have been advancing for centuries, with a firm and never-yielding pace.
Claims seem to have been brought forward from time to time, and repeated till
some example of their admission enabled them to build law on that
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example: We can only, therefore, state the point of progression at which they
now are. It is now acknowledged, lst. That they are at all times exempted from
question elsewhere, for anything said in their own house : that during the time
of privilege, 2d. Neither a member himself, his wife,(1) or his servants,
[Familiares sui] for any matter of their own, may be(2) arrested on mesne
process, in any civil suit : 3d. Nor be detained under execution, though levied
before the time of privilege : 4th. Nor impleaded, cited or subpoenaed, in any
court : 5th. Nor summoned as a witness or juror : 6th. Nor may their lands or
goods be distrained: 7th. Nor their persons assaulted, or characters traduced.
And the period of time, covered by privilege, before and after the session,
with the practice of short prorogations under the connivance of the Crown,
amounts in fact to a perpetual protection against the course of justice. In one
instance, indeed, it has been relaxed by 10 G. 3, c. 50, which permits
judiciary proceedings to go on against them. That these privileges must be
continually progressive, seems to result from their rejecting all definition
of them; the doctrine being, that " their dignity and independence are
preserved by keeping their privileges indefinite ;" and that " the maxims upon
which they proceed, together with the method of proceeding, rest entirely in
their own breast, and are not defined and ascertained by any particular stated
laws."-1 Blackstone, 163, 164.
__________
(1) Order of the House of Commons, 1663, July 16. (2) Elsynge, 217; 1 Hats. 21;
1 Grey's Deb. 133.
__________
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It was probably from this view of the encroaching character of privilege, that
the framers of our Constitution, in their care to provide that the laws shall
bind equally on all, and especially that those who make them shall not be
exempt themselves from their-operation, have only privileged "Senators and
Representatives" themselves from the single act of arrest in all cases except
treason, felony, and breach of the peace, during their attendance at the
session of their respective Houses, and in going to and returning from the
same, and from being questioned in any other place for any speech or debate in
either House.
-Const. U. S., Art. I. Sec. 6. Under the general authority "to make all laws
necessary and proper for carrying into execution the powers given them," Const.
U. S., Art. II., Sec. 8; they may provide by law the details which may be
necessary for giving full effect to the enjoyment of this privilege. No such
law being as yet made, it seems to stand at present on the following ground:-1,
The act of arrest is void, ab initio, 2 Stra. 989.-2. The member arrested may
be discharged on motion, 1 Bl. 166. 2. Stra. 990; or by Habeas Corpus under the
Federal or State authority, as the case may be; or by a writ of privilege. out
of the Chancery, 2 Stra. 989, in those States which have adopted that part of
the laws of England.-Orders of the House of Com. 1550, Feb. 20.-3. The arrest
being unlawful, is a trespass for which the officer and others concerned are
liable to action or indictment in the ordinary courts of justice, as in other
cases of unauthorized arrest.-4. The court before which the process is
returnable, is bound to act as in other cases of unauthorized proceeding, and
liable also, as in other similar cases, to have their proceedings stayed or
corrected by the Superior Courts.
The time necessary for going to and returning from Congress not being defined,
it will of course be judged of in every particular case. by those who will have
to decide the case.
While privilege was understood in England to extend, as it does here, only to
exemption from arrest eundo, morando, et redeundo, the House of Commons
themselves decided that " a convenient time was to be understood ."-1580-1
Hats. 99, 100. Nor is the law so strict in point of time as to require the
party to set out immediately on his return, but allows him time to settle his
private affairs, and to prepare. for
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his journey; and does not even scan his road very nicely, nor forfeit his
protection for a little deviation from that which is most direct; some
necessity perhaps constraining him to it.-2 Stra. 986, 987.
This privilege from arrest, privileges of course against all process, the
disobedience is punishable by an attachment of the person; as a subpoena ad
responden dum, or testificand urn, or a summons on a jury; and with reason,
because a member has superior duties to perform in another place:
When a Representative is withdrawn from his seat by summons the 47,700 people
whom He represents lose their voice in debate and vote, as they do in his
voluntary absence: when a Senator is withdrawn by summons, his State loses half
its voice in. debate and vote as it does in his voluntary absence. The enormous
disparity of evil admits no comparison .
So far there will probably be no difference of opinion as to the privileges of
the two Houses of Congress; but in the following cases it is otherwise. In Dec.
l795, the House of Representatives committed two persons of the names of
Randall and Whitney, for attempting to corrupt the integrity of certain
members, which they considered as a contempt and breach of the privileges of
the House; and the facts being proved, Whitney was detained in confinement a
fortnight, and Randall three weeks, and was reprimanded by the Speaker. In
March, l796, the House of Representatives voted a challenge given to a member
of their House, to be a breach of the privileges of the House; the satisfactor
y apologies and acknowledgments being made, no further proceedings were had.
The Editor of the Aurora having in his paper of Feb. 19, l800, inserted some
paragraphs defamatory to the Senate, and failed in his appearance, He was
ordered to be committed. In debating the legality of this order, it was
insisted in support of it, that every man, by the law of nature, and every body
of men, possesses the right of self-defence; that all public functionaries
are essentially invested with the powers of self-preservation; that they have
an inherent right to do all acts necessary to keep themselves in a condition to
discharge the trusts confided to them; that whenever authorities are given; the
means of carrying
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them into execution are given by necessary implication; that thus we see the
British Parliament exercise the right of punishing contempts; all the State
Legislatures exercise the same power; and every Court does the same; that if
we have it not, we sit at the mercy of every intruder who may enter our doors
or gallery, and by noise and tumult render proceeding in business impracticable; that if our
tranquillity is to be perpetually disturbed by newspaper
defamation, it will not be possible to exercise our functions with the
requisite coolness and deliberation; and that we must therefore have a power
to punish these disturbers of our peace and proceedings. To this it was
answered, that the Parliament and Courts of England have cognizance of
contempts by the express provisions of their law; that the State Legislature s
have equal authority, because their powers are plenary; they represent their
constituents completely, and possess all their powers, except such as their
Constitutions have expressly denied them; that the Courts of the several
States have the same powers by the laws of their States, and those of the
Federal Government by the same State laws, adopted in each State by a law of
Congress; that none of these bodies, therefore, derive those powers from
natural or necessary right, but from express law; that Congress have no such
natural or necessary power nor any powers but such as are given them by the
Constitution; that that has given them directly exemption from personal
arrest, exemption from question elsewhere for what is said in the House, and
power over their own members and proceedings; for these, no further law is
necessary the Constitution being the law; that, moreover, by that article of
the Constitution which authorizes them "to make all laws necessary and proper
for carrying into execution the powers vested by the Constitution in them,"
they may provide by law for an undisturbed exercise of their functions, e. g.
for the punishment of contempts, of affrays or tumults in their presence, &c.;
but; till the law be made, it does not exist; and does not exist, from their
own neglect; that in the meantime, however, they are not unprotected, the
ordinary magistrates and courts of law being open and competent to punish all
unjustifiable disturbances or defamations, and even their own sergeant, who
may appoint deputies ad libitum to aid him, 3 Grey, 59, 147, 255, is equal to
the smallest disturbances; that, in requiring a previous law, the Constitutio
n had regard to the inviolability of the citizen as well as of the member; as,
should one House, in the regular form of a bill, aim at too broad privileges,
it may be checked by the other, and both by the President; and also as, the law
being promulgated, the citizen will know how to avoid offence. But if one
branch may assume its own privileges without control; if it may do it on the
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spur of the occasion, conceal the law in its own breast, and after the fact
committed make its sentence both the law and the judgment on that fact; if the
offence is to be kept undefined, and to be declared only ex re nata, and
according to the passions of the moment, and there be no limitation either in
the manner or measure of the punishment the condition of the citizen will be
perilous indeed. Which of these doctrines is to prevail, time will decide.
Where there is no fixed law, the judgment on any particular case is the law of
that single case only, and dies with it. When a new and even a similar case
arises, the judgment which is to make, and at the same time apply, the law, is
open to question and consideration, as are all new laws. Perhaps Congress, in
the meantime, in their care for the safety of the citizens, as well as that for
their own protection, may declare by law what is necessary and proper to enable
them to carry into execution the powers vested in them, and thereby hang up a
rule for the inspection of all, which may direct the conduct of the citizen,
and at the same time test the judgments they shall themselves pronounce in
their own case.
Privilege from arrest takes place by force of the election; and before a return
be made, a member elected may be named of a committee, and is to every intent a
member, except that He cannot vote until He is sworn.-Me mor. 107, 108.-D'Ewe
s, 642. col. 2. 653. col. 1.-Pet. Miscel. Parl. 119; Lex. Parl.
C. 23; 2 Hats. 22. 62.
Every man must, at his peril, take notice who are members of either House
returned of record.-Le x. Parl. 23, 4-Inst. 24.
On complaint of a breach of privilege, the party may either be summoned, or
sent for in custody of the sergeant.-1 Grey, 88, 95.
The privilege of a member is the privilege of the House. If the member waive it
without leave, it is a ground for punishing him, but cannot in effect waive the
privilege of the House.-Grey, 140. 222.
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For any speech or debate in either House, they shall not be questioned in any
other place.-Cons t: U. S., Art. I. Sec. 6. S. P. protest of Commons to James
I. 162 1. 2 Rapin. No. 54. p. 211; 212. But this is restrained to things done
in the House in a Parliamentary course, 1 Rush, 663.-For He is not to have
privilege contramorem parliamentarium, to exceed the bounds and limits of his
place and duty.
-Com. p.
If an offence be committed by a member in the House, of which the House has
cognizance, it is an infringement of their right for any person or court to
take notice of it, till the House has punished the offender, or referred him to
a due course.-Le x. Parl. 63.
Privilege is in the power of the House, and is a restraint to the proceeding of
inferior courts; but not of the House itself.-2 Nalson, 450; 2 Grey; 399. For
whatever is spoken in the House, is subject to the censure of the House; and
offences of this kind have been severely punished, by calling the person to the
bar to make submission; committing him to the Tower, expelling the House,
&c.-Scob. 72; Lex. Parl. c. 22.
It is a breach of order, for the Speaker to refuse to put a question which is
in order.-Hats . 175, 176; 5 Grey, 133.
And even in cases of treason, felony, and breach of the peace, to which
privilege does not extend as to substance; yet, in Parliament, a member is
privi-
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leged as to the mode cf proceeding . The case is first to be laid before the
House, that it may judge of the fact, and of the grounds of the accusation, and
how far forth the manner of the trial may concern their privilege. Otherwise it
would be in the power of other branches of the government, and even of every
private man, under pretenses of treason, &c., to take any man from his service
in the House; and so as many, one after another, as would make the House what
He pleaseth.-Decision of the Commons on the King's declaring Sir John Hotham a
traitor-4 Rushw. 586: So when a member stood indicted of felony, it was
adjudged that He ought to remain of the House till conviction. For it may be
any man's case, who is guiltless, to be accused and indicted of felony, or the
like crime.23 EL. 1580.-D'Ewes, 283, col. 1.-Lex. Parl. 133.
When it is found necessary for the public service to put a member under arrest,
or when, on any public inquiry, matter comes out which may lead to affect the
person of a member, it is the practice immediately to acquaint the House, that
they may know the reasons for such a proceeding, and take such steps as they
think proper.-2 Hats. 259. Of which, see many examples.-2 Hats. 256, 257, 258.
But the communication is subsequent to the arrest.
-1 Blackst. 167.
It is highly expedient, says Hatsell,.for the due preservation of the,
privileges of the separate branches of the Legislature, that neither should
encroach on
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the other, or interfere in any matter depending before them, so as to preclude,
or even influence, that freedom of debate, which is essential to a free
council. They are, therefore, not to take notice of any bills or other matters
depending, or of votes that have been given, or of speeches that have been
held, by the members of either of the other branches of the Legislature, until
the same have been communicated to them in the usual Parliamentary manner.-2
Hats. 252; 4 Inst. 15; Seld. Fud. 63. Thus the King's taking notice of the
bill for suppressing soldiers depending before the House, his proposing a
provisional clause for a bill before it was presented to him by the two Houses,
his expressing displeasure against some persons for matters moved in Parliament
during the debate and preparation of a bill, were breaches of privilege. -- 2
Nalson, 743. And in 1783, December 17, it was declared a breach of fundamental
privileges, &c., to report any opinion or pretended opinion of the King, on any
bill or proceeding depending in either House of Parliament, with a view to
influence the votes of the members.2 Hats. 251, 6.
SECTION IV.
ELECTIONS .
The times, places, and manner of holding elections for Senators and Representatives, .shall be
prescribed in each State by the Legislature thereof; but the
Congress may at any time by law make or alter such regulations, except as to
the place of choosing Senators.-Const. U. S. Art. I: Sec. 4.
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Each House shall be the judge of the elections, returns, and qualifications of
its own members.-Const. U. S. Art. I. Sec. 5.
SECTION V.
QUALIFICATIONS.
The Senate of the United States shall be composed of two Senators from each
State, chosen by the Legislature thereof, for six years; and each Senator shall
have one vote.
Immediately after they shall be assembled, in consequence of the first
election, they shall be divided as equally as may be into three classes. The
seats of the Senators of the first class shall be vacated at the end of the
second year; of the second class, at the expiration of the fourth year; and of
the third class, at the expiration of the sixth year; so that one-third may be
chosen every second year; and if vacancies happen, by resignation or otherwise,
during the recess of the Legislature of any State, the Executive thereof may
make temporary appointments, until the next meeting of the Legislature, which
shall then fill such vacancies.
No person shall be a Senator, who shall not have attained to the age of thirty
years, and been nine years a citizen of the United States, and who shall not,
when elected, be an inhabitant of that State for which He shall be chosen.-Co
nst. U. S., Art. I. Sec. 3.
The House of Representatives shall be composed of members chosen every second
year by the people of the several States; and the electors in each State
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shall have the qualifications requisite for electors of the most numerous
branch of the State Legislature .
No person shall be a Representative who shall not have attained to the age of
twenty-five years, and been seven years a citizen of the United States, and
who shall not, when elected, be an inhabitant of that State in which He shall
be chosen.
Representatives and direct taxes shall be apportioned among the several
States which may be included within this Union, according to their respective
numbers, which shall be determined by adding to the whole number of free
persons, including those bound to service for a term of years, and excluding
Indians not taxed, three-fifths of all other persons. The actual enumeration
shall be made within three years after the first meeting of Congress of the
United States, and within every subsequent term of ten years, in such manner as
they: shall by law direct. The number of Representatives. shall not exceed one
for every thirty thousand;. but. each State shall have at least one Representative. -- Const. U. S.
Art. I. Sec. 2.
The provisional apportionments of Representatives made in the
Constitution in 1787, and afterwards by Congress, were as follows:-
1787 1793 1801 1813
New Hampshire, . . . . . . . . . 3 4 5 6
Massachusetts,. ., . ., ,, 8 14 17 20
Rhode Island,...., . ,,,, 1 2 2 2
Connecticut,.., ,,,, 5 7 7 7
Vermont, . . ... ... ,.. . .. 2 6 6
New York,.. ,.., " . ... 6 10 17 27
New Jersey,. . ... . . . . 4 5 6 6
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1787 1793 1801 1813
Pennsylvania,........, 8 13 18 23
Delaware,... . ......,, . 1 1 1 2
Maryland,.. ,,.., ,, ,, . 6 8 9 9
Virginia,.... ........... 10 19 22 23
Kentucky, . 2 3 10
Tennessee, .... ...... . . 1 6
North Carolina,.. .... 5 10 12 13
South Carolina,. 5 6 8 9
Georgia,..... ......... 3 2 4 6
When vacancies happen in the representation from any State, the executive
authority thereof shall issue writs of election to fill such vacancies.-Const.
U. S. Art. I. Sec. 2.
No Senator or Representative shall, during the time for which He was elected
be appointed to any civil office under the authority of the United States,
which shall have been created, or. the emoluments whereof shall have been
increased during such time; and no person holding any office under the United
States shall be a member of either house during his continuance in office.-Con
st. U. S. Art. I. Sec. 6.
SECTION VI.
QUORUM.
A majority of each House shall constitute a quorum to do business; but a
smaller number may adjourn from day to day, and may be authorized to compel the
attendance of absent members, in such manner, and under such penalties, as each
house may provide.-Const. U. S. Art. I. Sec. 5.
In general, the chair is not to be taken till a quorum for business is present;
unless, after due waiting, such a quorum be despaired of, when the chair may be
taken, and the House adjourned. And whenever, during business, it is observed
that a quorum is not present, any member may call for the House to be counted;
and being found deficient, business is suspended.-2 Hats. 125, 126.
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The President having taken the chair, and a quorum being present, the journal
of the preceding day shall be read to the end, that any mistake may be
corrected that shall have been made in the entries. Rules of the Senate, I.
SECTION VII.
CALL OF THE HOUSE.
On a call of the House, each person rises up as He is called, and answereth ;
the absentees are then only noted, but no excuse to be made till the House be
fully called over. Then the absentees are called a second time, and if still
absent, excuses are to be heard.-Oyd H. of C. 92.
They rise that their persons may be recognized; the voice, in such a crowd,
being an inefficient verification of their presence. But in so small a body as
the Senate of the United States, the trouble of rising cannot be necessary.
Orders for calls on different days may subsist at the same time.-2 Hats. 72.
SECTION VIII.
ABSENCE.
No member shall absent himself from the service of the Senate without leave of
the Senate first obtained. And in case a less number than a quorum of the
Senate shall convene, they are hereby authorized to send the sergeant-a t-arms,
or any other person or persons by them authorized, for any or all absent
members, as the majority of such members present shall agree, at the expense of
such absent members respectively, unless such excuse for non-attendance shall
be made, as the Senate, when a quorum is convened, shall judge sufficient, and
in that case the expense shall be paid out of the contingent fund. And this
rule shall apply as well to the first convention of the Senate, at the
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legal time of meeting, as to each day of the session, after the hour is arrived
to which the Senate stood adjourned.-Rule 19.
SECTION IX.
SPEAKER.
The Vice-President of the United States shall be President of the Senate, but
shall have no vote unless they be equally divided.-Co nst. U. S. Art. I. Sec.
3.
The Senate shall choose their other officers, and also a President pro tempore
in the absence of the Vice-President, or when He shall exercise the office of
President of the United States.-Const. U. S. Art. I. Sec. 3.
The House of Representatives shall choose their Speaker and other officers.-Const. U. S. Art. I.
Sec. 3.
When but one person is proposed, and no objection made, it has not been usual
in Parliament to put any question to the House; but without a question, the
members proposing him, conduct him to the chair. But if there be objection, or
another proposed, a question is put by the clerk.-2 Hats. 168. As are also
questions of adjournment.-6 Grey, 406. Where the House debated and exchanged
messages and answers with the King for a week, without a Speaker, till they
were prorogued. They have done it de die in diem for 14 days.-1 Chand. 331,
335.
In the Senate, a President pro tempore, in the absence of the Vice-president,
is proposed and chosen by ballot. His office is understood to be determined on
the Vice-President's appearing and taking the chair, or at the meeting of the
Senate after the first recess.-Vide Rule 23.
Where the Speaker has been ill, other Speakers pro tempore have been appointed.
Instances of this
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are, 1 H. 4, Sir John Cheney, and for Sir William Sturton, and in 15 H. 6, Sir
John Tyrrell, in 1656, Jan. 27; 1658, Mar. 9; 1659, Jan. 13.
Sir Job Charlton ill, Seymour
chosen, 1673, Feb. 18. Not merely
Seymour being ill, Sir Robert Sawyer Pro tempore.
chosen, 1678, April 15. -1 Chand
Sawyer being ill, Seymour chosen. 169, 276, 7.
Thorpe in execution, a new Speaker chosen-31 H. VI.-3 Grey, 11; and March 14,
1694, Sir John Trevor chosen. There have been no later instances.-2 Hats.
161.-4 Inst.-8 Lex. Parl. 263.
A Speaker may be removed at the will of the House, and a Speaker pro tempore
appointed.2 Grey, 186; 5 Grey, 134.
SECTION X.
ADDRESS.
The President shall, from time to time, give to the Congress information of the
state of the Union, and recommend to their consideration such measures as He
shall judge necessary and expedient.-Const. U. S. Art. II. Sec. 3.
A joint address from both Houses of Parliament is read by the Speaker of the
House of Lords. It may be attended by both Houses in a body, or by a committee
from each House, or by the two Speakers only. An address of the House of
Commons only may be presented by the whole House, or by the Speaker,-9 Grey,
473; 1 Chandler, 298, 301; or by such particular members as are of the Privy
Council.
-2 Hats. 278.
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SECTION XI.
COMMITTEES.
Standing committees, as of privileges and elections, &c., are usually appointed
at the first meeting, to continue through the session. The person first named
is generally permitted to act as chairman. But this is a matter of courtesy ;
every committee having a right to elect their own chairman, who presides over
them, puts questions, and reports their proceedings to the House.-4. Inst. II,
12; Scob. 7 ;
I Grey, 112.
At these committees the members are to speak standing, and not sitting, though
there is reason to conjecture it was formerly otherwise.-D'Ewes, 630, col. 1;
4 Parl. Hist. 440; 2 Hats. 77.
Their proceedings are not to be published, as they are of no force till
confirmed by the House.-Rushw. part 3, vol. 2, 74; 3 Grey, 401; Scob. 39. Nor
can they receive a petition but through the House.-9
When a committee is charged with an inquiry, if a member prove to be involved,
they cannot proceed against him, but must make a special report to the Hottse ;
whereupon the member is heard in his place, or at the bar, or a special
authority is given to the committee to inquire concerning him.-9 Grey, 523.
So soon as the House sits, and a committee is notified of it, the chairman is
in duty bound to rise
VOL. II -- 23
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instantly, and the members to attend the service of the House.-2 Nals. 19.
It appears, that on joint committee of the Lords and Commons, each committee
acted integrally in the following instances:-7 Grey, 261, 278, 286, 338; 1
Chandler, 357, 462. In the following instances it does not appear whether they
did or not:-6 Grey,
129; 7 Grey, 213, 229, 321.
SECTION XII.
COMMITTEE OF THE WHOLE.
The speech, messages, and other matters of great concernment, are usually
referred to a committee of the whole. House-6 Grey, 311, where general
principles are digested in the form of resolutions, which are debated and
amended till they get into a shape which meets the approbation of a majority.
These being reported and confirmed by the House, are then referred to one or
more select committees, according as the subject divides itself into one or
more bills. Scob. 36, 44. Propositions for any charge on the people are
especially to be first made in a committee of the whole.-3 Hats. 127. The sense
of the whole is better taken in committee, because in all committees every one
speaks as often as He pleases. Scob. 49. They generally acquiesce in the
chairman named by the Speaker; but, as well as all other committees, have a
right to elect one, some member, by consent, putting the question.-Scob. 36; 3
Grey,
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301. The form of going from the House into committee, is for the Speaker, on
motion, to put the question that the House do now resolve itself into a
committee of the whole, to take under consideration such a matter, naming it.
If determined in the affirmative, He leaves the chair, and takes a seat
elsewhere, as any other member; and the person appointed chairman seats himself
at the clerk's table.-Scob . 36. Their quorum is the same as that of the House;
and if a defect happens, the chairman, on a motion and question, rises, the
Speaker resumes the chair, and the chairman can make no other report than to
inform the House of the cause of their dissolution. If a message is announced
during a committee, the Speaker takes the chair, and receives it, because the
committee cannot.-2 Hats, 125, 126.
In a committee of the whole, the tellers, on a division, differing as to
numbers, great heats and confusion arose, and dangers of a decision by the
sword. The Speaker took the chair, the mace was forcibly laid on the table;
whereupon, the members retiring to their places, the Speaker told the House
" He had taken the chair without an order, to bring the House into order." Some
excepted against it ;but it was generally approved as the only expedient to
suppress the disorder. And every member was required, standing up in his place,
to engage that He would proceed no further, in consequence of what had
happened in the grand committee, which was done.-3 Grey, 139.
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A committee of the whole being broken up in disorder, and the chair resumed by
the Speaker without an order, the House was adjourned. The next day the
committee was considered as thereby dissolved, and the subject again before the
House; and it was decided in the House, without returning into committee.-3
Grey, 130.
No previous question can be put in a committee; nor can this committee adjourn
as others may; but if their business is unfinished, they rise on a question,
the House is resumed, and the chairman reports that the committee of the whole
have, according to order, had under their consideration such a matter, and
have made progress therein; but not having time to go through the same, have
directed him to ask leave to sit again. Whereupon, a question is put on their
having leave, and on the time when the House will again resolve itself into a
committee.-Scob. 38. But if they have gone through the matter referred to
them, a member moves that the committee may rise, and the chairman report their
proceedings to the House; which being resolved, the chairman rises, the
Speaker resumes the chair the chairman informs him that the committee have gone
through the business referred to them, and that He is ready to make report when
the House shall think proper to receive it. If the House have time to receive
it, there is usually a cry of " Now, Now," whereupon He makes the report; but
if it be late, the cry is,
" To-morrow, To-morrow, " or,
" On Monday," etc.,
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or a motion is made to that effect, and a question put, that it be received
to-morrow, etc.-Scob. 38.
In other things the rules of proceedings are to be the same as in the
House.-Scob. 39.
SECTION XIII.
EXAMINATION OF WITNESSES .
Common fame is a good ground for the House to proceed by inquiry, and even to
accusation.-Resolution of the House of Commons, 1 Car.1,1625 ;. Rush. Lex.
Parl. 115; 1 Grey, 16. 22. 92;. 8 Grey, 21. 23.
27. 45.
WITNESSES are not to be produced but where the House has previously instituted
an inquiry, 2 Hats. l02, nor then are orders for their attendance given
blank.-3 Grey, 51. The process is a summons from the House.-4 Hats. 255. 258.
When any person is examined before a committee, or at the bar of the House, any
member wishing to ask the person a question, must address it to the Speaker or
chairman, who repeats the question to the person, or says to him, "You hear the
question
answer it." But if the propriety of the question be objected to, the Speaker
directs the witness, counsel, and parties to withdraw; for no question can be
moved, or put, or debated, while they are there.-2 Hats. 108. Sometimes the
questions are previously settled in writing before the witness enters.-2 Hats.
106, 107; 8 Grey, 64. The questions asked must be
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entered in the journals.-3 Grey, 81. But the testimony given in answer before
the House is never written down; but before a committee it must be for the
information of the House, who are not present to hear it.-7 Grey, 52, 334.
If either House have occasion for the presence of a person in custody of the
other, they ask the other their leave that He may be brought up to them in
custody.-3 Hats. 52.
A member, in his place, gives information to the House of what He knows of any
matter under hearing at the bar.-Four. H. of C., Jan. 22, 1744, 5,
Either House may request, but not command, the attendance of a member of the
other. They are to make the request by message to the other House, and to
express clearly the purpose of attendance, that no improper subject of
examination may be tendered to him. The House then gives leave to the member to
attend, if He choose it; waiting first to know from the member himself whether
He chooses to attend, till which they do not take the message into consideration. But when the
Peers are sitting as a court of Criminal Judicature, they may
order attendance; unless where it be a case of impeachment by the Commons.
There it is to be a request.3 Hats. 17; 9 Grey, 306. 406; 10 Grey, 133.
Counsel are to be heard only on private, not on
public bills; and on such points of law only as the House shall direct.-19
Grey, 61.
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SECTION XIV.
ARRANGEMENT OF BUSINESS.
The Speaker is not precisely bound to any rules as to what bills or other
matter shall be first taken up, but is left to his own discretion, unless the
House on a question decide to take up a particular subject.
-Hakew. 136.
A settled order of business is, however, necessary for the government of the
presiding person, and to restrain individual members from calling up favorite
measures, or matters under their special patronage, out of their just turn. It
is useful also for directing the discretion of the House, when they are moved
to take up a particular matter, to the prejudice of others having a priority of
right to their attention in the general order of business.
In Senate, the bills and other papers which are in possession of the House, and
in a state to be acted upon, are arranged every morning, and brought on in the
following order:
1. Bills ready for a second reading are read, that they may be referred to
committees, and so be put under way. But if, on their being read, no motion is
made for commitment, they are then laid on the table in the general file, to
be taken up in their just turn.
2. After twelve o'clock, bills ready for it are put on their passage.
3. Reports in possession of the House which offer grounds for a bill, are to be
taken up, that the bill may be ordered in.
4. Bills or other matters before the House, and unfinished on the preceding
day, whether taken up in turn, or on special order, are entitled to be resumed
and passed on through their present stage.
5. These matters being despatched, for preparing and expediting business, the
general file of bills and other papers is then taken up and each article of it
is brought on according to its seniority, reckoned by the date of its first
introduction to the House. Reports on bills belong to the dates of their
bills.
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In this way we do not waste our time in debating what shall be taken up: we do
one thing at a time, follow up a subject while it is fresh, and till it is done
with; clear the House of business, gradation as it is brought on, and prevent,
to a certain degree, its immense accumulation towards the close of the
session.
Arrangement, however, can only take hold of matters in possession of the
House. New matter may be moved at any time, when no question is before the
House. Such are original motions, and reports on bills. Such are, bills from
the other House, which are received at all times and receive their first
reading as soon as the question then before the House is disposed of; and bills
brought in on leave, which are read first whenever presented. So, messages from
the other House respecting amendments to bills, are taken up as soon as the
House is clear of a question, unless they require to be printed for better
consideration. Orders of the day may be called for, even when another question
is before the House.
SECTION X V.
ORDER.
Each House may determine the rules of its proceedings; punish its members for
disorderly behavior, and, with the concurrence of two-thirds, expel a
member.-Const. I. 5.
In Parliament, " instances make order " per
Speaker Onslow, 2 Hats. 144; but what is done only by one Parliament, cannot
be called custom of Parliament : by Prynne, 1 Grey, 52.
SECTION XVI.
ORDER RESPECTING PAPERS.
The Clerk is to let no journals, records, accounts, or papers, be taken from
the table, or out of his custody.-2 Hats. 193, 194.
Mr. Prynne having, at a committee of the whole,
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amended a mistake in a bill, without order or knowledge of the committee, was
reprimanded.-1 Chand. 77.
A bill being missing, the House resolved, that a protestation should be made
and subscribed by the members, " before Almighty God and this honorable House,
that neither myself nor any other, to my knowledge, have taken away, or do at
this present conceal a bill entitled," &c.-5 Grey, 202.
After a bill is engrossed, it is put into the Speaker's hands, and He is not to
let any one have it to look into.-Town. col. 209.
SECTION XVII.
ORDER IN DEBATE.
When the Speaker is seated in his chair, every member is to sit in his
place.-Scob . 6; Grey, 403.
When any member means to speak, He is to stand up in his place, uncovered, and
to address himself, not to the House, or any particular member, but to the
Speaker, who calls him by his name, that the House may take notice who it is
that speaks.-Sc ob. 6; D'Ewes, 487, col. 1; 2 Hats. 77; 4 Grey, 66; 8 Grey,
108. But members who are indisposed may be indulged to speak sitting.-3 Hats.
75, 77; 1 Grey, 195.
In Senate, every member, when He speaks, shall address the chair, standing in
his place; and when He has finished, shall sit down.-Rule 3.
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When a member stands up to speak, no question is to be put; but He is to be
heard, unless the House overrule him.-4 Grey, 390; 5 Grey, 6, 143.
If two or more rise to speak nearly together, the Speaker determines who was
first up, and calls him by name; whereupon He proceeds, unless He voluntarily
sits down, and gives way to the other. But sometimes the House does not
acquiesce in the Speaker's decision; in which case, the question is put, "
which member was first up ? "-2 Hats. 76; Scob. 7; D'Ewes, 434, col. 1, 2.
In the Senate of the United States, the President's decision is without appeal.
Their rule is in these words:-When two members rise at the same time, the
President shall name the person to speak; but in all cases, the member who
shall first rise and address the chair, shall speak first.-Rule 5.
No man can speak more than once to the same bill, on the same day; or even on
another day, if the debate be adjourned. But if it be read more than once, in
the same day, He may speak once at every reading.-C o. 12, 116; Hakew. 148 ;
Scob. 58; 2 Hats. 75. Even a change of opinion does not give a right to be
heard a second time.-Smyt h. Comw. L. 2. c. 3; Arcan. Parl.17.
The corresponding rule of the Senate is in these words:-No member shall speak
more than twice in any one debate on the same day, without leave of the
Senate.-Rule 4.
But He may be permitted to speak again to clear a matter of fact.-3 Grey, 357,
416. Or merely to explain himself, 3 Hats. 73, in some material part of
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his speech, ib. 75; or to the manner or words of the question, keeping himself
to that only, and not travelling into the merits of it, Memorials in Hakew. 29;
or to the orders of the House, if they be transgressed, keeping within that
line, and falling into the matter itself .-Mem. Hakew. 30, 31.
But if the Speaker rises to speak, the member standing up ought to sit down,
that He may be first heard. Town. col. 205; Hale, Parl. 133; Mem. in Hakew. 30,
31. Nevertheless, though the Speaker may of right speak to matters of order,
and be first heard, He is restrained from speaking on any other subject, except
where the House have occasion for facts within his knowledge : then He may,
with their leave, state the matter of fact.-3 Grey, 38.
No one is to speak impertinently or beside the question, superfluously or
tediously.-Scob. 31, 33; 2 Hats. 166, 168; Hale, Parl. 133.
No person is to use indecent language against the proceedings of the House, no
prior determination of which is to be reflected on by any member unless He
means to conclude with a motion to rescind it.-2 Hats. 169, 170; Rushw. p. 3.
v. 1. fol. 42. But while a proposition is under consideration, is still in
fieri, though it has even been reported by a committee, reflections on it are
no reflections on the House.-9 Grey, 308.
No person in speaking, is to mention a member then present by his name; but to
describe him by his seat in the House, or who spoke last or on the
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other side of the question, &c. Mem. in Hakew.-3 Smyth's Comw. L. 2. c. 3; nor
to digress from the matter to fall upon the person.-Sc ob. 31; Hale, Parl. 133
; 2 Hats. 166, by speaking, reviling, nipping, or unmannerly words against a
particular member. Smyth's Comw. L. 2. c. 3. The consequence of a measure may
be reprobated in strong terms; but to arraign the motives of those who propose
or advocate it, is a personality, and against order. Qui digreditur a materia
ad personam, Mr. Speaker ought to suppress.-Ord. Com. 1604, Apr. 19.
When a member shall be called to order He shall sit down, until the President
shall have determined whether He is in order or not Rule 16.
No member shall speak to another, or otherwise interrupt the business of the
Senate, or read any printed paper while the Journals or public papers are
reading, or when any member is speaking in any debate.-Rule 2.
No one is to disturb another in his speech, by hissing, coughing, spitting.-6
Grey, 332; Scob. 8; D'Ewes, 332, col. 1; nor stand up to interrupt him. Towe.
col. 205; Mem. in Hakew. 31; nor to pass between the Speaker and the speaking
member; nor to go across the House,-Sco b. 6; or to walk up and down it; or to
take books or papers from the table, or write there.-2 Hats. 171.
Nevertheless, if a member finds it is not the inclination of the House to hear
him, and that, by conversation or any other noise, they endeavor to drown his
voice, it is the most prudent way to sub
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mit to the pleasure of the House, and sit down; for it scarcely ever happens
that they are guilty of this piece of ill manners without sufficient reason, or
inattentive to a member who says anything worth their hearing.-2 Hats. 77, 78.
If repeated calls do not produce order, the Speaker may call by his name any
member obstinately persisting in irregularity; whereupon the House may require
the member to withdraw. He is then to be heard in exculpation and to withdraw.
Then the Speaker states the offence committed, and the House considers the
degree of punishment they will inflict.
-2 Hats. 169, 7, 8, 172.
For instances of assaults and affrays in the House of Commons, and the
proceedings thereon, see 1 Pet. Misc. 82; 3 Grey, 128; 4 Grey, 328; 5 Grey,
38; 26 Grey, 204; 10 Grey, 8. Whenever warm words or an assault have passed
between the members, the House, for the protection of their members, requires
them to declare in their place not to prosecute any quarrel,-3 Grey, 128, 293;
5 Grey, 289; or orders them to attend the Speaker, who is to accommodate their
differences, and to report to the House,-3 Grey, 419; and they are put under
restraint, if they refuse, or until they do.-9 Grey, 234, 312.
Disorderly words are not to be noticed till the member has finished his
speech.-5 Grey, 356; 6 Grey, 60. Then the person objecting to them, and
desiring them to be taken down by the clerk at the table, must repeat them. The
Speaker then may
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direct the clerk to take them downm his minutes. But if He thinks them not
disorderly, He delays the direction. If the call becomes pretty general, He
orders the clerk to take them down, as stated by the objecting member. They are
then part of his minutes, and when read to the offending member, He may deny
they were his words, and the House must then decide by a question, whether they
are his words or not. Then the member may justify them, or explain the sense in
which He used them, or apologize. If the House is satisfied, no further
proceeding is necessary. But if two members still insist to take the sense of
the House, the member must withdraw before that question is stated, and then
the sense of the House is to be taken.-2 Hats. 199; 4 Grey, 170; 6 Grey, 59.
When any member has spoken, or other business intervened, after offensive words
spoken, they cannot be taken notice of for censure. And this is for the common
security of all, and to prevent mistakes, which must happen, if words are not
taken down immediately . Formerly, they might be taken down at any time the
same day.-2 Hats.196; Mem. in Hakew. 71; 3 Grey, 48; 9 Grey, 514.
Disorderly words spoken in a committee, must be written down as in the House ;
but the committee can only report them to the House for animadversion.-6 Grey,
46.
The rule of the Senate says,-If a member be called to order for
words spoken, the exceptionable words shall be immediately taken down in
writing, that the President may be better enabled to judge. Rule 17.
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In Parliament, to speak irreverently or seditiously against the King, is
against order.-Smyth's Comw. L.2, c. 3; 2 Hats. 170.
It is a breach of order in debate to notice what has been said on the same
subject in the other House, or the particular votes or majorities on it there;
because the opinion of each House should be left to its own independency, not
to be influenced by the proceedings of the other; and the quoting them might
beget reflections leading to a misunderstanding between the two Houses.-8
Grey, 22.
Neither House can exercise any authority over a member or officer of the other,
but should complain to the House of which He is, and leave the punishment to
them. Where the complaint is of words disrespectfully spoken by a member of
another House, it is difficult to obtain punishment, because of the rules
supposed necessary to be observed (as to the immediate noting down of words)
for the security of members. Therefore it is the duty of the House, and more
particularly of the Speaker, to interfere immediately, and not to permit
expressions to go unnoticed, which may give a ground of complaint to the other
House, and introduce proceedings and mutual accusations between the two
Houses, which can hardly be terminated without difficulty and disorder.-3 Hats.
51.
No member may be present when a bill, or any business concerning himself, is
debating; nor is any member to speak to the merits of it till He with
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draws.-2 Hats. 219. The rule is, that if a charge against a member arise out of
a report of a committee, or examination of WITNESSES in the House, as the
member knows from that to what points He is to direct his exculpation, He may
be heard to those points before any question is moved or stated against them.
He is then to be heard, and withdraw before any question is moved. But if the
question itself is the charge, as for breach of order, or matter arising in
debate, then the matter must be stated, that is, the question must be moved,
himself heard and then to withdraw.-2 Hats.
121, 122.
Where the private interests of a member are concerned in a bill or question, He
is to withdraw. And where such an interest has appeared, his voice, has been
disallowed, even after a division. In a case so contrary not only to the laws
of decency, but to the fundamental principles of the social compact, which
denies to any man to be a judge in his own cause, it is for the honor of the
House that this rule of immemorial observance should be strictly adhered to.-2
Hats. 119, 121; 6 Grey, 368.
No member is to come into the House with his head covered, nor to remove from
one place to the other with his hat on, nor is to put on his hat in coming in,
or removing, until He be sit down in his place.-Scob . 6.
A question of order may be adjourned to give time to look into precedents .-2
Hats. 118.
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In the Senate of the United States, every question of order is to be decided by
the President, without debate; but if there be a doubt in his mind, He may call
for the sense of the Senate.-Rule 16.
In Parliament, all decisions of the Speaker may be controlled by the House.-3
Grey, 319.
SECTION XVIII.
ORDERS OF THE HOUSE.
Of right, the door of the House ought not to be shut, but to be kept by
porters, or sergeants-at arms, assigned for that purpose.-Mod. ten. Parl. 23.
By the rule of the Senate, on motion made and seconded to shut the doors of the
Senate, on the discussion of any business which may in the opinion of a member,
require secrecy the President shall direct the gallery to be cleared; and
during the discussion of such motion the door shall remain shut.-Rule 28.
No motion shall be deemed in order, to admit any person or persons whatever
within the doors of the Senate-chamber, to present any petition, memorial, or
address, or to hear any such read.-Rule 29.
The only case where a member has a right to insist on anything, is where He
calls for the execution of a subsisting order of the House. Here, there having
been already a resolution, any member has a right to insist that the Speaker,
or any other whose duty it is, shall carry it into execution; and no debate or
delay can be had on it. Thus any member has a right to have the House or
gallery cleared of strangers, an order existing for that purpose; or to have
the House told when there is not a quorum present.-2 Hats. 87, 129. How far an
order of the House is binding, see Hakew. 392.
VOL. II-24
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But where an order is made that any particular matter be taken up on a
particular day, there a question is to be put when it is called for, Whether
the House will now proceed to that matter? Where orders of the day are on
important or interesting matter, they ought not to be proceeded on till an hour
at which the House is usually full-(which in Senate is at noon).
Orders of the day may be discharged at any time, and a new one made for a
different day.-3 Grey, 48, 313.
When a session is drawing to a close, and the important bills are all brought
in, the House, in order to prevent interruption by further unimportant bills,
sometimes come to a resolution, that no new bill be brought in, except it be
sent from the other House.-3 Grey, 156.
All orders of the House determine with the session; and one taken under such an
order may, after the session is ended, be discharged on a Habeas Corpus.-Ra ym.
120; Jacob's L. D. by Ruffhead; Parliament, 1 Lev. 165, Prichard's case.
Where the Constitution authorizes each House to determine the rule of its
proceedings, it. must mean in those cases, legislative, executive, or
judiciary, submitted to them by the Constitution, or in something relating to
these, and necessary towards their execution. But orders and resolutions are
sometimes entered in their journals, having no relation to these, such as
acceptances of invitations to attend orations, to take part in procession s,
&c. These must be understood to be merely convention al among those who are
willing to participate in the ceremony, and are therefore, perhaps, improperly
placed among the records of the House.
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SECTION XIX.
PETITIONS.
A petition prays something. A remonstrance has no prayer.-1 Grey, 58.
Petitions must be subscribed by the petitioners, Scob. 87; L. Parl. c. 22; 9
Grey, 362, unless they are attending,1 Grey, 401, or unable to sign, and
averred by a member.-3 Grey, 418. But a petition not subscribed, but which the
member presenting it affirmed to be all in the handwriting of the petitioner,
and his name written in the beginning, was, on the question, (March 14, l800,)
received by the Senate. The averment of a member, or somebody without doors,
that they know the handwriting of the petitioners, is necessary, if it be
questioned.-6 Grey, 36. It must be presented by a member, not by the
petitioners, and must be opened by him, holding it in his hand.-10 Grey, 57.
Before any petition or memorial, addressed to the Senate, shall be received and
read at the table, whether the same shall be introduced by the President or a
member, a brief statement of the contents of the petition or memorial shall
verbally be made by the introducer. Rule 21.
Regularly a motion for reeeiving it must be made and seconded, and a question
put, Whether it shall be received? But a cry from the House of " Received," or
even its silence, dispenses with the formality of this question : it is then to
be read at the table, and disposed of.
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SECTION XX.
MOTIONS.
When a motion has been made, it is not to be put to the question, or debated,
until it is seconded. Scob. 21.
The Senate say, No motion shall be debated until the same shall be seconded:
Rule 6.
It is then, and not till then, in possession of the House. It is to be put into
writing, if the House or Speaker require it, and must be read to the House by
the Speaker, as often as any member desires it for his information .-2 Hats.
82.
The rule of the Senate is, When a motion shall be made and seconded, it shall
be reduced to writing, if desired by the President or any member, delivered in
at the table, and read by the President before the same shall be debated.-Rule
7.
It might be asked, whether a motion for adjournment, or for the orders of the
day, can be made by one member while another is speaking? It cannot. When two
members offer to speak, he who rose first is to be heard, and it is a breach of
order in another to interrupt him, unless by calling him to order if he departs
from it. And the question of order being decided, he is still to be heard
through. A call for adjournment, or for the order of the day, or for the
question, by gentlemen from their seats, is not a motion. No motion can be made
without arising and addressing the chair. Such calls are themselves
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breaches of order, which, though the member who has risen may respect as an
expression of impatience of the House against farther debate, yet, if he
chooses, he has a right to go on.
SECTION XXI.
RESOLUTIONS.
When the House commands, it is by an " order. " But facts, principles, their
own opinions and purposes, are expressed in the form of resolutions .
A resolution for an allowance of money. to the clerks being moved, it was
objected to as not in order, and so ruled by the chair. But on appeal to the
Senate, (i. e., a call for their sense by the President, on account of doubt in
his mind, according to Rule 16), the decision was overruled.-Journ. Sen., June
1, 1796. I presume the doubt was, whether an allowance of money could be made
otherwise than by bill.
SECTION XXII.
BILLS.
Every bill shall receive three readings previous to its being passed; and the
President shall give notice at each, whether it be the first, second, or third;
which readings shall be on three different days, unless the Senate unanimously
direct otherwise, or unless by a joint vote of both Houses, or the expiration
of their term, the session is to be closed within three days.-Rule 13.
SECTION XXIII.
BILLS, LEAVE TO BRING IN.
One day's notice, at least, shall be given of an intended motion for leave to
bring in a bill.-Rule 12.
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When a member desires to bring a bill on any subject, he states to the House,
in general terms, the causes for doing it, and concludes by moving for leave to
bring in a bill, entitled, etc. Leave being given, on the question, a committee
is appointed to prepare and bring in the bill. The mover and seconder are
always appointed on this committee, and one or more in addition.-Hakew.132 ;
Scob. 40.
It is to be presented fairly written, without any erasure or interlineation ;
or the Speaker may refuse it.-Scob. 31; 1 Grey, 82, 84.
SECTION XXIV.
BILLS, FIRST READING.
When a bill is first presented, the clerk reads it at the table, and hands it
to the Speaker, who, rising, states to the House the title of the bill; that
this is the first time of reading it; and the question will be Whether it shall
be read a second time? Then, sitting down, to give an opening for objections;
if none be made, he rises again, and puts the question, Whether it shall be
read a second time? Hakew. 137, 141. A bill cannot be amended at the first
reading,-6 Grey, 286; nor is it usual for it to be opposed then, but it may be
done and rejected.D' Ewes, 335, col. 1; 3 Hats: 198.
Parliamentary Manual
-375-
SECTION XXV.
BILLS, SECOND READING.
The second reading must regularly be on another day.-Hakew . 143. It is done
by the clerk at the table, who then hands it to the Speaker. The Speaker,
rising, states to the House the title of the bill, that this is the second time
of reading it, and that the question will be, Whether it shall be committed, or
engrossed and read a third time? But if the bill came from the other House, as
it always comes engrossed, he states that the question will be, Whether it
shall be read a third time? And before he has so reported the state of the
bill, no one is to speak to it.-Hakew. 143, 146.
In the Senate of the United States, the President reports the title of the
bill, that this is the second time of reading it, that it is now to be
considered as in a committee of the whole, and the question will be, Whether it
shall be read a third time? or, that it may be referred to a special committee.
SECTION XXVI.
BILLS, COMMITMENT.
If, on motion and question, it be decided that the bill shall be committed, it
may then be moved to be ref erred to a committee of the whole House, or to a
special committee. If the latter, the Speaker proceeds to name the committee.
Any member also may name a single person, and the clerk is to write him down as
of the committee. But the House
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have a controlling power over the names and number, if a question be moved
against any one; and may in any case put in and put out whom they please.
Those who take exceptions to some particulars in the bill, are to be of the
committee. But none who speak directly against the body of the bill. For he
that would totally destroy, would not amend it. Hakew. 146; Town. col. 208;
D'Ewes, 634, col. 2; Scob. 47; or, as is said, 5 Grey,145, the child is not to
be put to a nurse that cares not for it.-6 Grey, 373. It is therefore a
constant rule, " that no man is to be employed in any matter who has declared
himself against it." And when any member who is against the bill, hears himself
named of its committee, he ought to ask to be excused. Thus, March 6, 1606, Mr.
Hadley was, on the question being put, excused from being of a committee,
declaring himself to be against the matter itself.-Scob . 48.
No bill shall be committed or amended until it shall have been twice read after
which it may be referred to a committee.-Rule 14.
All committees shall be appointed by ballot, and a plurality of voices shall
make a choice.-Rule 15.
The clerk may deliver the bill to any member of the committee.-Town. col. 138.
But it is usual to deliver it to him who is first named.
In some cases, the House has ordered the committee to withdraw immediately into
the committee chamber, and act on and bring back the bill, sitting the
House.-Scob. 48.
-377-
A committee meets when and where they please, if the House has not ordered time
and place for them.-6 Grey, 370. But they can only act when together, and not
by separate consultation and consent; nothing being the report of the
committee, but what has been agreed to in committee, actually assembled.
A majority of the committee constitutes a quorum for business.-Elsynge's
method of passing bills, 11.
Any member of the House may be present at any select committee, but cannot
vote, and must give place to all of the committee, and must sit below
them.-Elsynge, 12; Scob. 49.
But in 1626, April 24th, the House of Commons resolved that though any members
may be present at the examination of witnesses, they may not be at the debate,
disposition, or penning of the business by the select committee.-4 Hats. 124.
The committee have full power over the bill, or other paper committed to them,
except that they cannot change the title or subject.-8 Grey, 228.
The paper before a committee, whether select or of the whole, may be a bill,
resolutions, draught of an address, &c., and it may either originate with
them,. or be referred to them. In every case, the whole paper is read first by
the clerk, and then by the chairman, by paragraphs, Scob. 49, pausing at the
end of each paragraph, and putting questions, for amending, if proposed. In the
case of resolutions on distinct subjects, originating with themselves, a
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question is put on each separately, as amended, or unamended, and no final
question on the whole.-3 Hats. 276. But if they relate to the same subject, a
question is put on the whole. If it be a bill, draught of an address, or other
paper originating with them, they proceed by paragraphs, putting questions for
amending, either by inserting or striking out, if proposed; but no question on
agreeing to the paragraphs separately. This is reserved to the close, when a
question is put on the whole for agreeing to it as amended or unamended . But
if it be a paper referred to them, they proceed to put questions of amendment,
if proposed, but no final question on the whole; because all parts of the paper
having been adopted by the House, stand, of course, unless altered, or struck
out by a vote. Even if they are opposed to the whole paper, and think it cannot
be made good by amendments, they cannot reject it, but must report it back to
the House without amendments, and there make their opposition.
The natural order in considering and amending any paper is, to begin at the
beginning, and proceed through it by paragraphs; and this order is so strictly
adhered to in Parliament, that, when a latter part has been amended, you cannot
recur back and make any alteration in a former part.-a Hats. 90. In numerous
assemblies, this restraint is, doubtless, important.
-379-
But in the Senate of the United States, though in the main we consider and
amend the paragraphs in their natural order, yet recurrcnces are indulged; and
they seem, on the whole, in that small body, to produce advantages overweighing their
inconveniences. .
To this natural order of beginning at the beginning, there is a single
exception found in Parliamentary usage. When a bill is taken up in committee,
or on its second reading, they postpone the preamble, till the other parts of
the bill are gone through. The reason is, that on consideration of the body of
the bill, such alterations may therein be made, as may also occasion the
alteration of the preamble.-Scob. 50; 7 Grey, 431.
On this head, the following case occurred in the Senate, March 6, l800. A
resolution which had no preamble, having been already amended by the House, so
that a few words only of the original remained in it, a motion was made to
prefix a preamble, which, having an aspect very different from the resolution,
the mover intimated that he should afterwards propose a correspond ent
amendment in the body of the resolution. It was objected that a preamble could
not be taken up till the body of the resolution is done with. But the preamble
was received; because we are in fact through the body of the resolution, we
have amended that as far as amendments have been offered, and indeed till
little of the original is left. It is the proper time, therefore, to consider
a preamble; and whether the one offered be consistent with the resolution, is
for
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the House to determine. The mover, indeed, has intimated that he shall offer a
subsequent proposition for the body of the resolution; but the House is not in
possession of it; it remains in his breast, and may be withheld. The rules of
the House can only operate on what is before them. The practice of the Senate,
too, allows recurrences backwards and forwards for the purpose of amendment s,
not permitting amendments in a subsequent, to preclude those in a prior part,
or a converso.
When the committee is through the whole, a member moves that the committee may
rise, and the chairman report the paper to the House, with or without amendment
s, as the case may be.-2 Hats. 289, 292; Scob. 53; 2 Hats. 290; 8 Scob. 50.
When a vote is once passed in a committee, it cannot be altered but by the
House, their votes being binding on themselves.-1607, June 4.
The committee may not erase, interline, or blot the bill itself; but must, in
a paper by itself, set down the amendments, stating the words that are to be
inserted or omitted, Scob. 50; and where, by reference to the page, line, and
word of the bill. Scob. 50.
SECTION XXVII.
REPORT OF COMMITTEE.
The chairman of the committee, standing in his place, informs the House that
the committee, to
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whom was referred such a bill, have, according to order, had the same under
consideration, and have directed him to report the same without any amendment,
or with sundry amendments, (as the case may be,) which he is ready to do when
the House pleases to receive it. And he, or any other, may move that it be now
received. But the cry of "now, now," from the House, generally dispenses with
the formality of a motion and question. He then reads the amendments, with the
coherence in the bill, and opens the alterations, and the reasons of the
committee for such amendment, until he has gone through the whole. He then
delivers it at the clerk's table, where the amendments reported are read by
the clerk, without the coherence; whereupon the papers lie upon the table,
till the House, at his convenience, shall take up the report.-Scob. 52; Hakew.
148.
The report being made, the committee is dissolved, and can act no more without
a new power.-Scob. 51. But it may be revived by a vote, and the same matter
recommitted to them.-4 Grey, 361.
SECTION XXVIII.
BILL, RECOMMITMENT.
After a bill has been committed and reported, it ought not, in an ordinary
course, to be recommitted. But in cases of importance, and for special
reasons, it is sometimes recommitted, and usually to the
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same committee.-Hakew. 151. If a report be committed before agreed to in the
House, what has passed in the committee is of no validity; the whole question
is again before the committee, and a new resolution must be again moved, as if
nothing had passed.-3 Hats. 131, note.
In Senate, January, l800, the salvage bill was recommitted three times after
the commitment .
A particular clause of a bill may be committed without the whole bill,-3 Hats.
131; or so much of a paper to one, and so much to another committee.
SECTION XXIX.
BILL, REPORT TAKEN UP.
When the report of a paper, originating with a committee, is taken up by the
House, they proceed exactly as in committee. Here, as in committee, when the
paragraphs have, on distinct questions, been agreed to seriatim,-5 Grey, 365 ;
6 Grey, 368; 8 Grey, 47, 104, 360; 1 Torbuck's deb. 124; 3 Hats. 348,-no
question need be put on the whole report.
-5 Grey, 381.
On taking up a bill reported with amendments, the amendments only are read by
the clerk. The Speaker then reads the first, and puts it to the question, and
so on till the whole are adopted or rejected, before any other amendment be
admitted, except it be an amendment to an amendment. Elsynge's Mem 23. When
through the amendment s
-383-
of the committee, the Speaker pauses, and gives time for amendments to be
proposed in the House to the body of the bill; as he does also if it has been
reported without amendments; putting no question but on amendments proposed;
and when through the whole, he puts the question, Whether the bill shall be
read the third time ?
SECTION XXX.
QUASI-COMMITTEE.
If, on the motion and question, the bill be not committed, or if no proposition
for commitment be made, then the proceedings in the Senate of United States
and in Parliament are totally different. The former shall be first stated.
The 20th rule of the Senate says, "All bills, on a second reading, shall first
be considered by the Senate in the same manner as if the Senate were in a
committee of the whole, before they shall be taken up and proceeded on by the
Senate agreeably to the standing rules, unless otherwise ordered;" that is to
say, unless ordered to be referred to a special committee.
The proceeding of the Senate, as in committee of the whole, or in quasi-comm
ittee, are precisely as in a real committee of the whole, taking no questions
but on amendments. When through the whole, they consider the quasi-committee
as risen, the House resumed, without any motion, question, or resolution to
that effect, and the President reports, that "the House, acting as in committee
of the whole, have had under consideration the bill entitled, &c., and have
made sundry amendments, which he will now report to the House." The bill is
then before them, as it would have been if reported from a committee, and
questions are regularly to be put again on every amendment: which being gone
through, the President pauses to give time to the House to propose amendment s
to the body of the bill, and when through, puts the question, whether it shall
be read a third time?
-384-
After progress in amending a bill in quasi-committee, a motion may be made to
refer it to a special committee. If the motion prevails, it is equivalent in
effect to the several votes that the committee rise, the House resume itself,
discharge the committee of the whole, and refer the bill to a special
committee. In that case, the amendments already made fall. But if the motion
fails, the quasi-committee stands in statu quo.
How far does this 20th rule subject the House, when in quasi-committee, to the
laws which regulate the proceedings of a committee of the whole? The
particulars, in which these differ from proceedings in the House, are the
following:-1. In a committee, every member may speak as often as he pleases.2.
The votes of a committee may be rejected or altered when reported to the
House.-3. A committee, even of the whole, cannot refer any matter to another
committee.-4. In a committee, no previous question can be taken : the only
means to avoid an improper discussion, is to move that the committee rise; and
if it be apprehended that the same discussion will be attempted on returning
into committee, the House can discharge them, and proceed itself on the
business, keeping down the improper discussion by the previous question.-5 . A
committee cannot punish a breach of order, in the House, or in the gallery,-9
Grey, 113; it can only rise and report it to the House, who may proceed to
punish.
The 1st and 2d of these peculiarities attach to the quasi-committee of the
Senate, as every day's practice proves; and seem to be the only ones to which
the 20th rule meant to subject them: for it continues to be a House, and
therefore, though it acts in some respects as a com-
-385-
mittee, in others it preserves its character as a House.-Thus, 3d, It is in
the daily habit of referring its business to a special committee.4th. It
admits the previous question: if it did not, it would have no means of
preventing an improper discussion; not being able, as the committee is, to
avoid it by returning into the House: for the moment it would resume the same
subject there, the 20th rule declares it again a quasi-committee.-5th. It
would doubtless exercise its powers as a House on any breach of order.-6th. It
takes a question by Yca and Nay, as the House does.-7th. It receives messages
from the President and the other House.-8th. In the midst of a debate, it
receives a motion to adjourn, and adjourns as a House, not as a committee.
SECTION XXXI.
BILL, SECOND READING IN THE HOUSE.
In Parliament, after the bill has been read a second time, if, on the motion
and question, it be not committed, or if no proposition for commitment be made,
the Speaker reads it by paragraphs, pausing between each, but putting no
questions but on amendments proposed; and when through the whole, he puts the
question, Whether it shall be read the third time? if it came from the other
House. Or, if originating with themselves, Whether it shall be engrossed and
read a third time ? The Speaker reads sitting, but rises to put a question. The
clerk stands while he reads.
But the Senate of the United States is so much in the habit of making many and
material amendments at the third reading, that it has become the practice not
to engross a bill till it has passed. An irregular and dangerous practice;
because, in this way, the paper which passes the Senate is not that which goes
to the other House; and that which goes to the other House as the act of the
Senate, has never been seen in Senate. In reducing numerous, difficult, and
illegible amend
VOL. II-25
-386-
ments into the text, the secretary may, with the most innocent intentions,
commit errors which can never again be corrected.
The bill being now as perfect as its friends can make it, this is the proper
stage for those, fundamentally opposed, to make their first attack. All
attempts at other periods are with disjointed efforts; because many who do not
expect to be in favor of the bill, ultimately, are willing to let it go on to
its perfect state, to take time to examine it themselves, and to hear what can
be said for it; knowing that, after all, they have sufficient opportunities of
giving it their veto. Its two last stages, therefore, are reserved for this,
that is to say, on. the question, Whether it shall be engrossed and read a
third time ? and, lastly, whether it shall pass? The first of these is usually
the most interesting contest; because then the whole subject is new and
engaging, and the minds of the members having not yet been declared by any
trying vote, the issue is the more doubtful. In this stage, therefore, is the
main trial of strength between its friends and opponents; and it behooves every
one to make up his mind decisively for this question, or he loses the main
battle; and accident and management may, and often do, prevent a successful
rallying on the next and last question, Whether it shall pass ?
When the bill is engrossed, the title is to be endorsed on the back, and not within the bill.-Hakew
. 250.
-387-
SECTION XXXII.
READING PAPERS.
Where papers are laid before the House, or referred to a committee, every
member has a right to have them once read at the table, before he can be
compelled to vote on them. But it is a great, though common error, to suppose
that he has a right, toties quoties, to have acts, journals, accounts, or
papers, on the table, read independently of the will of the House. The delay
and interruption which this might be made to produce, evince the impossibility of the existence
of such a right. There is indeed so manifest a propriety of
permitting every member to have as much information as possible on every
question on which he is to vote, that when he desires the reading, if it be
seen that it is really for information, and not for delay, the Speaker directs
it to be read without putting a question, if no one objects. But if objected
to, a question must be put.-a Hats. 117, 118.
It is equally an error to suppose, that any member has a right, without a
question put, to lay a book or paper on the table, and have it read, on
suggesting that it contains matter infringing on the privileges of the House.-a
Hats. 117, 118.
For the same reason, a member has not a right to read a paper in his place, if
it be objected to, without leave of the House. But this rigor is never
exercised but where there is an intentional or gross abuse of the time and
patience of the House.
-388-
A member has not a right even to read his own speech, committed to writing,
without leave. This also is to prevent an abuse of time; and therefore is not
refused, but where that is intended.-2 Grey, 227.
A report of a committee of the Senate on a bill from the House of Representatives being under
consideration, on motion that the report of the committee of
the House of Representatives on the same bill be read in the Senate, it passed
in the negative.-F eb. 28, 1793,
Formerly, when papers were referred to a committee, they used to be first read;
but of late, only, the titles; unless a member insists they shall be read, and
then nobody can oppose it. -- 2 Hats. 117.
SECTION XXXIII.
PRIVILEGED QUESTIONS .
While a question is before the Senate, no motion shall be received unless for
an amendment, for the previous question, or for postponing the main question,
or to commit it, or to adjourn.-Rule 8..
It is no possession of a bill, unless it be delivered to the clerk to be read,
or the Speaker reads the title.-Lez. Parl. 274; Elsynge, Mem. 85; Ord. House
Commons, 64.
It is a general rule, that the question first moved and seconded shall be first
put.-Scob. 28, 22; 2 Hats. 81. But this rule gives way to what may be called
privileged questions; and the privileged questions are of different grades
among themselves.
-389-
A motion to adjourn, simply takes place of all
others; for otherwise the House might be kept sitting against its will, and
indefinitely . Yet this motion cannot be received af ter another question is
actually put, and while the House is engaged in voting.
Orders of the day take place of all other questions, except for adjournment.
That is to say, the question which is the subject of an order, is made a
privileged one, pro hac vice. The order is a repeal of the general rule as to
this special case. When any number moves, therefore, for the orders of the day
to be read, no further debate is permitted on the question which was before the
House; for if the debate might proceed, it might continue through the day, and
def eat the order. This motion, to entitle it to precedence, must be for the
orders generally, and not for any particular one; and if it be carried on the
question, " Whether the House will now proceed to the orders of the day?" they
.must be read and proceeded on in the course in which they stand.-2 Hats. 83.
Por priority of order gives priority of right, which cannot be taken away but
by another special order.
After these there are other privileged questions, which will require
considerable explanation .
It is proper that every Parliamentary assembly should have certain forms of
questions, so adapted as to enable them fitly to dispose of every proposition
which can be made to them. Such are, 1. The previous question : 2. To postpone
indefinitely :
-390-
3. To adjourn to a definite day: 4. To lie on the table : 5. To commit : 6. To
amend. The proper occasion for each of these questions should be understood .
1. When a proposition is moved, which it is useless or inexpedient now to
express or discuss, the previous question has been introduced for suppressing,
for that time, the motion and its discussion. 3 Hats. 188, 189.
2. But as the previous question gets rid of it only for that day, and the same
proposition may recur the next day, if they wish to suppress it for the whole
of that session, they postpone it indefinitely .3 Hats. 183. This quashes the
proposition for that session, as an indefinite adjournment is a dissolution,
or the continuance of a suit sine die is a discontinuance of it.
3. When a motion is made which. it will be proper to act on, but information is
wanted, or something more pressing claims the present time, the question or
debate is adjourned to such a day within the session. as will answer the views
of the House.-2 Hats. 81. And those who have spoken before, may not speak again
when the adjourned debate is resumed.-2 Hats. 73. Sometimes; however, this has
been abusively used, by adjourning it to a day
beyond the session to get rid of it altogether, as would be done by an
indefinite postponement.
4. When the House has something else which
claims its present attention, but would be willing
-391-
to reserve in their power to take up a proposition whenever it shall suit them,
they order it to lie on their table. It may then be called for at any time.
5. If the proposition will want more amendment and digestion than the formalities of the House
will conveniently admit, they refer it to a committee.
6. But if the proposition be well digested, and may need but few and simple
amendments, and especially if these be of leading consequence, they then
proceed to consider and amend it themselves.
The Senate, in their practice, vary from this regular gradation of forms. Their
practice, comparatively with that of Parliament, stands thus :
For the Parliamentary, The Senate uses,
Postmt. indefinite. -Postmt. to a day beyond the session.
Adjournment, -Postmt. to a day within the session.
Laying on the table. Postponement indefinite.
Laying on the table.
In their 8th Rule, therefore, which declares, that while a question is bef ore
the Senate, no motion shall be received, unless it be for the previous
question, or to postpone, commit or amend the main question, the term
postponement must be understood according to their broad use of it, and not in
its Parliamentary sense. Their rule then establishes as privileged questions,
the previous question, postponement, commitment, and amendment.
But it may be asked, Have these questions any privilege among themselves? or
are they so equal that the common principle of the " first moved, first
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put, " takes place among them? This will need explanation . Their competitions may be as
follows :
1. Prev. Qu. and Postpone * In the lst, ad, and 3d classes, and
Commit * the 1st member of the 4th
class,
Amend * the rule "first moved, first
put,"
2. Postpone and Prev. Qu. * takes place.
Commit
Amend
3. Commit and Prev. Qu
Postpone
Amend.
4. Amend and Prev. Qu
Postpone
Commit
In the 1st class, where the previous question is first moved, the effect is
peculiar; for it not only prevents the after motion to postpone or commit from
being put to question before it, but also from being put
after it. For if the previous question be decided affirmatively, to wit, that
the main question shall now be put, it would of course be against the decision
to postpone or commit. And if it be decided negatively, to wit, that the main
question shall not now be put, this puts the House out of possession of the
main question, and consequently there is nothing before them to postpone or
commit. So that neither voting for nor against the previous question will
enable the advocates for postponing or committing to get at their object.
Whether it may be amended, shall be examined hereafter.
2d class.-If postponement be decided affirmatively, the proposition is
removed from before the House, and consequently there is no ground for the
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previous question, commitment, or amendment. But if decided negatively, that
it shall not be postponed, the main question may then be suppressed by the
previous question, or may be committed or amended.
The 3d class is subject to the same observations as the 2d.
The 4th class.-Ame ndment of the main question first moved, and afterwards the
previous question, the question of amendment shall be first put.
Amendment and postponement competing, postponement is first put, as the
equivalent proposition to adjourn the main question would be in Parliament. The
reason is, that the question for amendment is not suppressed by postponing or
adjourning the main question, but remains before the House whenever the main
question is resumed; and it might be that the occasion for other urgent
business might go by, and be lost by length of debate on the amendment, if the
House had it not in their power to postpone the whole subject.
Amendment and commitment . The question for committing, though last moved,
shall be first put; because in truth it facilitates and befriends the motion
to amend. Scobell is express : " On a motion to amend a bill, any one may,
notwithstanding, move to commit it, and the question for commitment shall be
first put."-Scob. 46.
We have hitherto considered the case of two or more of the privileged questions
contending for privi
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lege between themselves, when both were moved on the original or main question
; but now let us suppose one of them to be moved, not on the original primary
question, but on the secondary one, e. g.
Suppose a motion to postpone, commit, or amend the main question, and that it
be moved to suppress that motion by putting the previous question on it. This
is not allowed, because it would embarrass questions too much to allow them to
be piled on one another several stories high; and the same result may be had
in a more simple way-, by deciding against the postponement, commitment, or
amendment. 2 Hats. 81, 2, 3, 4.
Suppose a motion for the previous question, or commitment or amendment of the
main question, and that it be then moved to postpone the motion for the
previous question, or for commitment or amendment of the main question : 1. It
would be absurd to postpone the previous question, commitment, or amendment,
alone, and thus separate the appendage from its principal; yet it must be
postponed separately from the original; if at all, because the 8th rule of the
Senate says, that when a main question is before the House, no motion shall be
received but to commit, amend, or pre-question the original question, which is
the parliamentary doctrine; therefore, the motion to postpone the secondary
motion for the previous question, or for committing or amending, cannot be
received: 2. This is a piling of questions one on another, which, to
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avoid embarrassment, is not allowed : 3. The same result may be had more
simply, by voting against the previous question, commitment, or amendment.
Suppose a commitment moved, of a motion for the
previous question, or to postpone, or amend. The lst, 2d, and 3d reasons before
stated, all hold
good against this.
Suppose an amendment moved to a motion for the previous question ? Answer: The
previous question cannot be amended. Parliamentary usage, as well as the 9th
rule of the Senate, has fixed its form to be,
"Shall he main question be now put?" i. e., at this
instant. And as the present instant is but one, it
can admit of no modification. To change it to tomorrow, or any other moment,
is without example and without utility. But suppose a motion to amend a motion
for postponement, as to one day instead of another, or to a special instead of
indefinite time. The useful character of amendment gives it a privilege of
attaching itself to a secondary privileged motion. That is, we may amend a
postponement of a main question. So we may amend a commitment of a main
question, as by adding, for example, "with instruction to inquire," &c. In like
manner, if an amendment be moved to an amendment, it is admitted. But it would
not be admitted in another degree, to wit, to amend an amendment to an
amendment of a main question. This would lead to too much embarrassment. The
line must be drawn somewhere; and usage has drawn it after the
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amendment to the amendment. The same result must be sought by deciding against
the amendment to the amendment, and then moving it again as it was wished to be
amended. In this form it becomes only an amendment to an amendment.
In filling a blank with a sum, the largest sum shall be first put to the
question, by the l8th Rule of the Senate, contrary to the rule of Parliament,
which privileges the smallest sum and longest time.-5 Grey, 179; 2 Hats. 8, 83
; 3 Hats. 13 2, 133. And this is considered to be not in the form of an
amendment to the luestion, but as alternative or successive originals. In all
cases of time or number, we must consider whether the larger comprehends the
lesser, as in a question to what day a postponement shall be, the number of a
committee, amount of a fine, term of an imprisonment, term of irredeemability of a loan, or the
terminus in quem in any other case. Then the question
must begin a mazimo. Or whether the lesser includes the greater, as in question
on the limitation of the rate of interest, on what day the session shall be
closed by adjournment, on what day the next shall commence, when an act shall
commence, or the terminus a quo in any other case, where the question must
begin a minimo. The object being not to begin at that extreme, which, and more,
being within every man's wish, no one could negative it, and yet if we should
vote in the affirmative, every question for more would be precluded; but at
that extreme which would unite few, and then to advance
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or recede till you get to a number which will unite a bare majority.-3 Grey,
376, 384, 385. "The fair question in this case is not that to which and more
all will agree, whether there shall be addition to the question."-1 Grey, 365.
Another exception to the rule of priority is, when a motion has been made to
strike out or agree to a paragraph. Motions to amend it are to be put to the
question, before a vote is taken on striking out, or agreeing to the whole
paragraph.
But there are several questions, which, being incidental to every one, will
take place of every one, privileged or not; to wit, a question of order
arising out of any other question, must be decided before that question.-2
Hats. 88.
A matter of privilege arising out of any question, or from a quarrel between
two members, or any other cause, supersedes the consideration of the original
question, and must first be disposed of .-2 Hats. 88.
Reading papers relative to the question before the House. This question must be
put before the principal one.-2 Hats. 88.
Leave asked to withdraw a motion. . The rule of Parliament being, that a motion
made and seconded is in possession of the House, and cannot be withdrawn
without leave, the very terms of the rule imply that leave may be given, and,
consequently, may be asked and put to the question.
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SECTION XXXIV.
THE PREVIOUS QUESTION.
When any question is before the House, any member may move a previous question,
" Whether that question (called the main question) shall now be put ? " If it
pass in the affirmative, then the main question is to be put immediately, and
no man may speak anything further to it, either to add or alter -- Memor . in
Hakew. 2 8; 4 Grey, 2 7.
The previous question being moved and seconded, the question from the chair
shall be, " Shall the main question be now put ?" and if the nays prevail, the
main question shall not then be put.-Rule 9.
This kind of question is understood by Mr. Hatsell to have been introduced in
1604.-2 Hats. 80. Sir Henry Vane introduced it.-2 Grey,113,11 4; 3 Grey, 384.
When the question was put in this form, "Shall the main question be put ? " a
determination in the negative suppressed the main question during, the session
; but since the words " now put " are used, they exclude it for the present
only. Formerly, indeed, only till the present debate was over; 4 Grey, 43; but
now for that day and no longer.-2 Grey,113, 114.
Before the question, " Whether the main question shall now be put ? " any
person might formerly have spoken to the main question, because otherwise he
would be precluded from speaking to it at all.-Mem. in Hakew. 28.
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The proper occasion for the previous question is,
when a subject is brought forward of a delicate nature as to high personages ,
etc., or the discussion of which may call forth observations which might be of
injurious consequences. Then the previous question is proposed, and, in the
modern usage, the discussion of the main question is suspended, and the debate
confined to the previous question. The use of it has been extended abusively to
other cases; but in these, it is an embarrassing procedure : its uses would
be as well answered by other more simple Parliamentary forms, and therefore it
should not be favored, but restricted within as narrow limits as possible.
Whether a main question may be amended after the previous question on it has
been moved and seconded? 2 Hatsell, 88, says, If the previous question had been
moved and seconded, and also proposed from the chair, (by which he means,
stated by the Speaker for debate,) it has been doubted whether an amendment can
be admitted to the main question. He thinks it may, after the previous
question moved and seconded' but not after it has been proposed
from the chair.
In this case he thinks the friends to the amendment must vote that the main
question be not now put, and then move their amended question, which being made
new by the amendment, is no longer the same which has been just suppressed ,
and therefore may be proposed as a new one. But this proceeding sertainly
endangers the main question, by dividing
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its friends, some of whom may choose it unamended, rather than lose it
altogether; while others of them may vote, as Hatsell advises, that the main
question be not now put, with a view to move it again in an
amended form. The enemies of the main question by this manoeuvre to the
previous question, get the enemies to the amendment added to them on the first
vote, and throw the friends of the main question under the embarrassment of
rallying again as they can. To support his opinion, too, he makes the deciding
circumstance, whether an amendment may or may not be made, to be, that the
previous question has been proposed from the chair. But as the rule is, that
the House is in possession of a question as soon as it is moved and seconded,
it cannot be more than possessed of it by its being also proposed from the
chair. It may be said, indeed, that the object of the previous question being
to get rid of a question, which it is not expedient should be discussed, this
object may be defeated by moving to amend, and, in the discussion of that
motion, involving the subject of the main question. But so may the object of
the previous question be defeated by moving the amended question, as Mr.
Hatsell proposes, after the decision against putting the original question. He
acknowledges. too, that the practice has been to admit previous amendment, and
only cites a few late instances to the contrary. On the whole, I should think
it best to decide it ab inconvenienti; to wit, Which is most inconvenient, to
put
it in the power of one side of the House to defeat a proposition by hastily
moving the previous question and thus forcing the main question to be put
amended? or to put it in the power of the other side to force on, incidentally
at least, a discussion which would be better avoided? Perhaps the last is the
least inconvenience; inasmuch as the Speaker, by confining the discussion
rigorously to the amendment only, may prevent their going into the main
question; and inasmuch also, as so great a proportion of the cases, in which
the previous question is called for, are fair and proper subjects of public
discussion, and ought not to be obstructed by a formality introduced for
questions of a peculiar character.
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SECTION XXXV.
AMENDMENTS.
On an amendment being moved, a member who has spoken to the main question may
speak again to the amendment.-Scob. 23.
If an amendment be proposed inconsistent with one already agreed to, it is a
fit ground for its rejection by the House; but not within the competence of
the Speaker to suppress, as if it were against order. For; were he permitted to
draw questions of consistence within the vortex of order, he might usurp a
negative on important modifications, and suppress instead of subserving the
legislative will.
VOL. II-26
-402-
Amendments may be made so as totally to alter the nature of the proposition ;
and it is a way of getting rid of a proposition, by making it bear a sense
different from what was intended by the movers, so that they vote against it
themselves.-2 Hats. 79; 4, 82, 84. A new bill may be ingrafted, by way of
amendment, on the words, " Be it enacted," &c.1 Grey, 190, l92.
If it be proposed to amend by leaving out certain words, it may be moved as an
amendment to this amendment, to leave out a part of the words of the amendment,
which is equivalent to leaving them in the bill.-2 Hats. 80, 9. The Parliamentary question is
always, whether the words shall stand part of the bill ?
When it is proposed to amend by inserting a paragraph, or part of one, the
friends of the paragraph may make it as perfect as they can, by amendments,
before the question is put for inserting it. If it be received, it cannot be
amended afterwards, in the same stage, because the House has, on a vote, agreed
to it in that form. In like manner, if it is proposed to amend by striking out
a paragraph, the friends of the paragraph are first to make it as perfect as
they can by amendments, before the question is put for striking it out. If, on
the question, it be retained, it cannot be amended afterwards; because a vote
against striking out is equivalent to a vote agreeing to it in that form.
When it is moved to amend, by striking out certain
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words and inserting others, the manner of stating the question is, first to
read the whole passage to be amended, as it stands at present; then the words
proposed to be struck out; next those to be inserted; and lastly, the whole
passage, as it will be when amended. And the question, if desired, is then to
be divided, and put first on striking out. If carried, it is next on inserting
the words proposed. If that be lost, it may be moved to insert others.-2 Hats.
80, 7.
A motion is made to amend by striking out certain words, and inserting others
in their place, which is negatived. Then it is moved to strike out the same
words, and to insert others of a tenor entirely different from those first
proposed. It is negatived. Then it is moved to strike out the same words and
insert nothing, which is agreed to. All this is admissible; because to strike
out and insert A, is one proposition . To strike out and insert B, is a
different proposition . And to strike out and insert nothing is still
different. And the rejection of one proposition does not preclude the offering
a different one. Nor would it change the case were the first motion divided by
putting the question first on striking out, and that negatived. For as putting
the whole motion to the question at once would not have precluded, the putting
the half of it cannot do it.(1)
__________
(1) In a case of division of the question, and a decision against striking out,
I advance, doubtingly, the opinion here expressed. I find no authority either
way; and I know it may be viewed under a different
__________
-404-
But if it had been carried affirmatively to strike out the words and to insert
A, it could not afterwards be permitted to strike out A and insert B. The mover
of B should have notified, while the insertion of A was under debate, that he
would move to insert B. In which case, those who preferred it would join in
rejecting A.
After A is inserted, however, it may be moved to strike out a portion of the
original paragraph, comprehending A, provided the coherence to be struck out
be so substantial as to make this effectively a different proposition . For
then it is resolved into the common case of striking out a paragraph after
amending it. Nor does anything forbid a new insertion, instead of A and its
coherence.
In Senate, January 25,1798, a motion to postpone, until the second Tuesday in
February, some amendments proposed to the Constitution. The words,
" until the second Tuesday in February, " were struck out by way of amendment.
Then it was moved to add, " until the first day of June. " Objected, that it
was not in order, as the question should first be put on the longest time;
therefore, a shorter time decided against, a longer cannot be put to question.
It was answered, that this rule takes place only in filling
__________
aspect. It may be thought, that having decided separately not to strike out the
passage, the same question for striking out cannot be put over again, though
with a view to a different insertion. Still I think it more reasonable and
convenient to consider the striking out and insertion as forming one
proposition; but should readily yield to any evidence that the contrary is the
practice in Parliament.
__________
-405-
blanks for time. But when a specific time stands part of a motion, that may be
struck out as well as any other part of the motion; and when struck out, a
motion may be received to insert any other. In fact, it is not till they are
struck out, and a blank for the time thereby produced, that the rule can begin
to operate, by receiving all the propositions for different times, and putting
the questions successively on the longest. Otherwise, it would be in the power
of the mover, by inserting originally a short time, to preclude the possibility
of a longer. For, till the short time is struck out, you cannot insert a
longer; and if, after it is struck out, you cannot do it, then it cannot be
done at all. Suppose the first motion has been to amend by striking out " the
second Tuesday in February," and inserting, instead thereof, "the first of
June." It would have been regular then to divide the question, by proposing
first the question to strike out and then that to insert. Now, this is
precisely the effect of the present proceeding; only, instead of one motion
and two questions, there are two motions and two questions to eff ect it; the
motion being divided as well as the question.
When the matter contained in two bills might be better put into one, the manner
is to reject the one, and incorporate its matter into another bill by way of
amendment. So, if the matter of one bill would be better distributed into two,
any part may be struck out by way of amendment, and put into a new bill. If a
section is to be transposed, a question must
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be put on striking it out where it stands, and another for inserting it in the
place desired.
A bill passed 'by the one House, with blanks. These may be filled up by the
other, by way of amendments, returned to the first, as such, and passed. -- 3
Hats. 83.
The number prefixed to the section of a bill being merely a marginal
indication, and no part of the text of the bill, the clerk regulates that; the
House or committee is only to amend the text.
SECTION XXXVI.
DIVISION OF THE QUESTION.
If a question contain more parts than one, it may be divided into two or more
questions.-Mem. in Hakew. 29. But not as the right of an individual member,
but with the consent of the House. For who is to decide whether a question is
complicated or not ? where it is complicated? into how many propositions. it
may be divided ? The fact is, that the only mode of separating a complicated
question is by moving amendments to it; and these must be decided by the
House on a question, unless the House orders it to be divided : as on the
question, Dec. 2, 1640, making void the election of the Knights of Worcester,
on a motion it was resolved to make two questions of it, to wit, one on each
Knight.-2 Hats. 85, 86. So, wherever there are several names in a question,
they may be divided, and put one by one.
-407-
9 Grey, 444. So,1729, April 17, on an objection that a question was complicated, it was separated
by amendment: 2 Hats. 79. 5.
The soundness of these observations will be evident from the embarrass ments
produced by the loth rule of the Senate, which says "If the question in debate
contain several points, any member may have the same divided.
1798, May 30, the alien bill in quasi-committee. To a section and proviso in
the original, had been added two new provisos by way of amendment. On a motion
to strike out the section as amended, the question was desired to be divided.
To do this, it must be put first on striking out either the former proviso, or
some distinct member of the section. But 'when nothing remains but the last
member of the section, and the provisos, they cannot be divided so as to put
the last member to question by itself; for the provisos might thus be left
standing alone as exceptions to a rule when the rule is taken away: or the new
provisos might be left to a second question, after having been decided on once
before at the same reading; which is contrary to rule. But the question must be
on striking out the last member of the section as amended. This sweeps away the
exceptions with the rule, and relieves from inconsistence. A question to be
divisible, must comprehend points so distinct and entire, that one of them
being taken away, the other may stand entire. But a proviso or exception, with
an enacting clause, does not contain an entire point or proposition .
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May 31. The same bill being before the Senate. There was a proviso. that the
bill should not extend, 1. To any foreign minister; nor, 2. To any person to
whom the President should give a passport; nor, 3. To any alien merchant,
conforming himself to such regulations : as the President shall prescribe; and
division of the question into its simplest elements was called for. It was
divided into four parts, the fourth taking in the words " conforming himself,"
etc. It was objected, that the words
" any alien merchant " could not be separated from their modifying words
"conforming," etc., because these words, if left by themselves, contain no
substantive idea, will make no sense. But admitting that the divisions of a
paragraph into separate questions must be so made as that each part may stand
by itself, yet the House having, on the question, retained the first two
divisions, the words
" any alien merchant " may be struck out, and their modifying words will then
attach themselves to the preceding description of persons, and become a
modification of that description .
When a question is divided, after the question on the first member, the second
is open to debate and amendment: because it is a known rule, that a person may
rise and speak at any time before the question has been completely decided by
putting the negative, as well as the affirmative side. But the question is not
completely put when the vote has been taken on the first member only. One half
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of the question, both affirmative and negative, still remains to be put.-See
Executive Journ., June 25, 1795. The same decision by President Adams.
SECTION XXXVII.
CO-EXISTING QUESTIONS .
It may be asked whether the House can be in possession of two motions or
propositions at the same time ? So that, one of them being decided, the other
goes to question without being moved anew? The answer must be special. When a
question is interrupted by a vote of adjournment, it is thereby removed from
before the House; and does not stand ipso facto before them at their next
meeting, but must come forward in the usual way: so, when it is interrupted by
the order of the day. Such other privileged questions also as dispose of the
main question (e.g. the previous question, the postponement, or commitment )
remove it from before the House. But it is only suspended by a motion to amend,
to withdraw, to read papers, or by a question of order or privilege, and stands
again before the House when these are decided. None but the class of privileged
questions can be brought forward while there is another question before the
House; the rule being, that when a motion has been made and seconded no other
can be received except it be a privileged one.
-410-
SECTION XXXVIII.
EQUIVALENT QUESTIONS .
If, on a question for rejection, a bill be retained, it passes of course to its
next reading.-Hakew. 141. Scob. 42, and a question for a second reading
determined negatively, is a rejection without farther question.-4 Grey, 149.
And see Elsynge's Memor. 42, in what case questions are to be taken for
rejection.
Where questions are perfectly equivalent, so that the negative of the one
amounts to the affirmative of the other, and leaves no other alternative, the
decision of the one concludes necessarily the other.4 Grey, 157. Thus the
negative of striking out amounts to the affirmative of agreeing; and therefore
to put a question on agreeing after that on striking out, would be to put the
same question in effect twice over. Not so in questions of amendments between
the two Houses. A motion to recede being negatived, does not amount to a
positive vote to insist, because there is another alternative, to wit, to
adhere.
A bill originating in one House, is passed by the other with an amendment. A
motion in the originating House, to agree to the amendment, is negatived. Do
these result from this vote of disagreement ? or must the question on
disagreement be expressly voted ? The questions respecting amendments from
another House are, lst. To agree: 2d. Disagree: 3d. Recede: 4.th. Insist: 5th.
Adhere.
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lst. To agree. Either of these concludes the
2d. To disagree. other necessarily, for the positive of either is exactly the
equivalent of the negative of
the other, and no other alternative remains. On either motion,
amendments to the amendment
may be proposed; e.g. if it be
moved to disagree, those who
are for the amendment have a
right to propose amendment s,
and to make it as perfect as they
can, before the question of disagreeing is put.
3d. To recede. You may then either insist or
4th. To insist. adhere. You may then either
5th. To adhere. recede or adhere. You may
then either recede or insist.
Consequently, the negative of
these is not equivalent to a
positive vote the other way.
It does not raise so necessary
an implication as may authorize
the secretary by inf erence to
enter another vote; for two
alternatives still remain, either
of which may be adopted by
the House.
-412-
SECTION XXXIX.
THE QUESTION.
The question is to be put first on the affirmative, and then on the negative
side.
After the Speaker has put the affirmative part of the question, any member who
has not spoken before the question, may rise and speak before the negative be
put. Because it is no full question till the negative part be put.-Scob. 23;
Hats. 73.
But in small matters, and which are of course, such as receiving petitions,
reports, withdrawing motions, reading papers, etc., the Speaker most commonly
supposes the consent of the House, where no objection is expressed, and does
not give them the trouble of putting the question formally.-Scob. 22; 2 Hats.
87. 2. 87; 5 Grey, 129; 9 Grey, 301.
SECTION XL.
BILL, THIRD READING.
To prevent bills from being passed by surprise, the House,' by a standing
order, directs that they shall not be put on their passage before a fixed hour,
naming one at which the House is commonly full. Hakew. 153.
The usage of the Senate is, not to put bills on their passage till noon.
A bill reported and passed to the third reading, cannot on that day be read the
third time and passed.
-413-
Because this would be to pass on two readings on the same day. At the third
reading, the clerk reads the bill, and delivers it to the Speaker, who states
the title, that it is the third time of reading the bill, and that the question
will be, Whether it shall pass ? Formerly, the Speaker, or those who prepared a
bill, prepared also a breviate or summary statement of its contents, which the
Speaker read when he declared the state of the bill at the several readings.
Sometimes, however, he read the bill itself, especially on its passage.-Hakew.
136, 137, 153; Coke, 22, 115. Latterly, instead of this, he, at the third
reading, states the whole contents of the bill, verbatim; only instead of
reading the formal parts, " be it enacted, " etc., he states that " the
preamble recites so and so; the first section enacts, that, etc.; the second
section enacts," etc.
But in the Senate of the United States, both of these formalities are dispensed
with; the breviate presenting but an imperfect view of the bill, and being
capable of being made to present a false one; and the full statement being a
useless waste of time, immediately after a full reading by the clerk; and
especially as every member has a printed copy in his hand.
A bill, on the third reading, is not to be committed for the matter or body
thereof; but, to receive some particular clause or proviso, it hath been
sometimes suffered, but as a thing very unusual.-Hakew. 156; thus, 27 El.
1584, a bill was committed on the third reading, having been formerly committed
on the second; but it is declared not usual.-D'Ewes, 137, col. 2. 414. col.
2.
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When an essential provision has been omitted, rather than erase the bill, and
render it suspicious, they add a clause on a separate paper, engrossed and
called a rider, which is read, and put to the question three times.-Elsynge's
Memorials, 59; 6 Grey, 335; 1 Blackst. 183. For examples of riders, see 3 Hats.
121, 122, 124., 126. Every one is at liberty to bring in a rider without asking
leave.-10 Grey, 52.
It is laid down as a general rule, that amendments proposed at the second
reading shall be twice read, and those proposed at the third reading thrice
read; as also all amendments from the other House -- Town . col. 19, 23, 24, 25,
26, 27, 28.
It is with great, and almost invincible reluctance that amendments are
admitted at this reading, which occasion erasures or interlineati ons.
Sometimes the proviso has been cut off from a bill; sometimes erased.-9 Grey,
513.
This is the proper stage for filling up blanks; for if filled up before, and
now altered by erasure, it would be peculiarly unsafe.
At this reading, the bill is debated afresh, and for the most part is more
spoken to, at this time, than on any of the former readings.-Hakew. 153.
The debate on the question, Whether it should be read a third time? has
discovered to its friends and opponents the arguments on which each side relies
and which of these appear to have influence with the House; they have had time
to meet them with new arguments, and to put their old ones into new shapes. .
-415-
The former vote has tried the strength of the first opinion, and furnished
grounds to estimate the issue; and the question now offered for its passage, is
the last occasion which is ever to be offered for carrying or rejecting it.
When the debate is ended, the Speaker; holding the bill in his hand, puts the
question for its passage, by saying, " Gentlemen, all you who are of opinion
that this bill shall pass, say ay;" and after the answer of ayes, "All those of
the con.trary opinion say no. "-Hakew. 154.
After the bill has passed, there can be no further alteration of it in any
point.-Hake w. 159.
SECTION XLI.
DIVISION OF THE HOUSE.
The affirmative and negative of the question having been both put and answered,
the Speaker declares whether the yeas or nays have it by the sound, if he be
himself satisfied, and it stands as the judgment of the House. But if he be not
himself satisfied which voice is the greater, or if, before any other member
comes into the House, or before any new motion is made, (for it is too late
after that,) any member shall rise and declare himself dissatisfied with the
Speaker's decision, then the Speaker is to divide the House.-Scob. a4; a Hats.
140.
When the House of Commons is divided, the one party goes forth, and the other
remains in the House.
-416-
This has made it important which go forth, and which remain; because the
latter gain all the indolent, the indifferent, and inattentive. Their general
rule, therefore, is" that those who give their vote for the preservation of
the orders of the House shall stay in, and those who are for introducing any
new matter, or alteration, or proceeding contrary to the established course,
are to go out. But this rule is subject to many exceptions and modificatio
ns. -- 2 Rush. p. 3, fol. 92; Scob. 43, 52; Co. 12, 116; D'Ewes, 505, col. 1;
Mem. in Hakew. 25, 29; as will appear by the following statement of who go
forth.
Petition that it be received(1) Ayes.
Read. . . . . . . . . . . .
Lie on the table. . . . . . . . . . . . Noes.
Rejected after refusal to lie on Noes.
the table. . . . . . . . . . .
Referred to a committee, or AYes.
farther proceeding ......
Bill, that it be brought in. . . . Ayes
Read 1st or 2d time. . . . .
Engrossed or read 3d time. . Ayes
Proceeding on every other
stage. . . . '. . . . . . . Ayes
Committed. . . . . . . . Ayes
To a committee of the whole. Noes.
To a select committee. . . . . Ayes.
Report of a bill to lie on table Noes.
__________
(1) Noes.-9 Grays, 365.
__________
-417-
Be now read. . . . . . . . . . . . . . . Ayes.
Be taken into consideration 50 P. J.
three months hence...... 251.
Amendments be read a 2d Noes.
time ..................
Clause offered on report of bill Ayes. 334
be read 2d time. . . . . . . . . Ayes. 334
For receiving a clause. . . . . . Ayes. 334
With amendments be en-
grossed ................. Ayes. 334
That a bill be now read a 3d
time .................. Noes. 398
Receive a rider. . . . . . . . . . . . 260
Pass. . . . . . . . . . . Ayes. 260
Be printed. . . . . . . . . Ayes. 260
Committees. That A take
the chair................ Noes
To agree to the whole or any
part of report. . . . . . . . . . . . Noes
That the House do now resolve into a committee. . . Noes 291
Speaker. That he now leave
the chair, after order to go Noes
into committee. . . . . . .
That he issue warrant for a
new visit. . . . . . . . . Noes
Member. That none be ab
sent without leave. . . . Noes
Witness. That he be farther Ayes. 344
examined. . . . . . . . . . . . . .
VOL. II-27
-418-
Previous questions. . . . . . . . . Noes.
Blanks. That they be filled Ayes
with the largest sum. . . .
Amendments. That words
stand part of. . . . . . . . Ayes
Lords. That their amend- Ayes.
ments be read a 2d time. .
Messenger be received. . . . . . . Ayes
Orders of the day to be now
read, if before 2 o'clock. Ayes
If after 2 o'clock. . . . . . . . .. Noes.
Adjournment till the next sit Ayes.
ting day, if before 4 o'clock,
If after 4 o'clock. . . . . . . . . . . Noes.
Over a sitting day, (unless a Ayes.
previous resolution)
Over the 3oth January. . . . . . Noes.
For sitting on Sunday, or any Ayes
other day, not being a sit-
ting day. . . . . . . . . . .
The one party being gone forth, the Speaker names two tellers from the
affirmative, and two from the negative side, who first count those sitting in
the House; and report the number to the Speaker. Then they place themselves
within the door, two on each side, and count those who went forth, as they come
in, and report the number to the Speaker. Mem. in Hakew. 26.
A mistake in the report of the tellers may be rectified after the report
made.-2 Hats. 145. Note.
-419-
But, in both Houses of Congress, all those intricacies are avoided. The ayes
first rise, and are counted, standing in their places, by the President or
Speaker. Then they sit, and the noes rise, and are counted in like manner.
In Senate, if they be equally divided, the Vice-President announces his
opinion, which decides.
The Constitution, however, has directed that "the yeas and nays of the members
of either House, on any question, shall, at the desire of one-fifth of those
present, be entered on the journal." And again, that in all cases of re-conside
ring a hill disapproved by the President, and returned with his objections,
"the votes of both Houses shall be determined by the yeas and nays, and the
names of the persons voting for and against the bill, shall be entered on the
journals of each House respectively."
By the llth rule of the Senate, when the yeas and nays shall be called for by
one-fifth of the members present, each member called upon shall, unless for
special reasons he be excused by the Senate, declare openly, and without
debate, his assent or dissent to the question. In taking the yeas and nays, and
upon the call of the House, the names of the members shall be taken alphabetically.
When it is proposed to take a vote by yeas and nays, the President or Speaker
states that "The question is whether, e. g., the bill shall pass? That it is
proposed that the yeas and nays shall be entered on the journal. Those,
therefore, who desire it will rise." If he finds and declares that one-fifth
have risen, he then states, that "those who are of opinion that the bill shall
pass, are to answer in the affirmative, those of the contrary opinion, in the
negative." The clerk then calls over the names alphabetically, notes the yea
or nay of each, and gives the list to the President or Speaker, who declares
the result. In. Senate, if there be an equal division, the Secretary calls on
the Vice-President, who notes his affirmative or negative, which becomes the
decision of the House.
In the House of Commons, every member must give his vote the one way or the
other.-Scob. 24. As it is not permitted to any one to withdraw who is in the
House when the question is put, nor is any one to be told in the division who
was not in when the question was put.-2 Hats. 140,
-420-
This last position is always true when the vote is by yeas and nays; where the
negative as well as the affirmative of the question is stated by the President
at the same time, and the vote of both sides begins and proceeds pari passu. It
is true, also, when the question is put in the usual way, if the negative has
also been put. But if it has not, the member entering, or any other member may
speak, and even propose amendments, by which the debate may be opened again,
and the question greatly deferred. And, as some who have answered ay, may have
been changed by the new arguments, the affirmative must be put over again. If,
then, the member entering may, by speaking a few words, occasion a repetition
of the question, it would be useless to deny it on his simple call for it.
While the House is telling, no member may speak, or move out of his place;
for, if any mistake be suspected, it must be told again.-Mem . in Hakew. 26; 2
Hats. 143.
If any difficulty arises in point of order, during the division, the Speaker is
to decide peremptorily, subject to the future censure of the House, if
irregular. He sometimes permits old experienced members to assist him with
their advice, which they do sitting in their seats, covered to avoid the
appearance of debate; but this can only be with the Speaker's leave, else the
division might last several hours.2 Hats. 143.
The voice of the majority decides. For the lex
-421-
majoris partis is the law of all councils, elections, etc., where not otherwise
expressly provided -- .Hakew. 93. But if the House be equally divided,
" semper presumatur pro negante: " that is, the former law is not to be changed
but by a majority. -- Towns. col. 134.
But, in the Senate of the United States, the Vice-President decides, when the
House is divided.-Const. U. S. Art. I. Sec. 2.
When, from counting the House, on a division, it appears that there is not a
quorum, the matter continues exactly in the state in which it was before the
division, and must be resumed at that point on any future day.-2 Hats. 126.
1606, May 1, on a question whether a member having said Yea, may afterwards sit
and change his opinion ? a precedent was remembered by the Speaker, of Mr.
Morris, attorney of the wards, in 39 Eliz., who in like case changed his
opinion. Mem. in Hakew. 27.
SECTION XLII.
TITLE.
After the bill has passed, and not before, the title may be amended, and is to
be fixed by a question; and the bill is then sent to the other House.
-422-
SECTION XLIII.
RE-CONSIDERATION.
When a question has been once made and carried in the affirmative or negative,
it shall be in order for any member of the majority to move for the re-consideration thereof.-Rule
22.
1798, Jan. A bill on its second reading, being amended, and on the question,
whether it shall be read a third time negatived, was restored by a decision to
re-consider the question. Here the votes of negative and re-consideration,
like positive and negative quantities in equation, destroy one another, and are
as if they were expunged from the journals. Consequently the bill is open for
amendment, just so far as it was the moment preceding the question for the
third reading. That is to say, all parts of the bill are open for amendment,
except those on which votes have been already taken in its present stage. So
also may it be re-committed.
The rule permitting a re-consideration of a question affixing to it no
limitation of time or circumstance, it may be asked whether there is no
limitation? If, after the vote, the paper on which it has passed has been
parted with, there can be no re-consideration: as if a vote has been for the
passage of a bill, and the bill has been sent to the other House. But where the
paper remains, as on a bill rejected, when, or under what circumstances, does
it cease to be susceptible of re-consideration? This remains to be settled,
unless a sense that the right of re-consideration is a right to waste the time
of the House in repeated agitations of the same question, so that it shall
never know when a question is done with, should induce them to reform this
anomalous proceeding .
In Parliament, a question once carried, cannot be questioned again, at the same
session; but must stand as the judgment of the House.-Tow ns. col. 67; Memor.
in Hakew. 33. And a bill once rejected, another of the same substance cannot be
brought in again the same session.-Hakew.158; 6 Grey, 392. But this does not
extend to prevent putting the same questions in different stages of a bill;
because every stage of a bill submits the whole and every
-423-
part of it to the opinion of the House, as open for amendment, either by
insertion or omission, though the same amendment has been accepted or rejected
in a former stage. So in reports of committees, e.g. report of an address, the
same question is before the House, and open for free discussion.-Towns: col.
26; 2 Hats. 98, 100, 101. So, orders of the House, or instructions to
committees may be discharged . So a bill begun in one House, sent to the other,
and there rejected; may be renewed again in that other, passed, and sent
back. -- Ib. 92; 3 Hats. 161. Or if, instead of being rejected, they read it
once, and lay it aside, and put it off a month, they may offer in another to
the same effect, with the same or a different title.-Hakew. 97, 98.
Divers expedients are used to correct the effects of this rule; as, by passing
an explanatory act, if anything has been omitted or ill-expressed, 3 Hats.
278; or an act to enforce, and make more effectual an act, &c., or to rectify
mistakes in an act, &c.; or a committee on one bill may be instructed to
receive a clause to rectify the mistakes of another. Thus, June 24.,1685, a
clause was inserted in a bill for rectifying a mistake committed by a clerk in
engrossing a bill of reply.-2 Hats. 194. 6. Or the session may be closed for
one, two, three, or more days, and a new one commenced. But then all matters
depending must be finished, or they fall, and are to begin de novo.-2 Hats. 94,
98. Or a part of the subject
-424-
may be taken up by another bill, or taken up in a different way: 6 Grey, 316.
And in cases of the last magnitude, this rule has not been so strictly and
verbally observed as to stop indispensable proceedings altogether.-2 Hats.
92. 98. Thus, when the address on the preliminaries of peace, in 1782, had
been lost by a majority of one; on account of the importance of the question,
and smallness of the majority, the same question in substance, though with
words not in the first, and which might change the opinions of some members,
was brought on again and carried : as the motives for it were thought to
outweigh the objections of form.2 Hats. 99, l00.
A second bill may be passed, to continue an act of the same session; or to
enlarge the time limited for its execution.-2 Hats. 95, 98. This is not in
contradiction to the first act.
SECTION XLIV.
BILLS SENT TO THE OTHER HOUSE.
All bills passed in the Senate, shall before they are sent to the House of
Representatives, be examined by the committees respectively who brought in
such bills, or to whom the same have been last committed in Senate.-Rule 23.
A bill from the other House is sometimes ordered to lie on the table.-2 Hats.
97.
When bills, passed in one House and sent to the other, are grounded on special
facts requiring proof, it is usual, either by message, or at a conference, to
-425-
ask the grounds and evidence; and this evidence, whether arising out of
papers, or from the examination of witnesses, is immediately communicated.3
Hats. 48.
SECTION XLV.
AMENDMENTS BETWEEN THE HOUSES.
When either House,e.g. the House of Commons, sends a bill to the other, the
other may pass it with amendments. The regular progression in this case is,
that the Commons disagree to the amendment; the Lords insist on it; the
Commons insist on their disagreement; the Lords adhere to their amendment; the
Commons adhere to their disagreement. The term of insisting may be repeated as
often as they choose, to keep the question open. But the first adherence by
either renders it necessary for the other side to recede or adhere also; when
the matter is usually suffered to fall.-10 Grey, 148. Latterly, however, there
are instances of their having gone to a second adherence. There must be an
absolute conclusion of the subject somewhere, or otherwise transaction s
between the Houses would be endless.3 Hats. 268, 270. The term of insisting, we
are told by Sir John Trevor, was then [1679] newly introduced into Parliamentary usage, by the
Lords.-7 Grey, 94. It was certainly a happy innovation, as it
multiplies the opportunities of trying modifications which may bring the House
to a concurrence.
-426-
Either House, however, is free to pass over the term of insisting, and to
adhere in the first instance.-1 0 Grey, 146. But it is not respectful to the
other. In the ordinary Parliamentary course, there are two free conference s
at least before adherence.-10 Grey, 147.
Either House may recede from its amendment, and agree to the bill; or recede
from their disagreement to the amendment, and agree to the same absolutely, or
with an amendment: For here the disagreement and receding destroy one another,
and the subject stands as before the disagreement.-Elsynge, 23, 27; 9 Grey,
476.
But the House cannot recede from or insist on, its own amendment with an
amendment, for the same reason that it cannot send to the other House an
amendment to its own act after it has passed the act. They may modify an
amendment from the other House by ingrafting an amendment on it, because they
have never assented to it; but they cannot amend their own amendment, because
they have, on the question, passed it in that form; 9 Grey, 353; 10 Grey, 240.
In Senate, March 29, 1798. Nor where one House has adhered to their amendment,
and the other agrees with an amendment, can the first House depart from the
form which they have fixed by an adherence.
In the case of a money bill, the Lords' proposed amendments become, by delay,
confessedly necessary. The Commons, however, refused them, as
-427-
infringing on their privilege as to money bills, but they offered themselves to
add to the bill a proviso to the same effect, which had no coherence with the
Lords' amendments, and urged, that it was an expedient warranted by precedent,
and not unparliamentary in a case become impracticable, and irremediable in
any other way.-3 Hats. 256, 266, 270, 271. But the Lords refused and the bill
was lost, 1 Chand. 288. A like case, 1 Chand. 311. So the Commons resolve, that
it is unparliamentary to strike out at a conference anything in a bill which
hath been agreed and passed by both Houses, 6 Grey, 274; 1 Chand. 312.
A motion to amend an amendment from the other House, takes precedence of a
motion to agree or disagree.
A bill originating in one House, is passed by the other with an amendment.
The originating House agrees to their amendment with an amendment. The other
may agree to their amendment with an amendment; that being only in the second
and not the third degree. For, as to the amending House, the first amendment
with which they passed the bill is a part of its text; it is the only text they
have agreed to. The amendment to that text by the originating House, therefore,
is only in the first degree, and the amendment to that again by the amending
House is only in the second, to wit, an amendment to an amendment, and so
admissible. Just so when, on a bill from the originating
-428-
House, the other, at its second reading, makes an amendment; on the third
reading, this amendment is become the text of the bill, and if an amendment to
it be moved, an amendment to that amendment may also be moved, as being only in
the second degree.
SECTION XLVI.
CONFERENCES.
It is on the occasion of amendments between the Houses that conferences are
usually asked; but they may be asked in all cases of difference of opinion
between the two Houses on matters depending between them. The request of a
conference, however, must always be by the House which is possessed of the
papers.-3 Hats. 71; 1 Grey, 435; 4 Hats. 3, 43.
Conferences may be either simple or free. At a conference simply, written
reasons are prepared by the House asking it, and they are read and delivered
without debate, to the managers of the other House at the conference; but are
not then to be answered.
-3 Grey,144. The other House then, if satisfied, vote the reasons satisfactor
y, or say nothing; if not satisfied, they resolve them not satisfactory, and
ask a conference on the subject of the last conference, where they read and
deliver in like manner written answers to those reasons.-3 Grey, 183. They are
meant chiefly to record the justification of each House to the nation at
large, and to posterity, and in proof that the miscarriage of a necessary
measure is not
-429-
imputable to them.-3 Grey,255. At free conferences, the managers discuss viva
voce and freely, and interchange propositions for such modifications as may
be made in a Parliamentary way, and may bring the sense of the two Houses
together. And each party reports in writing to their respective Houses the
substance of what is said on both sides, and it is entered in their journals.-6
Grey, 220; 3 Hats. 280. (Vide Joint Rules,1.) This report cannot be amended or
altered as that of a committee may be.-Journ. Senate, May 24, 1796.
A conference may be asked, before the House asking it has come to a resolution
of disagreement, insisting or adhering. -- 3 Hats. 269, 341. In which case the
papers are not left with the other conferees, but are brought back to be the
foundation of the vote to be given. And this is the most reasonable and
respectful proceeding . For, as was urged by the Lords on a particular
occasion, " it is held vain, and below the wisdom of Parliament, to reason or
argue against fixed resolutions, and upon terms of impossibility to persuade.
"-3 Hats.226. So the Commons say " an adherence is never delivered at a free
conference, which implies debate."-10 Grey, 147. And on another occasion, the
Lords made it an objection that the Commons had asked a free conference after
they had made resolutions of adhering. It was then affirmed, however, on the
part of the Commons, that nothing was more Parliamentary than to proceed with
free conferences after adhering; 3 Hats.
-430-
269; and we do in fact see instances of conference or of free conference, asked
after the resolution of disagreeing.-3 Hats. 251, 253, 260, 286, 291, 316,
349, of insisting, ib. 280, 296, 299, 319, 322, 355, of adhering, 269, 270,
283, 300; and even of a second or final adherence. -- 3 Hats. 270. And in all
cases of conference asked after a vote of disagreement, &c., the conferees of
the House asking it are to leave the papers with the conferees of the other;
and in one case where they refused to receive them, they were left on the table
in the conference chamber.-3 Hats.
271, 317, 323, 354; 10 Grey, 146. The Commons
affirm, that it is usual to have two free conferences or more before either
House proceeds to adhere, because, before that time, the Houses have not had
the full opportunity of making replies to one another's arguments, and, to
adhere so suddenly and unexpectedly, excludes all possibility of offering
expedients.-4 Hats. 330.
After a free conference the usage is to proceed with free conferences, and not
to return again to a conference.-3 Hats. 270; 9 Grey, 229.
After a conference denied, a free conference may be asked.-1 Grey, 45.
When a conference is asked, the subject of it must be expressed, or the
conference not agreed to.-Ord. H. Com. 89; 1 Grey,425; 7 Grey, 31. They are
sometimes asked to inquire concerning an offence or default of a member of the
other House, 6 Grey, 181; 1 Chand. 304; or the failure of the other House to
-431-
present to the King a bill passed by both Houses, 8 Grey, 302; or on
information received, and relating to the safety of the nation, 10 Grey, 711,
or when the methods of Parliament are thought by the one House to have been
departed from by the other, a conference is asked to come to a right understand
ing thereon.-1o 0 Grey. 148. So, when an unparliamentary message has bee
sent, instead of answering it, they ask a conference.-3 Grey, 155. Formerly,
an address, or articles of impeachment, or a bill with amendments, or a vote
of the House, or concurrence in a vote, or a message from the King, were
sometimes communicated by way of conference.-7 Grey, 128, 300, 387; 7 Grey,
80; 8 Grey, 210, 255; 1 Torbuck's Deb. 278; 10 Grey, 293; 1 Chandler, 49, 287.
But this is not modern practice.-8 Grey,255.
A conference has been asked after the first reading of a bill. 1 Grey, 194.
This is a singular instance. During the time of a conference, the House can do
no business. As soon as the names of the managers are called over, and they are
gone to the conference, the Speaker leaves the chair, without any question, and
resumes it in the return of the managers. It is the same while the managers of
an impeachment are at the House of Lords.-4 Hats. 47,209, 288.
-432-
SECTION XLVII.
MESSAGES.
Messages between the Houses are to be sent only while both Houses are
sitting.-3 Hats. 15. They are received during a debate, without adjourning the
debate.-3 Hats. 22.
In Senate, the messengers are introduced in any state of business, except-1.
While a question is putting. 2. While the yeas and nays are calling. 3. While
the ballots are calling. The first case is short: the second and third are
cases where any interruption might occasion errors difficult to be corrected.-
So arranged, June 15th, 1798.
In the House of Representatives, as in Parliament, if the House be in a
committee when a messenger attends, the Speaker takes the chair to receive the
message, and then quits it to return into a committee, without any question or
interruption.-4 Grey, 226.
Messengers are not saluted by the members, but by the Speaker, for the House.-2
Grey, 253, 274.
If messengers commit an error in delivering their messages, they may be
admitted, or called in, to correct their message.-4. Grey, 41. Accordingly,
March 13, l800, the Senate having made two amendments to a bill from the House
of Representatives, their secretary, by mistake, delivered one only; which
being inadmissible by itself, that House disagreed, and notified the Senate of
their disagreement. This produced a discovery of the mistake. The secretary
was sent to the other House to correct his mistake, the correction was
received, and the two amendments acted on de novo.
As soon as the messenger, who has brought bills
-433-
from the other House, has retired, the Speaker holds the bills in his hand, and
acquaints the House,
" That the other House have, by their messenger sent certain bills," and then
reads their titles, and delivers them to the clerk to be safely kept till they
shall be called for to be read.-Hake w.178.
It is not the usage for one House to inform the other by what numbers a bill
has passed.-10 Grey, 150. Yet they have sometimes recommended a bill as of
great importance to the consideration of the House to which it is sent.-3
Hats.25. Nor when they have rejected a bill from the other House, do they give
notice of it; but it passes sub silentio to prevent unbecoming altercation.-1
Black. 133.
But in Congress the rejection is notified by message to the House in which the
bill originated.
A question is never asked by the one House of the other by way of message, but
only at a conference; for this is an interrogatory, not a message.-3 Grey,
151, 181.
When a bill is sent by one House to the other, and is neglected, they may send
a message to remind them of it.-3 Hats. 25; 5 Grey, 154. But if it be mere
inattention, it is better to have it done informally, by communications
between the Speakers, or members of the two Houses.
Where the subject of a message is of a nature that it can properly be
communicated to both Houses of Parliament, it is expected that this communication
VOL. II-28
-434-
should be made to both on the same day. But where a message was accompanied
with an original declaration, signed by the party, to which the message
referred, its being sent to one House was not noticed by the other, because the
declaration, being original, could not possibly be sent to both Houses at the
same time.-2 Hats. 260, 261, 262.
The King having sent original letters to the Commons, afterwards desires they
may be returned that he may communicate them to the Lords.-1 Chandler, 303.
SECTION XLVIII.
ASSENT.
The House which has received a bill, and passed it, may present it for the
King's assent, and ought to do it, though they have not by message notified to
the other their passage of it. Yet the notifying by message is a form which
ought to be observed between the two Houses, from motives of respect and good
understanding.-3 Hats. 242. Were the bill to be withheld from being presented
to the King, it would be an infringement of the rules of Parliament.-2 Hats.
242.
When a bill has passed both Houses of Congress, the House last acting on it
notifies its passage to the other, and delivers the bill to the joint committee
of enrolment, who see that it is truly enrolled in parchment. When the bill is
enrolled it is not to be written in paragraphs, but solidly and all of a
piece, that the blanks within the paragraphs may not give room for forgery.-9
Grey, 143. It is then put in the hands of the clerk of the House of Representatives, to have it
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signed by the Speaker. The clerk then brings it by way of message to the
Senate, to be signed by their President. The secretary of the Senate returns it
to the committee of enrolment, who present it to the President of the United
States. If he approves, he signs and deposits it among the rolls in the office
of the Secretary of State and notifies by message the House in which it
originated, that he has approved and signed it; of which that House informs the
other by message. If the President disapproves, he is to return it, with his
objections, to the House in which it shall have originated; who are to enter
the objections at large on their journal, and proceed to reconsider it. If,
after such reconsideration, two-thirds of the House shall agree to pass the
bill, it shall be sent, together with the President's objections, to the other
House, by which it shall likewise be reconsidered, and if approved by
two-thirds of that House, it shall become a law. If any bill shall not be
returned by thc President within ten days (Sundays excepted) after it shall
have been presented to him, the same shall be a law, in like manner as if he
had signed it unless the Congress by their adjournment, prevent its return; in
which case it shall not be a law.-Const. U. S., Art. I. Sec. 7.
SECTION XLIX.
JOURNALS.
Every order, resolution, or vote, to which the concurrence of the Senate and
the House of Representatives may be necessary, (except on a question of
adjournment,) shall be presented to the President of the United States, and
before the same shall take effect, shall be approved by him, or, being
disapproved by him, shall be re-passed by two-thirds of the Senate and House
of Representatives, according to the rules and limitations prescribed in the
case of a bill.-Const. U. S., Art. I. Sec. 7.
Each House shall keep a journal of its proceedings, and from time to time
publish the same, excepting such parts as may, in their judgment, require
secrecy.-Const. I. 5, 3.
Every vote of Senate shall be entered on the journal, and a brief statement of
the contents of each petition, memorial, or paper, presented to the Senate, be
also inserted on the journal.-Rule 24.
The proceedings of the Senate, when not acting as in a committee of the House,
shall be entered on the journals, as concisely as possible, care being taken to
detail a true account of the proceeding s -- Rule 26.
The titles of bills, and such part thereof only as shall be affected by
proposed amendments, shall be inserted on the journals.-Rule 27.
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If a question is interrupted by a vote to adjourn, or to proceed to the orders
of the day, the original question is never printed in the journal, it never
having been a vote, nor introductory to any vote; but when suppressed by the
previous question, the first question must be stated, in order to introduce,
and make intelligible, the second.-2 Hats. 83.
So also, when a question is postponed, adjourned, or laid on the table, the
original question, though not yet a vote, must be expressed in the journals;
because it makes part of the vote of postponement, adjourning, or layina on
the table.
Where amendments are made to a question; those amendments are not printed in
the journals, separated from the question; but only the question as finally
agreed to by the House. The rule of entering in the journals only what the
House has agreed to, is founded in great prudence and good sense; as there may
be many questions proposed which it may be improper to publish to the world, in
the form in which they are made.-2 Hats. 85.
In both Houses of Congress, all questions whereon the yeas and nays are desired
by one-fifth of the members present, whether decided affirmatively or
negatively, must be entered on the journals.-C onst., I. 5, 3.
The first order for printing the votes of the House of Commons, was October
30,1685.-1 Chandler, 387.
Some judges have been of opinion, that the journals of the House of Commons are
no records, but remembrances. But this is no law.-Cob. 110,111;
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Lex. Parl.114,11 5; Four. H. C. Mar.17, 1592; Hale, Parl. 105. For the Lords,
in their House, have power of judicature; the Commons, in their House, have
power of judicature; and both Houses together have power of judicature; and the
book of the clerk of the House of Commons is a record, as is affirmed by act of
Parliament.-6 H. 8. c. 16; Inst. 23, 24; and every member of the House of
Commons has a judicial place.-4 Inst. 15. As records, they are open to every
person; and a printed vote of either House is sufficient ground for the other
to notice it. Either may appoint a committee to inspect the journals of the
other, and report what has been done by the other in any particular case.-2
Hats. 261; 3 Hats. 27, 30. Every member has a right to see the journals, and to
take and publish votes from them. Being a record, every one may see and publish
them.-6 Grey, 118, 119.
On information of a mis-entry or omission of an entry in the journal, a
committee may be appointed to examine and rectify it, and report it to the
House.-2 Hats.194, 5.
SECTION L.
ADJOURNMENT.
The two Houses of Parliament have the sole, separate, and independent power of
adjourning, each their respective Houses. The King has no
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authority to adjourn them; he can only signify his desire, and it is in the
wisdom and prudence of either House to comply with his requisition, or not, as
they see fitting.-2 Hats. 332; 1 Blackstone, 186; 5 Grey, 122.
By the Constitution of the United States, a smaller number than a majority may
adjourn from day to day.-1. 5. But neither House, during the session of
Congress, shall, without the consent of the other, adjourn for more than three
days, nor to any other place than that in which the two Houses shall be
sitting.-1. 5. The President may on, extraordinary occasions, convene both
Houses, or either of them, and in case of disagreement between them, with
respect to the time of adjournment, he may adjourn them to such time as he
shall think proper: Const. II. 3.
A motion to adjourn simply, cannot be amended as by adding, " To a particular
day." But must be put simply, " That this House do now adjourn? " and if
carried in the affirmative, it is adjourned to the next sitting dav, unless it
has come to a previous resolution, " That at its rising, it will adjourn to a
particular day; " and then the House is adjourned to that day.-2 Hats. 82.
Where it is convenient that the business of the House be suspended for a short
time; as for a conference presently to be held, &c., it adjourns during
pleasure.-2 Hats. 305. Or for a quarter of an hour.
-5 Grey, 331.
If a question be put for adjournment, it is no adjournment till the Speaker
pronounces it.-5 Grey, 137. And from courtesy and respect, no member leaves his
place till the Speaker has passed on.
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SECTION LI.
A SESSION.
Parliament have three modes of separation, to wit, by adjournment, by
prorogation, by dissolution by the King, or by the efflux of the term for
which they were elected. Prorogation or dissolution constitutes there what is
called a session; provided some act has passed. In this case, all matters
depending before them are discontinued, and at their next meeting are to be
taken up de novo, if taken up at all.-1 Blackstone, 186. Adjournment, which is
by themselves, is no more than a continuance of the session from one day to
another, or for a fortnight, a month, etc., ad libitum. All matters depending
remain in statu quo, and when they meet again, be the term ever so distant, are
resumed without any fresh commencement, at the point at which they were
left.-1 Lev. 165; Lex. Parl. c. 2; 1 Ro. Rep. 29; 4 Inst. 7, 27, 28; Hut. 61; 1
Mod. 152; Ruffh. Fac. L. Dict. Parliaments; Blackstone, 186. Their whole
session is considered in law but as one day, and has relation to the first day
thereof.-Bro. Abro. Parliament, 86.
Committees may be appointed to sit during a recess by adjournment, but not by
prorogation.5 Grey, 374; 9 Grey, 350; 1 Chandler, 50. Neither House can
continue any portion of itself in any Parliamentary function, beyond the end
of the session, without the consent of the other two branches.
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When done, it is by a bill constituting them commissioners for the particular
purpose.
Congress separate in two ways only, to wit, by adjournment or dissolution by
the efflux of their time. What then constitutes a session with them? A
dissolution certainly closes one session, and the meeting of the new Congress
begins another. The Constitution authorizes the President, " On extraordinary
occasions, to convene both Houses, or either of them."-Art. 1. Sec. 3. If
convened by the President's proclamation, this must begin a new session, and
of course determine the preceding one to have been a session. So, if it meets
under the clause of the Constitution, which says, "The Congress shall
assemble, at least once in every year, and such meeting shall be on the first
Monday in December, unless they shall by law appoint a different day,"1.
4,-this must begin a new session. For even if the last adjournment was to this
day, the act of adjournment is merged in the higher authority of the
Constitution, and the meeting will be under that, and not under their
adjournment. So far we have fixed landmarks for determining sessions. In
other cases, it is declared by the joint vote authorizing the President of the
Senate and the Speaker to close the session on a fixed day, which is usually in
the following form, " Resolved, by the Senate and House of Representatives,
that the President of the Senate and the Speaker of the House of Representa
tives, be authorized to close the present session, by adjourning their
respective Houses on the-day of-."
When it was said above, that all matters depending before Parliament were
discontinued by the determination of the session, it was not meant for
judiciary cases, depending before the House of Lords, such as impeachments,
appeals, and writs of error. These stand continued of course to the next
session.-Ra ym. 120, 381; Ruffh. Fac. L. D. Parliament.
Impeachments stand in like manner continued before the Senate of the United
States.
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SECTION LII.
TREATIES.
The President of the United States has power, by and with the advice and
consent of the Senate, to make treaties provided two-thirds of the Senators
present concur.-Const. U. S., Art. 2. Sec. 2.
Resolved, That all confidential communications, made by the President of the
United States to the Senate, shall be, by the members thereof, kept inviolably
secret; and that all treaties, which may hereafter be laid before the Senate,
shall also be kept secret, until the Senate shall, by their resolution, take
off the injunction of secresy.-Dec. 22d, 1804.
Treaties are legislative acts. A treaty is a law of the land. It differs from
other laws only as it must have the consent of a foreign nation, being but a
contract with respect to that nation. In all countries, I believe, except
England, treaties are made by the legislative power; and there, also, if they
touch the laws of the land, they must be approved by Parliament. Ware vs.
Hilton.-3 Dallas's Rep. 199. It is acknowledged, for instance, that the King
of Great Britain cannot, by a treaty, make a citizen of an alien.-Vattel, b.
1, c. 19, sec. 214. An act of Parliament was necessary to validate the American
treaty of 1783. And abundant examples of such acts can be cited. In the case of
the treaty of Utrecht, in 1712, the commercial articles required the concurrence of Parliament.
But a bill brought in for that purpose was rejected. France,
the other contracting party, suffered these articles, in practice, to be not
insisted on, and adhered to the rest of the
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treaty.-4 Russell's Hist. Mod. Europe, 457; 2 Smollet, 242, 246.
By the Constitution of the United States, this department of legislation is
confined to two branches only, of the ordinary Legislature; the President
originating, and Senate having a negative. To what subject this power extends,
has not been defined in detail by the Constitution; nor are we entirely agreed
among ourselves. 1. It is admitted that it must concern the foreign nation,
party to the contract, or it would be a mere nullity res inter alias acta. 2.
By the general power to make treaties, the Constitution must have intended to
comprehend only those objects which are usually regulated by treaty, and
cannot be otherwise regulated. 3. It must have meant to except out of these the
rights reserved to the States; for surely the President and Senate cannot do by
treaty what the whole government is interdicted from doing in any way. 4. And
also to except those subjects of legislation in which it gave a participation
to the House of Representatives. This last exception is denied by some, on the
ground that it would leave very little matter for the treaty power to work on.
The less the better, say others. The Constitution thought it wise to restrain
the Executive and Senate from entangling and embroiling our affairs with those
of Europe. Besides, as the negotiations are carried on by the Executive alone,
the subjecting to the ratification of the Representatives such articles as are
within their participation, is no more inconvenient than to the Senate. But
the ground of this exemption is denied as unfounded. For examine, e.g., the
treaty of commerce with France, and it will be found that out of thirty-one
articles, there are not more than small portions of two or three of them which
would not still remain as subjects of treaties, untouched by these exceptions.
Treaties being declared, equally with the laws of the United States, to be the
supreme law of the land, it is understood that an act of the Legislature alone
can declare them infringed and rescinded. This was accordingly the process
adopted in the case of France, 1798.
It has been the usage of the Executive; when it communicates a treaty to the
Senate for their ratification, to communicate also the correspondence of the
negotiations. This having been omitted in the case of the Prussian treaty, was
asked by a vote of the House of February 12, l800, and was obtained. And in
December, l800, the Convention of that year, between the United States and
France, with
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the report of the negotiations by the Envoys, but not their instruction s,
being laid before the Senate, the instructions were asked for, and communicated by the President.
The mode of voting on questions of ratification is by nominal call.
Resolved, as a standing rule, That whenever a treaty shall be laid before the
Senate for ratification, it shall be read a first time for information only;
when no motion to reject, ratify, or modify the whole or any part, shall be
received.
That its second reading shall be for consideration; and on a subsequent day,
when it shall be taken up as in a committee of the whole, and every one shall
be free to move a question on any particular article in this form: " Will the
Senate advise and consent to the ratification of this article?" or to propose
amendments thereto, either by inserting or leaving out words, in which last
case the question shall be,
" Shall the words stand part of the article? " And in every of the said cases,
the concurrence of two-thirds of the Senators present shall be required to
decide affirmatively. And when through the whole, the proceedings shall be
stated to the House, and questions be again severally put thereon for
confirmation, or new ones proposed, requiring in like manner a concurrence of
two-thirds for whatever is retained or inserted.
That the votes so confirmed shall, by the House or a committee thereof, be
reduced into the form of a ratification with or without modifications, as may
have been decided, and shall be proposed on a subsequent day, when every one
shall again be free to move amendments, either by inserting or leaving out
words; in which last case the question shall be, "Shall the words stand part of
the resolution? " And in both cases the concurrence of two-thirds shall be
requisite to carry the affirmative; as well as on the final question to advise
and consent to the ratification in the form agreed to.-Rule of Jan. 6, 1801.
Resolved, That when any question may have been decided by the Senate, in which
two-thirds of the members present are necessary to carry the affirmative, any
member who voted on that side which prevailed in the question may be at liberty
to move for a reconsideration and a motion for reconsideration shall be
decided by a majority of votes.-Rule of Feb. 3, 1801.
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SECTION LIII.
IMPEACHMENT.
These are the provisions of the Constitution of the United States on the
subject of impeachments. The following is a sketch on some of the principles
and practices of England on the same subject.
The House of Representatives shall have the sole power of impeachment.-Const.
U. S., Art. 1. Sec. 3.
The Senate shall have the sole power to try all impeachments. When sitting for
that purpose, they shall be on oath or affirmation. W hen the President of the
United States is tried, the Chief Justice shall preside; and no person shall be
convicted without the concurrence of two-thirds of the members present.
Judgment, in cases of impeachment, shall not extend further than to removal
from office, and disqualification to hold and enjoy any office of honor,
trust, or profit, under the United States. But the party convicted shall
nevertheless be liable and subject to indictment, trial, judgment, and
punishment, according to law.-Const. U. S., Art. 1. Sec. 3.
The President, Vice-President, and all civil officers of the United States,
shall be removed from office on impeachment for, and conviction of, treason,
bribery, or other high crimes and misdemeanors. Const. U. S., Art. 2. Sec. q.
The trial of crimes, except in cases of impeachment, shall be by jury.-Cons t.
U. S., Art. 3. Sec. 2.
Jurisdiction.-The Lords cannot impeach any to themselves, nor join in the
accusation, because they are judges.-Seld. Judic. in Parl. 12, 63. Nor can
they proceed against a commoner, but on complaint of the Commons.-1 b. 84. The
Lords may not, by the law, try a commoner for capital offence, on the
information of the King, or a private person; because the accused is entitled
to a trial by his peers gener
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ally; but on accusation by the House of Commons, they may proceed against the
delinquent, of whatsoever degree, and whatsoever be the nature of the offence;
for there they do not assume to themselves trial at common law. The Commons are
then instead of a jury, and the judgment is given on their demand, which is
instead of a verdict. So the Lords do only judge but not try the delinquent.
1b. 6, 7. But Wooddeson denies that a commoner can now be charged capitally
before the Lords, even by the Commons; and cites Fitzharris's case, 1681,
impeached of high treason, where the Lords remitted the prosecution to the
inferior court.-8 Grey's Deb. 325, 6, 7; 2 Wooddeson, 601, 576; 3 Seld. 1610,
1619, 1641; 4 Black. 257; 3 Seld. 1604, 1618, 9. 1656.
Accusation.-The Commons, as the grand inquest of the nation, become suitors
for penal justice.-2 Woodd. 597; 6 Grey, 356. The general course is to pass a
resolution, containing a criminal charge against the supposed delinquent, and
then to direct some member to impeach him by oral accusation, at the bar of the
House of Lords, in the name of the Commons. The person signifies, that the
articles will be exhibited, and desires that the delinquent may be sequestered
from his seat, or be committed, or that the Peers will take order for his
appearance .
-Sachev. Trial.325; 2 Wnodd. 602, 605; Lords' Jour. 3 June,1701; 1 Wms. 616;
Grey, 324.
Process.-If the party do not appear, proclamations are to be issued giving him
a day to appear.
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On their return they are strictly examined. If any error be found in them, a
new proclamation issues, giving a short day. If he appear not, his goods may
be arrested, and they may proceed.-Seld. Jud. 98, 99.
Articles.-The accusation (article) of the Commons, is substituted in place of
an indictment. Thus, by the usage of Parliament, an impeachment for writing or
speaking the particular words, need not be specified.-Sach. Tr. 325; 2 Woodd.
602, 605; Lords' Journ. 3 June,1701; 1 Wms. 616.
Appearance .-If he appears, and the case be capital, he answers in custody;
though not if the accusation be general. He is not to be committed but on
special accusations . If it be for a misdemeanor only, he answers a Lord in
his place, a Commoner at the bar, and not in custody, unless, on the answer ,
the Lords find cause to commit him till he find sureties to attend, and lest he
should fly.-Seld. Jud. 98, 99. A copy of the articles is given him, and a day
fixed for his answer.-T. Ray; 1 Rushw. 268; Fost. 232. 1 Clar. Hist. of the
Reb. 379. On a misdemeanor, his appearance may be in person, or he may answer
in writing, or by attorney.-S eld. Jud. l00. The general rule on accusation for
a misdemeanor is, that in such a state of liberty or restraint as the party is
when the Commons complain of him, in such he is to answer.-Seld. Jud.101. If
previously committed by the Commons, he answers as a prisoner. But this may be
called, in
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some sort, judicium parium suorum.-Se ld. Jud. In misdemeanors, the party has
a right to counsel by the common law; but not in capital Jud. Seld. 102-5.
Answer.-The answer need not observe great strictness of form. He may plead
guilty as to part, and defend as to the residue; or, saving all exceptions,
deny the whole, or give a particular answer to each article separately.-1
Rush. 247; 2 Rush. 1374; 12 Parl. Hist. 442; 3 Lords' Journ. 13 Nov., 1643; 2
Woodd. 607. But he cannot plead a pardon in bar to the impeachment.-2 Woodd.
618; 2 St. Tr. 735.
Replication, rejoinder, &c.-There may be a replication, rejoinder, &c.-Seld.
Jud. 114; 8 Grey's Deb. 233; Sach. Tr. 15; Journ. House of Commnons, 6 March,
1640, 1.
Witnesses.-The practice is to swear the witnesses in open House, and then
examine them there: or a committee may be named, who shall examine them in
committee either on interrogatories agreed on in the House, or such as the
committee, in their discretion, shall demand.-Se ld. Jud. 120, 123.
Jury.-In the case of Alice Pierce, 1 R. 2. a jury was empannelled for her
trial before a committee. Seld. Jud. 123. But this was on a complaint, not an
impeachment by the Commons.-Seld. Jud. 163. It must also have been for a
misdemeanor only, as the Lords Spiritual sat in the case, which they do on
misdemeanors, but not in capital cases.-Seld . Jud. 148. The judgment was a
forfeiture of all her lands
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and goods.-Seld. Jud. 188. This, Selden says, is the only jury he finds
recorded in Parliament for misdemeanors; but he makes no doubt if the
delinquent doth put himself on the trial of his country, a jury ought to be
empannelled: and he adds, that it is not so on impeachment by the Commons;
for they are in oco proprio, and here no jury ought to be empannelled.-1b.
124. The Lord Berkeley, 6 E. 3, was arraigned for the murder of, L. 2, on an
information on the part of the King, and not on impeachment of the Commons;
for then they had been patria sua. He waived his peerage, and was tried by a
jury of Gloucesters hire and Warwickshire.1b. 125. In one, 1 H. 7, the Commons
protest that they are not to be considered as parties to any judgment given, or
hereafter to be given in Parliament.
-1b. 133. They have been generally, and more justly considered, as is before
stated, as the grand jury. For the conceit of Selden is certainly not accurate,
that they are the patria sua of the accused, and that the Lords do only judge,
but not try. It is undeniable that they do try. For they examine witnesses as
to the facts" and acquit or condemn according to their own belief of them. And
Lord Hale says, " the Peers are judges of law as well as of fact. "-2 Hale, P.
C. 275. Consequently of fact as well as of law.
Presence of Commons.-The Commons are to be present at the examination of
witnesses.-Seld. Jud. 124.. Indeed, they are to attend throughout, either
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as a committee of the whole House; or otherwise, at discretion, appoint
managers to conduct the proofs.
-Rushw. Tr. of Straff. 37; Com. Journ. 4 1709, 10; 2 Wood. 614. And judgment is
not to be given till they demand it.-Seld. Jud. 124. But they are not to be
present on impeachment when the Lords consider of the answer or proofs, and
determine of their judgment. Their presence, however, is necessary at the
answer and judgment in cases capital1b. 58, 159; as well as not capital, 162.
The Lords debate the judgment among themselves. Then the vote is first taken on
the question of guilty or not guilty; and if they convict, the question, or
particular sentence, is out of that which seemeth to be most generally agreed
on.-Seld. Jud. 167; 2 Wood.612.
Judgement.-Judgments in Parliament, for death, have been strictly guided per
legem terrae, which they cannot alter; and not at all according to their
discretion. They can neither admit any part of the legal judgment, nor add to
it. Their sentence must be secundum, non ultra legem.-Seld . Jud. 168, 169,
170, 171. This trial, though it varies in external ceremony, yet differs not in
essentials from criminal prosecutions before inferior courts. The same rules
of evidence, the same legal notions of crimes and punishments, prevail. For
impeachme nts were not framed to alter the law, but to carry it into more
effectual execution against too powerful delinquents. The judgment, therefore,
is to be such as is war-
VOL. II -- 29
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ranted by legal principles or precedents .-6 Stra. Tr. 14; 2 Wood. 611. The
Chancellor gives judgments in misdemeanors; the Lord High Steward, formerly, in
cases of life and death.-Seld . Jud. 180. But now the Steward is deemed not
necessary.-Fost. 144; 1 Woodd. 613. In misdemeanors, the greatest corporal
punishment hath been imprisonment.-Seld. Jud. 184. The King's assent is
necessary in capital judgments, (but 2 Woodd. 614. contra.) but not in
misdemeanors.-Seld. Jud. 136.
Continuance.-An impeachment is not discontinued by the dissolution of
Parliament; but may be resumed by the new Parliament.-T. Ray. 383; 5 Com.
Jour. 23 Dec., 1790; Lords' Jour. May 16,
1791; 2 Wood. 618.