Note.—The rules and practices peculiar to the Senate are printed between
brackets [ ]. Those of Parliament are not so distinguished.
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 often heard when he
was a young man, from old and experienced Members, that nothing
tended more to throw power into the hands of the administration, and
those who acted with the majority of the House of Commons, than a
neglect of, or departure from, the rules of proceeding: that these forms,
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 it 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.
LEGISLATIVE.
[All legislative powers herein granted shall be vested in a Congress
of the United States, which shall consist of a Senate and House of
Representatives. Constitution of the United States, Art. 1, Sec. 1.]
[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. Constitution of the United States, Art. 1, Sec. 6.]
[For the powers of Congress, see the following Articles and Sections
of the Constitution of the United States: I., 4, 7, 8, 9; II., 1,
2; III., 3; IV., 1, 3, 5, and all the amendments.]
PRIVILEGE.
The privileges of 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 example. We can only, therefore, state
the points of progression at which they now are. It is now acknowledged:
1st. 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, his1 wife, nor his servants,
(familaries sui,) for any matter of their own, may be2 arrested on
mesne process, in any civil suit: 3d. Nor be detained under execution,
though levied before time of privilege: 4th. Nor impleaded, cited, or
subpœnaed 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 the 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 Blackst., 163, 164.
[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 law shall bind equally on all, and especially that those who
make them shall not 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. 1, 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. 2, 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.3 2. The member arrested may be discharged on motion,
1 Bl. 166; 3 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 Commons, 1550,
February 20. 3. The arrest being unlawful, is a trespass for which
the officers and others concerned are liable to action and 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, moranda, 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 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 to which is punishable by an attachment of the person;
as a subpœna ad respondendum, or, testificandum, or a summons
on a jury; and with reason, because a member has superior duty to
perform in another place. [When a representative is withdrawn from
his seat by summons, the 40,000 people whom he represents lose their
voice in debate and vote, as they do on his voluntary absence; when
a senator is withdrawn by summons, his State loses half its voice in
debate and vote, as it does on 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 December, 1795, the House of Representatives
committed two persons of the name 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, 1796, the House of Representatives voted a challenge given
to a member of their House to be a breach of the privileges of the
House; but satisfactory apologies and acknowledgments being made,
no further proceeding was had. The editor of the Aurora having, in
his paper of February 19, 1800, inserted some paragraphs defamatory
of 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 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 tranquility 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 Legislatures 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 their 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
tumult 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 mean
time, 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 small disturbances; that in requiring a previous law, the Constitution
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 offense. But if one branch may assume its own
privileges without control; if it may do it on the 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 offense
is to be kept undefined, and to be declared only ex re nata, and according
to the passion 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 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 citizen 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 extent a member, except that he cannot vote
until he is sworn. Memor., 107, 108. D’Ewes, 642, col. 2; 643, 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. Lex. 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. 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. 3 Grey, 140, 222.
For any speech or debate in either House, they shall not be questioned
in any other place. Const. U. S., I, 6,; S. P. protest of the
Commons to James I., 1621; 2 Rapin, No. 54, pp. 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 contra morem parliamentarum,
to exceed the bounds and limits of his place and duty.
Com. p.
If an offense be committed by a member of 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. Lex. Parl., 63.
Privilege is in the power of the House, and is a restraint to proceedings
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 offenses 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, etc. Scob., 72; L.
Parl., c. 22.
It is a breach of order for the Speaker to refuse to put a question
which is in order. 2 Hats., 175-6; 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 privileged as to the mode of 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, etc., 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. Dec. of the Com. on the King’s declaring
Sir John Hotham a traitor. 4 Rushw., 586. So, when a member
stood indicted for 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. Ib., 256, 257, 258. But the communication
is subsequent to the arrest. 1 Blackst., 167.
It is highly expedient, says Hatsel, for the due preservation of the
privileges of the separate branches of the Legislature, that neither
should encroach on 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 which 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. Jud., 53. 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, 347; and in 1783,
December 17, it was declared a breach of fundamental privileges, etc.,
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.
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 places of choosing senators. Const. I., 4.]
[Each House shall be the judge of the elections, returns, and
qualifications of its own members. Const. I., 5.]
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 the State, any 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. Const. I., 3.]
[The House of Representatives shall be composed of members
chosen every second year by the people of the several States; and the
electors of each State 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 the 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.
Constitution of the United States, I., 2.]
The provisional apportionments of Representatives made in the
Constitution in 1787, and afterwards by Congress, were as follows:
| STATES. |
17874 |
17905 |
18006 |
18107 |
18208 |
18309 |
184010 |
185011 |
186012 |
187013 |
| 14Maine |
|
|
|
7 |
8 |
7 |
7 |
6 |
5 |
5 |
| New Hampshire |
3 |
4 |
5 |
6 |
6 |
5 |
4 |
3 |
3 |
3 |
| Massachusetts |
8 |
14 |
17 |
20 |
13 |
12 |
10 |
11 |
10 |
11 |
| Rhode Island |
1 |
2 |
2 |
2 |
2 |
2 |
2 |
2 |
2 |
2 |
| Connecticut |
5 |
7 |
7 |
7 |
6 |
6 |
4 |
4 |
4 |
4 |
| Vermont |
|
2 |
4 |
6 |
5 |
5 |
4 |
3 |
3 |
3 |
| New York |
6 |
10 |
17 |
27 |
34 |
40 |
34 |
33 |
31 |
33 |
| New Jersey |
4 |
5 |
6 |
6 |
6 |
6 |
5 |
4 |
5 |
7 |
| Pennsylvania |
8 |
13 |
18 |
23 |
26 |
28 |
34 |
25 |
24 |
27 |
| Delaware |
1 |
1 |
1 |
2 |
1 |
1 |
1 |
1 |
1 |
1 |
| Maryland |
6 |
8 |
9 |
9 |
9 |
8 |
6 |
6 |
5 |
6 |
| 15Virginia |
10 |
19 |
22 |
28 |
22 |
21 |
15 |
13 |
8 |
9 |
| North Carolina |
5 |
10 |
12 |
13 |
13 |
13 |
9 |
8 |
7 |
8 |
| South Carolina |
5 |
6 |
8 |
9 |
9 |
9 |
7 |
6 |
4 |
5 |
| Georgia |
3 |
2 |
4 |
6 |
7 |
9 |
18 |
8 |
7 |
9 |
| Kentucky |
|
2 |
6 |
10 |
12 |
13 |
10 |
10 |
9 |
10 |
| 16Tennessee |
|
|
3 |
6 |
9 |
13 |
11 |
10 |
8 |
10 |
| 17 Ohio |
|
|
|
6 |
14 |
19 |
21 |
21 |
19 |
20 |
| 18Louisiana |
|
|
|
|
3 |
3 |
4 |
4 |
5 |
6 |
| 19Indiana |
|
|
|
|
3 |
7 |
10 |
11 |
11 |
13 |
| 20Mississippi |
|
|
|
|
1 |
2 |
4 |
5 |
5 |
6 |
| 21Illinois |
|
|
|
|
1 |
3 |
7 |
9 |
14 |
19 |
| 22Alabama |
|
|
|
|
3 |
5 |
7 |
7 |
6 |
8 |
| 23Missouri |
|
|
|
|
|
2 |
5 |
7 |
9 |
13 |
| 24Michigan |
|
|
|
|
|
|
3 |
4 |
6 |
9 |
| 25Arkansas |
|
|
|
|
|
|
1 |
2 |
3 |
4 |
| 26Florida |
|
|
|
|
|
|
|
1 |
1 |
2 |
| 27Iowa |
|
|
|
|
|
|
|
2 |
6 |
9
|
| 28Texas |
|
|
|
|
|
|
|
2 |
4 |
6 |
| 29Wisconsin |
|
|
|
|
|
|
|
3 |
6 |
8 |
| 30California |
|
|
|
|
|
|
|
2 |
3 |
4 |
| 31Minnesota |
|
|
|
|
|
|
|
2 |
2 |
3 |
| 32Oregon |
|
|
|
|
|
|
|
1 |
1 |
1 |
| 33Kansas |
|
|
|
|
|
|
|
|
1 |
3 |
| 34West Virginia |
|
|
|
|
|
|
|
|
3 |
3 |
| 35Nevada |
|
|
|
|
|
|
|
|
1 |
1 |
| 36Nebraska |
|
|
|
|
|
|
|
|
1 |
1 |
| 37Colorado |
|
|
|
|
|
|
|
|
|
|
|
65 |
105 |
141 |
186 |
212 |
241 |
243 |
236 |
243 |
292 |
[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. Const. I, 6.]
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. I, 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.]
[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.]
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 a second time, and if still absent,
excuses are to be heard. Ord. House of Commons, 92.
They rise that their persons may be recognized; the voice in such
a crowd, being an insufficient verification of their presence. But in so
small a body as the Senate of the United States, the trouble of rising
cannot be necessary.
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-at-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 legal time of meeting, as to each day of the session, after the hour
is arrived to which the Senate stood adjourned. Rule 8.]
SPEAKER.
[The Vice-President of the United States shall be President of
the Senate, but shall have no vote unless they be equally divided. Constitution,
I, 3.]
[The Senate shall choose their 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. Ib.]
[The House of Representatives shall choose their Speaker and
other officers. Const., I, 2.]
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 fourteen
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.]
Where the Speaker has been ill, other Speakers pro tempore have
been appointed. Instances of this are 1 H., 4. Sir John Cheyney,
and for Sir Wm. Sturton, and in 15 H., 6. Sir John Tyrrell, in 1656,
January 27; 1658, March 9; 1659, January 13.
| Sir Job Charlton ill, Seymour chosen, 1673, February 18. |
Not merely pro tempore, 1 Chand., 169, 276, 277. |
| Seymour being ill, Sir Robert Sawyer chosen, 1678, April 15. |
| Sawyer being ill, Seymour chosen. |
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 E. Parl., 263.
A Speaker may be removed at the will of the House, and a
Speaker pro tempore appointed.38 2 Grey, 186; 5 Grey, 134.
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., II, 3.]
A joint address of 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 Chand.,
298, 301; or by such particular members as are of the privy council.
2 Hats., 278.
COMMITTEES.
Standing committees, as of privileges and elections, etc., 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., 11, 12; Scob., 9; 1
Grey, 122.
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 Grey, 412.
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 House; 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 instantly, and the members to attend
the service of the House. 2 Nals., 319.
It appears that on joint committees of the Lords and Commons,
each committee acted integrally in the following instances: 7 Grey,
261, 278, 285, 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, 321.39
COMMITTEE OF THE WHOLE.
The speech, message, 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, 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 into 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 danger 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, 128.
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 had time to go through the same, have directed
him to ask leave to sit again. Whereupon a question is put upon their
having leave, and on the time 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 “Monday,”
etc.; 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.
EXAMINATION OF WITNESSES.
Common fame is a good ground for the House to proceed by inquiry,
and even to accusation. Resolution House of Commons, 1 Car.,
1, 1624; Rush., L. Parl., 115; 1 Grey, 16-22, 92; Grey, 21, 23,
27, 45.
Witnesses are not to be produced but where the House has previously
instituted an inquiry (2 Hats., 102), nor then are orders for
their attendance given blank. 3 Grey, 51.
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.
Ib., 106, 107; 8 Grey, 64. The questions asked must be 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. Jour. H. of C.,
Jan. 22, 1744-45.
Either house may request, but not demand, 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 chooses 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. 10 Grey, 61.
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 the 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 the others having 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 on, 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 12 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 dispatched, 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.]
[The arrangement of the business of the Senate is now as follows:]
[1. Motions previously submitted.]
[2. Reports of Committees previously made.]
[3. Bills from the House of Representatives, and those introduced
on leave, which have been read the first time, are read the second time;
and if not referred to a committee, are considered in Committee of the
Whole, and proceeded with as in other cases.]
[4. After twelve o’clock, engrossed bills of the Senate, and bills
of the House of Representatives, on third reading, are put on their
passage.]
[5. If the above are finished before one o’clock, the general file
of bills, consisting of those reported from committees on the second
reading, and those reported from committees after having been referred,
are taken up in the order in which they were reported to the
Senate by the respective committees.]
[6. At one o’clock, if no business be pending, or if no motion be
called to proceed to other business, the special orders are called, at
the head of which stands the unfinished business of the preceding day.]
[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 gradatim 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.]
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., 141. But what is done only by one Parliament, cannot be
called custom of Parliament; by Prynne. 1 Grey, 52.
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 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,”
etc. 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. 200.
ORDER IN DEBATE.
When the Speaker is seated in his chair, every member is to sit
in his place. Scob., 6; 3 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. Scob., 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. 2 Hats., 75; 1 Grey, 143.
[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.]
When a member stands up to speak, no question is to be put, but
he is to be heard unless the House overrules 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 may speak more than once on 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. Co., 12, 115; Hakew., 148; Scob., 58; 2 Hats., 75. Even
a change of opinion does not give a right to be heard a second time.
Smyth’s 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 a clear matter of fact
(3 Grey, 357, 416); or merely to explain himself (2 Hats., 73) in some
material part of his speech (Ib. 75); or to the manner of words
of the question, keeping himself to that only, and not traveling 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 not falling
into the matter itself. Mem. Hakew., 30, 31.
But if the Speaker rise 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
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, 508.
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 other side of the question, etc. (Mem. in Hakew., 3;
Smyth’s Comw., L. 2, c. 3); nor to digress from the matter to fall
upon the person (Scob., 31; Hale Parl., 133; 2 Hats., 166) by speaking
reviling, nipping or unmanly words against a particular member.
Smyth’s Comw., L. 2, c. 3. The consequences of a measure may be
reprobated in strong terms; but to arraign the motives of those who
propose to advocate it, is a personality, and against order. Qui digreditur
a materia ad personam, Mr. Speaker ought to suppress. Ord.
Som., 1604, Apr. 19.
[* * * When a member shall be called to order by the President
or a Senator, he shall sit down, and shall not proceed without
leave of the Senate; and every question of order shall be decided by
the President, without debate, subject to an appeal to the Senate;
and the President may call for the sense of the Senate on any question
of order. Rule 6.]
[No member shall speak to another or otherwise interrupt the
business of the Senate, or read any newspaper 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, 640, col. 1) speaking
or whispering to another (Scob., 6; D’Ewes, 487, col. 1); nor stand
up to interrupt him (Town., col. 205; Mem. in Hakew., 31); nor to
push between the Speaker and the speaking member, nor to go across
the house (Scob., 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 that 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 his most prudent way to submit
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
offense committed, and the House considers the degree of punishment
they will inflict. 3 Hats., 167, 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, 382; 6 Grey, 254; 10 Grey, 8.
Whenever warm words or an assault have passed between members,
the House, for the protection of their members, requires them
to declare in their places not to prosecute any quarrel (3 Grey, 127,
293; 5 Grey, 280); or orders them to attend the Speaker, who is to
accommodate their differences, and 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 direct the clerk to
take them down in 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
intervenes, 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 the member be called to order
by a senator for words spoken, the exceptional words shall immediately
be taken down in writing, that the President may be better
enabled to judge of the matter.” Rule 7.]
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 withdraws. 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 him. 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 the debate,
then the charge 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
principle 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 another with his hat on, nor is to put on
his hat in coming in or removing, until he be set down in his place.
Scob., 6.
A question of order may be adjourned to give time to look into
precedents. 2 Hats., 118.
In Parliament all decisions of the Speaker may be controlled by
the House. 3 Grey, 319.
ORDERS OF THE HOUSE.
Of right, the doors of the House ought not to be shut, but to be
kept by porters, or sergeant-at-arms, assigned for that purpose. Mod.
Ten. Parl., 23.
[By the rules 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
doors shall remain shut. Rule 18.]
No motion shall be deemed in order to admit any person or persons
whatsoever, within the doors of the Senate chamber, to present any
petition, memorial or address, or to hear any such read. Rule 19.
[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 person 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 where there is not a quorum present. 2 Hats., 87, 129. How far
an order of the House is binding. See Hakew., 392.]
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. Raym., 120; Jacob’s L. D. by Ruffhead; Parliament,
1 Lev., 165, (Pritchard’s case.)
[Where the Constitution authorizes each House to determine the
rules 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 the journals, having
no relation to these, such as acceptances of invitations to attend
orations, to take part in processions, etc. These must be understood
to be merely conventional among those who are willing to participate
in the ceremony, and are, therefore, perhaps, improperly placed
among the records of the House.]
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 (Mar. 14, 1800) received by the
Senate. The averment of a member, or of somebody withoutdoors, 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 24.]
Regularly, a motion for receiving 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.
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 9.]
It is then, and not till then, in possession of the House, and cannot
be withdrawn but by leave 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, before the same shall
be debated. * * * Rule 10.]
It might be asked, whether a motion for adjournment or for the
orders of the day, can be made by any 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
breaches of order, which, though the member who has risen
may respect as an expression of impatience of the House against further
debate, yet, if he chooses, he has a right to go on.
RESOLUTIONS.
When the House commands, it is by an “order.” But facts, principles,
and 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 an appeal to the Senate (i. e., a call for their sense by the President,
on account of doubt in his mind, according to rule 26), the decision
was overruled, Jour. Sen., June 1, 1796. I presume the doubt
was, whether an allowance of money could be made otherwise than by
bill.]
BILLS.
[Every bill shall receive three readings previous to its being passed;
and the President shall give notice at each whether it be first, second
or third; which readings shall be on three different days, unless the
Senate unanimously direct otherwise. * * * Rule 26.]
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 25.]
When a member desires to bring in 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 of this committee,
and one or more in addition. Hakew., 122; Scob., 40.
It is to be presented fairly written, without any other erasure or
interlineation, or the Speaker may refuse it. Scob., 41; 1 Grey, 82, 84.
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 on 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.
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?]
BILLS—COMMITMENT.
If on motion and question it be decided that the bill shall be committed,
it may then be moved to be referred to 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 have a controlling power over the names and number, if
a question be moved against anyone; 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 will not amend it, (Hakew.,
146; Town., col. 208; D’Ewes, 634, col. 2; Scob., 47;) or, as it 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 to
its committee, he ought to ask to be excused. Thus (March 7, 1606)
Mr. Hadley was, on the question being put, excused from being of a
committee, declaring himself to be against the matter itself. Scob., 46.
[No bill shall be committed or amended until it shall have been
twice read; after which it may be referred to a committee. Rule 27.]
[In the appointment of the standing committees, the Senate will
proceed, by ballot, severally to appoint the Chairman of each committee;
and then, by one ballot, the other members necessary to complete
the same; and a majority of the whole number of votes given shall be
necessary to the choice of a chairman of a standing committee. All
other committees shall be appointed by ballot, and a plurality of votes
shall make a choice. When any subject or matter shall have been
referred to a committee, any other subject or matter of a similar
nature, may, on motion, be referred to such committee. Rule 34.]
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 a committee to withdraw
immediately into the Committee Chamber, and act on and bring back
the bill, sitting in the House. Scob., 48. A committee meet 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
sit below them. Elsynge, 12; Scob., 49.
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, etc., 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 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 insertion 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 alterations in
a former part. 2 Hats., 90. In numerous assemblies this restraint is
doubtless important. [But in the Senate of the United States, though
in the main we consider and amend the paragraphs in their natural
order, yet recurrences 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,
1800: 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 corresponding 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 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 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 purposes of amendment,
not permitting amendments in a subsequent to preclude those
in a prior part, or e 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 amendments, 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 which are to be inserted or omitted (Scob., 50), and where, by
references to the page, line, and word of the bill. Scob., 50.
REPORT OF COMMITTEE.
The chairman of the committee, standing in his place, informs
the House that the committee, to 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 amendment, with the coherence in the bill, and opens the alterations
and the reasons of the committee for such amendments, 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
its 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.
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
same committee. Hakew., 151. If a report be recommitted before
agreed to in the House, what has passed in 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. 2 Hats.,
131—note.
In Senate, January, 1800, 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.
BILL—REPORTS 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, 366; 6 Grey, 368; 8 Grey, 47, 104, 360;
1 Torbuck’s Deb., 125; 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 until the whole are adopted or rejected,
before any other amendment be admitted, except it be an
amendment to an amendment. Elsynge’s Mem., 53. When through
the amendments 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 questions but on amendments proposed; and when through the
whole, he puts the question whether the bill be read the third time.
QUASI-COMMITTEE.
If on motion and question the bill be not committed, or if no
proposition for commitment be made, then the proceedings in the
Senate of the United States and in Parliament are totally different.
The former shall be first stated.
[The 28th 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 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.) And when the Senate shall consider a treaty,
bill, or resolution, as in Committee of the Whole, the Vice-President
or President pro tempore may call a member to fill the chair during
the time the Senate shall remain in Committee of the Whole; and
the chairman (so called) shall, during such time, have the powers of
a President pro tempore.]
[The proceedings of the Senate, as in a Committee of the Whole,
or in Quasi-Committee, 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 resumes
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 their consideration the bill entitled, etc., 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 the 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 amendments to the body of the bill, and when
through, puts the question whether it shall be read a third time.]
[After progress in amending the 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 falls, the Quasi-Committee
stands in statu quo.]
[How far does this 28th rule subject the House, when in Quasi-Committee,
to the laws which regulate the proceedings of Committees
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
discussions 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 first and second 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 28th rule meant to subject them; for it continues
to be a House, and therefore, though it acts in some respects as
a committee, in others it preserves its character as House. Thus:
3. It is in the daily habit of referring its business to a special committee.
4. It admits of the previous question; if it did not, it would
have no means of preventing an improper discussion, not being able,
as a committee is, to avoid it by returning into the House, for the moment
it would resume the same subject there, the 28th rule declares it
again a Quasi-Committee. 5. It would doubtless exercise its powers
as a house on any breach of order. 6. It takes a question by yea and
nay, as the House does. 7. It receives messages from the President
and the other House. 8. In the midst of a debate it receives a motion
to adjourn, and adjourns as a house, not a committee.]
BILLS—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 question but on amendments proposed;
and when through the whole, he puts the question whether it shall be
read a third time? if it come 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 questions. The
clerk stands while he reads.
[40But 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 amendments
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 earlier 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 will have sufficient opportunities of giving it their veto. Its
last two 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.
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. 2 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, or have
it read, on suggesting that it contains matter infringing on the privileges
of the House. Ib.
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.
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, 226.
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. Feb. 28, 1793.
Formerly when papers were referred to a committee, they used to
be first read; but of late only the titles, unless a number insist that
they shall be read, and then nobody can oppose it. 2 Hats., 117.
PRIVILEGED QUESTIONS.
[41 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. Lex. Parl., 273; Elsynge’s
Mem., 85; Ord. House of 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.
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 after 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 member moves,
therefore, for the Order 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 defeat
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), for 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. 3. To adjourn a
question 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 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
abusedly 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 to reserve in their power to take up a
proposition whenever it shall suit them, they order it to lie on the
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 PARLIAMENT: |
THE SENATE USES: |
| Postponement indefinite, |
Postponement to a day beyond the session, |
| Adjournment, |
Postponement to a day within the session, |
| Lying on the table. |
Postponement indefinite, |
| Lying on the table. |
In their eighth rule, therefore, which declares that while the question
is before 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 the parliamentary sense. Their rule
then establishes as privileged questions, the previous questions, postponement,
commitment and amendment.
But it may be asked, Have these questions any privileges among
themselves? or are they so equal that the common principle of the
“first moved first put” takes place among them? This will need
explanation. Their competitions may be as follows:
| 1. Previous question and |
postpone |
In the first, second and
third classes, and the
first member of the
fourth class the rule
“first moved first put”
takes place. |
|
|
commit |
|
amend |
| 2. Postpone and previous |
question |
|
commit |
|
amend |
| 3. Commit and previous |
question |
|
|
postpone |
|
|
amend |
|
| 4. Amend and previous |
question |
|
|
postpone |
|
|
commit |
|
In the first 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.
Second class. If postponement be decided affirmatively, the
proposition is removed from before the House, and consequently there
is no ground for the 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 third class is subject to the same observations as the second.
The fourth class. Amendment 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 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 privilege between themselves, when
both are 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 a 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 its original, if at all, because the eighth rule of 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 also; 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 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 first, second and third 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 ninth rule of the Senate, has fixed its
form to be, “Shall the 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 to-morrow, 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 an indefinite time. The useful character of amendment
gives it a privilege of attaching itself to a secondary and 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 instructions to inquire,” etc. 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 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 wished to be amended. In
this form it becomes only an amendment to an amendment.
[When motions are made for reference of the same subject to a
select committee and to a standing committee, the question on reference
to the standing committee shall be first put. Rule 36.]
[In filling a blank with a sum, the largest sum shall be first put to
the question, by the thirteenth rule of the Senate,42] contrary to the
rule of Parliament, which privileges the smallest sum and longest time.
5 Grey, 179; 2 Hats., 8, 83; 3 Hats., 132, 133. And this is considered
to be not in the form of an amendment to the question, 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 maximo. Or whether the lesser includes the greater, as
in questions 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 he should vote in the affirmative,
every question for more would be precluded; but at that extreme
which would unite few, and then to advance or recede till you get 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.” Grey, 355.
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, supercedes the consideration
of the original question, and must be first 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 the 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.
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., 28; 4
Grey, 27.
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.
This kind of question is understood by Mr. Hatsell to have been
introduced in 1604. 1 Hats., 80. Sir Henry Vane introduced it. 2
Grey, 113, 114; 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.
The proper occasion for the previous question, is when a question
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 has been 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 Hats., 88, says, if
the previous question has 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 is
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 just been suppressed, and therefore may be proposed
as a new one. But this proceeding certainly endangers the main question,
by dividing 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 manœuvre 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 circumstances,
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 maybe 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
amendments, 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 unamended; 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 for public discussion, and ought not to be obstructed by a
formality introduced for questions of a peculiar character.
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.
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 it was intended by the movers,
so that they vote against it themselves. 2 Hats., 79, 4, 82, 84. A
new bill may be engrafted by way of amendment, on the words, “Be
it enacted,” etc. 1 Grey, 190, 192.
If it be proposed to amend by leaving out certain words, it may
be moved, as an amendment to this amendment, to leave out 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 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.43
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 be first put on the longest time; therefore, after a shorter time
decided against, a longer cannot be put to question. It was answered
that this rule takes place only in filling blanks for time. But when a
specific time stands part of motion, that may be struck out as well as
any other part of a motion; and when struck out, a motion may be
received to insert any other. In fact, it is not until 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 question 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 had been
made 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 the first 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 effect it—the motion being divided
as well as the question.
When the matter contained in two bills might better be 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 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.
DIVISION OF THE QUESTION.
If a question contain more parts than one, it may be divided into
two or more questions. Mem. in Hakew., 39. 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, December 2, 1640, making void the election of the knights
for 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 question, they may be divided and put one by
one. 9 Grey, 444. So, 1729, April 17, on an objection that a question
was complicated, it was separated by amendment. 2 Hats., 79.
The soundness of these observations will be evident from the
embarrassments produced by the 12th 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
or the section and the proviso, they cannot be divided so as to put the
last member to question by itself; for the provisos might then 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 without
an enacting clause does not contain an entire point or proposition.
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 a 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 that each part may stand by itself, yet the
House having, on the question, retained the two first 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 of the
question, both affirmative and negative, remains still to be put. See
Execut. Jour., June 25, 1795. The same decision by President
Adams.
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, 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.
EQUIVALENT.
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 further
question. 4 Grey, 149. And see Elsynge’s Mem., 42, in what
cases 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. Does there result from this a vote of disagreement,
or must the question on disagreement be expressly voted?
The questions respecting amendments from another house are—1st, to
agree; 2d, to disagree; 3d, recede; 4th, insist; 5th, adhere.
1st. To agree.
2nd. To disagree.
Either of these concludes the 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 amendments may be proposed: e. g.,
if it be moved to disagree, those who are
for the amendment have a right to propose
amendments, 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 adhere.
4th. To insist.
You may then either recede or adhere.
5th. To 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 inference to enter another vote; for
two alternatives still remain, either of
which may be adopted by the House.
THE QUESTION.
The question is to be first put 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 to 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; 2 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; 5 Grey, 129; 9 Grey,
301.
BILLS—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; because this would be to pass on
two readings in 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 “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
has been sometimes suffered, but as a thing very unusual. Hakew.,
126. Thus, 27 El., 1584, a bill was committed on the third reading,
having been formally committed on the second, but it is declared not
usual. D’Ewes, 337, col. 2; 414, col. 2.
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 interlineations.
Sometimes a 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. The former vote has tried the strength of the
former 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 of
you who are of opinion that this bill shall pass, say aye;” and after the
answer of the ayes, “All those of the contrary opinion, say no.”
Hakew., 154.
After the bill is passed, there can be no further alteration of it in
any point. Hakew., 159.
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., 24; 2 Hats., 140.
When the House of Commons is divided, the one party goes forth,
and the other remains in the House. 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 modifications.
2 Hats., 134; 1 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 received44 |
Ayes. |
|
| Read |
| Lie on the table |
Noes. |
|
| Rejected after refusal to lie on the table |
| Referred to committee for further proceeding |
Ayes. |
|
| Bill, that it be brought in |
Ayes. |
|
| Read first or second time |
| Engrossed or read a third time |
| Proceedings on every other stage |
| Committed
|
| To committee of the whole |
Noes. |
|
| To select committee |
Ayes. |
|
| Report of bill to lie on table |
Noes. |
|
| Be now read |
Ayes.
30, P. J. |
|
| Be taken into consideration three months hence |
251 |
| Amendments to be read a second time |
Noes. |
|
| Clause offered on report of bill be read a second time |
Ayes. |
|
| For receiving a clause |
334 |
| With amendments be engrossed |
395 |
| That a bill be now read a third time |
Noes. |
398 |
| Receive a rider |
Ayes. |
260
259 |
| Pass |
| Be printed |
| Committees. That A take the chair |
Noes. |
291 |
| To agree to the whole or any part of report |
| That the House do now resolve into committee |
| Speaker. That he now leave the chair, after order to go into committee |
| That he issue warrant for new writ |
| Member. That none be absent without leave |
| Witness. That he be further examined |
Ayes. |
344 |
| Previous question |
Noes. |
|
| Blanks. That they be filled with the largest sum |
Ayes. |
|
| Amendments. That words stand part of |
| Lords. That their amendment be read a second time |
Noes. |
|
| Messenger be received |
Ayes. |
|
| Orders of day be now read, if before 2 o’clock |
| If after 2 o’clock |
Noes. |
|
| Adjournment. Till the next sitting day, if before 4 o’clock |
Ayes. |
|
| If after 4 o’clock |
Noes. |
|
| Over a sitting day (unless a previous resolution) |
Ayes. |
|
| Over the 30th of January |
Noes. |
|
| For sitting on Sunday, or any other day not being a sitting day |
Ayes. |
|
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.
[But in both Houses of Congress all these 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 are 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 reconsidering a bill disapproved by the President,
and returned with his objections, “the votes of both Houses shall be
determined by 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 16th and 17th rules 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 the yeas and nays shall be taken upon any question in pursuance
of the above rule, no member shall be permitted, under any
circumstances whatever, to vote after the decision is announced from
the chair.]
[When it is proposed to take the vote by yeas and nays, the
President or Speaker stales 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 the 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 the Senate, if there be an equal division, the Secretary calls on the
Vice-President and 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.
This last position is always true when the vote is by yeas and nays;
where the negative as well as 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
be greatly deferred. And as some who have answered aye 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 a 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 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., I, 3.]
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
Elis., who in like case changed his opinion. Mem. Hakew., 27.
TITLES.
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.
RECONSIDERATION.
[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 reconsideration thereof; but no motion for the reconsideration of
any vote shall be in order after a bill, resolution, message, report,
amendment, or motion upon which the vote was taken shall have gone
out of the possession of the Senate announcing their decision; nor
shall any motion for reconsideration be in order unless made on the
same day on which the vote was taken, or within the two next days of
the actual session of the Senate thereafter. Rule 20.]
[1798, January. 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 reconsider that question. Here the votes of
negative and reconsideration, like positive and negative quantities in an
equation, destroy one another, and are as if they were expunged from
the journal. 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,
it may be recommitted.]
[45The rule permitting a reconsideration 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 is
passed has been parted with, there can be no reconsideration; 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
reconsideration? This remains to be settled; unless, a sense that the
right of reconsideration 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.
Towns. col., 67.; Mem. 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 question in different stages of a bill; because
every stage of a bill submits the whole and every 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 committee, may be discharged. So a bill, begun in
one house, and 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, or
amend it, and put it off a month, they may order 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, etc., or to rectify mistakes in act, etc., 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 supply.
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. 3 Hats.,
94, 98. Or a part of the subject may be taken up by another bill, or
taken up in a different way. 6 Grey, 304, 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 some words not in the first, and which might
change the opinion of some members, was brought on again and carried,
as the motives for it were thought to outweigh the objection of
form. 2 Hats., 99, 100.
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.
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 a committee, consisting of
three members, whose duty shall be to examine all bills, amendments,
resolutions, or motions, before they go out of the possession of the
Senate, and to make report that they are correctly engrossed; which
report shall be entered on the journal. Rule 33.]
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 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.
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 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
transactions between the houses would become 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
houses to concurrence. Either house, however, is free to pass over
the term of insisting, and to adhere in the first instance (10 Grey, 146);
but it is not respectful to the other. In the ordinary parliamentary
course, there are two free conferences, at least before an 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, 363; 10 Grey, 240. In
the 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 infringing on their privileges 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
resolved that it was unparliamentary to strike out, at a conference,
anything in a bill which had 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 2d and not the 3d 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
1st degree, and the amendment to that again by the amending House
is only in the 2d, to wit: an amendment to an amendment, and so
admissible. Just so, when, on a bill from the originating 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 2d degree.
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 with the House which is possessed of the papers. 3 Hats., 31; 1
Grey, 425.
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. 4 Grey, 144.
The other House, then, if satisfied, vote the reason satisfactory, 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 jurisdiction of each
House to the nation at large, and to posterity, and in proof that the
miscarriage of a necessary measure is not 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. 9 Grey, 220; 3 Hats., 280. This report cannot be
amended or altered, as that of a committee may be. Journal of
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, 137. 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., 269), and we do in fact see inferences of conferences,
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, etc., 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. Ib., 317, 323, 354; 10
Grey, 146.
After a free conference, the usage is to proceed with free conferences,
and not 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 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, 177. 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 understanding thereon. 10 Grey, 148. So when an unparliamentary
message has been sent, instead of answering it, they ask a
conference. 3 Grey, 155. Formerly an address or article 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. 6 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 the modern practice. 8 Grey, 255.
A conference has been asked after the first reading of the bill.
1 Grey, 194. This is a singular instance.
MESSAGES.
Messages between the Houses are to be sent only while both
Houses are sitting. 3 Hats., 15. They are received during 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 counting. Rule 47. The first
case is short; the second and third are cases where any interruption
might occasion errors difficult to be corrected. So arranged June 15,
1788.]
In the House of Representatives, as in Parliament, if the House
be in committee when a messenger attends, the Speaker takes the chair
to receive the message, and then quits it to return into committee,
without any question or interruption. 4 Grey, 226.
Messengers are not saluted by the members, but by the Speaker
of the House. 2 Grey, 253, 274.
If messengers commit an error in delivering their message, they
may be admitted or called in to correct their message. 4 Grey, 41.
Accordingly, March 13, 1800, 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
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 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.
Hakew., 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 altercations. 1 Blackst., 183.
[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 communication 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 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.
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. 2 Hats.,
142. Were the bill to be withheld from being presented to the King,
it would be an infringement of the rules of Parliament. Ib.
[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 Enrollment, 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 between the
paragraphs may not give room for forgery. Grey, 143. [It is then
put into the hands of the clerk of the House of Representatives to
have it 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 Enrollment, who
present it to the President of the United States. If he approve, 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 that 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 that 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 the 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
its adjournment, prevent its return; in which case it shall not be a
law. Const. U. S., I, 7.]
[Every order, resolution, or vote, to which the concurrence of the
Senate and 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 repassed 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., I, 7.]
JOURNALS.
[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.]
[The proceedings of the Senate, when not acting as in a Committee
of the Whole, shall be entered on the journals as concisely as
possible, care being taken to detail a true account of the proceedings.
Every vote of the Senate shall be entered on the journals, and a brief
statement of the contents of each petition, memorial, or paper presented
to the Senate, be also inserted on the journal. Rule 33.]
[The titles of bills, and such parts thereof only, as shall be affected
by proposed amendments, shall be inserted on the journals. Rule 32.]
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 laying it 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. Const.,
I, 5.]
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 only remembrances. But this is not
law. Hob., 110, 111; Lex. Parl., 114, 115; Journal 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 Parl., 6 H. 8, c. 16; 4 Inst., 23, 24; and every member of the
House of Commons hath 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., 361; 3 Hats.,
27-30. Every member has a right to see the journals, and 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.
ADJOURNMENT.
The two Houses of Parliament have the sole, separate and independent
power of adjourning each their respective Houses. The King
has no 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. I, 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.” I, 5. And in case of disagreement
between them, with respect to the time of adjournment,
the President 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 day, 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, etc.,
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.
A SESSION.
Parliament have three modes of separation, to wit: By adjournment,
by prorogation or 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 Blackst., 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; Hutt., 61; 1 Mod., 252; Ruffh. Jac. L. Dict. Parliament;
1 Blackst., 186. Their whole session is considered in law but as one
day, and has relation to the first day thereof. Bro. Abr. 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. 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 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.” (I, 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.” I, 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 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
Speaker of the House of Representatives 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. Raym., 120, 381; Ruffh. Jack.
L. D. Parliament.
[Impeachments stand, in like manner, continued before the Senate
of the United States.]
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., II, 2.]
[All confidential communications made by the President of the
United States to the Senate, shall be by the members thereof kept
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 secrecy. Rule 39.]
Treaties are legislative acts. A treaty is the 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. Hayton, 3 Dallas’ Rep., 223.
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 treaty. 4 Russel’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 the Senate having a negative. To what
subjects 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 alios acta. 2. By the general
power to make treaties, the Constitution must have intended to comprehend
only those subjects which are usually regulated by treaty, and
cannot be otherwise regulated. 3. It must have meant to except out
of these 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 exception 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 in 1798.
[It has been the usage for the Executive, when it communicates
a treaty to the Senate for their ratification, to communicate also the
correspondence of the negotiators. This having been omitted in case
of the Prussian treaty, was asked by a vote of the House, of February
12, 1800, and was obtained. And in December, 1800, the convention
of that year between the United States and France, with the
report of the negotiations by the envoys, but not their instructions,
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.]
[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. 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 by
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 requisite
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.]
[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 37.]
[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 37.]
IMPEACHMENT.
[The House of Representatives shall have the sole power of impeachment.
Const. U. S., I, 3.]
[The Senate shall have the sole power to try all impeachments.
When sitting for that purpose, they shall be on oath or affirmation.
When 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., I, 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., II, 4.]
[The trial of crimes, except in cases of impeachment, shall be by
jury. Const., III, 2.]
These are the provisions of the Constitution of the United States
on the subject of impeachments. The following is a sketch of some
of the principles and practices of England on the same subject:
Jurisdiction. The Lords cannot impeach any to themselves, nor
join in the accusation, because they are the judges. Seld. Judic. in
Parl., 12, 63. Nor can they proceed against a commoner but on complaint
of the Commons. Ib., 84. The Lords may not, by the law,
try a commoner for a capital offense, on the information of the King
or a private person, because the accused is entitled to a trial by his
peers generally; but on accusation by the House of Commons, they
may proceed against the delinquent, of whatsoever degree, and whatsoever
be the nature of the offense; 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. Ib.
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 for high treason, where the Lords remitted
the prosecution to the inferior court. 8 Grey’s Deb., 325-7;
Wooddeson, 601, 576; 3 Seld., 1610, 1619, 1641; 4 Blackst., 25; 73
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 from
his appearance. Sachev. Trial, 325; Woodd., 602, 605; Lords’ Jour.
3 June, 1701, 101; 1 Wms., 616; 6 Grey, 324.
Process. If a party do not appear, proclamations are to be issued,
giving him a day to appear. 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 (articles) of the Commons is substituted
in place of an indictment. Thus, by the usage of Parliament, in
impeachment for writing or speaking, the particular words need not
be specified. Sach. Tr., 325; 2 Woodd., 602, 605; Lords’ Jour., 3
June, 1701; 1 Wms., 616.
Appearance. If he appears, and the case be capital, he answers
in custody; though not if the accusations 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 finds 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. Seld. Jud., 100. 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. Ib., 101. If previously committed by the Commons,
he answers as a prisoner. But this may be called in some sort judicium
parium snorum. Ib. In misdemeanors the party has a right to counsel
by the common law; but not in capital cases. Seld. Jud., 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., 274; 1 Rush., 1374; 12 Parl. Hist.,
442; 3 Lords’ Journ., 13 Nov., 1643; Woodd., 607. But he cannot
plead a pardon in bar to the impeachment. 2 Woodd., 615; 2 St.
Tr., 735.
Replication, rejoinder, etc. There may be a replication, rejoinder,
etc. Seld. Jud., 114; 8 Grey’s Deb., 233; Sach. Tr., 15; Journ.
H. of Commons, 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. Seld.
Jud., 120, 123.
Jury. In the case of Alice Pierce, 1 R. 2, a jury was impanneled
for her trial before a committee. Seld. Jud., 123. But this was on
a complaint, not on 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. Id., 148. The judgment was a forfeiture of all her lands
and goods. Id., 188. This, Seldon says, is the only jury he finds recorded
in Parliament for misdemeanor; but he makes no doubt, if the
delinquent doth put himself on trial of his country, a jury ought to
be impanneled, and he adds that it is not so on impeachment by the
commons; for they are in loco proprio, and there no jury ought to be
impanneled. Id. 124. The Ld. Berkely (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 Gloucestershire
and Warwickshire. Id., 125. In 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. Seld. Jud., 133. They have been generally and more
justly considered, as is before stated, as the grand jury; for the conceit
of Seldom is certainly not accurate, and 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 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 Feb., 1709-10; 2 Woodd., 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 of proofs and determine of their judgment. Their presence,
however, is necessary at the answer and judgment in cases capital
(Id., 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 Woodd., 612.
Judgment. Judgments in Parliament, for death, have been
strictly guided per legem terræ, which they cannot alter; and not at
all according to their discretion. They can neither omit any legal part
of the judgment nor add to it. Their sentence must be secundum,
non ultra legem. Seld. Jud., 168-171. 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, prevailed; for impeachments
are 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 warranted by legal principles or precedents. 6 Sta.
Tr., 14; 2 Woodd., 611. The Chancellor gives judgment 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; 2 Woodd., 613. In misdemeanors the greatest corporal punishment
hath been imprisonment. Seld. Jud., 184. The King’s assent
is necessary in capital judgments (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; 4 Com. Journ., 23 Dec., 1790; Lords’ Journ., May 15,
1791; 2 Woodd., 618.
