A MANUAL OF PARLIAMENTARY PRACTICE:
for the Use of the Senate of the United States.
BY THOMAS JEFFERSON.
SECOND EDITION. WITH THE LAST ADDITIONS OF THE AUTHOR
PUBLISHED BY JOSEPH MILLIGAN; AND BY WILLIAM COOPER, WASHINGTON.
by Wilbur Samuel Howell
Published without copyright by Princeton University Press
TABLE OF CONTENTS.
- Rules, importance of.
- Call of the House.
- Committee of the whole.
- Examination before Committees, &c.
- Arrangement of business.
- Respecting papers.
- In debate.
- Orders of the House.
- Bills, Readings.
- Leave to bring in.
- First reading.
- Second reading.
- Report of Committee.
- Report taken up.
- Quasi Committee.
- Second reading in the House.
- Reading papers.
- Privileged questions.
- Previous question.
- Division of question.
- Co-existing questions.
- Bills, Equivalent questions.
- The Question.
- Third reading.
- Division of the House.
- Bills sent to the other House.
- Amendments between the Houses.
THE Constitution of the United
States establishing a legislature for the Union, under certain forms,
authorises each branch of it "to determine the rules of its own
proceedings." The Senate have accordingly formed some rules for its own
government: but these going only to few cases, they have referred to the
decision of their President, without debate and without appeal, all questions
of order arising either under their own rules, or where they have provided
none. This places under the discretion of the President a very extensive field
of decision, and one which, irregularly exercised, would have a powerful effect
on the proceedings and determinations of the House. The President must feel
weightily and seriously this confidence in his discretion; and the necessity of
recurring, for its government, to some known system of rules, that he may
neither leave himself free to indulge caprice or passion, nor open to the
imputation of them. But to what system of rules is he to recur, as
supplementary to those of the Senate? To this there can be but one answer; to
the system of regulations adopted for the government of some one of the
Parliamentary bodies within these states, or of that which has served as a
prototype to most of them. This last is the model which we have all studied,
while we are little acquainted with the modifications of it in our several
states. It is deposited too in publications possessed by many and open to all.
Its rules are probably as wisely constructed for governing the debates of a
deliberative body, and obtaining its true sense, as any which can become known
to us; and the acquiescence of the Senate, hitherto, under the references to
them, has given them the sanction of their approbation.
Considering therefore the law of proceedings in the Senate as composed of
the precepts of the Constitution, the regulations of the Senate, and, where
these are silent, of the rules of Parliament, I have here endeavored to collect
and digest so much of these as is called for in ordinary practice, collating
the Parliamentary with the Senatorial rules, both where they agree and where
they vary. I have done this, as well to have them at hand for my own
government, as to deposit with the Senate the standard by which I judge and am
willing to be judged. I could not doubt the necessity of quoting the sources of
my information; among which Mr. Hatsell's most valuable book is preeminent; but
as he has only treated some general heads, I have been obliged to recur to
other authorities in support of a number of common rules of practice to which
his plan did not descend. Sometimes each authority cited supports the whole
passage. Sometimes it rests on all taken together. Sometimes the authority goes
only to a part of the text, the residue being inferred from known rules and
principles. For some of the most familiar forms, no written authority is, or
can be quoted; no writer having supposed it necessary to repeat what all were
presumed to know. The statement of these must rest on their notoriety.
I am aware that authorities can often be produced in opposition to the rules
which I lay down as Parliamentary. An attention to dates will generally remove
their weight. The proceedings of Parliament in antient times, and for a long
while, were crude, multiform and embarrassing. They have been, however,
constantly advancing towards uniformity and accuracy; and have now attained a
degree of aptitude to their object, beyond which, little is to be desired or
Yet I am far from the presumption of believing that I may not have mistaken
the Parliamentary practice in some cases; and especially in those minor forms,
which, being practised daily, are supposed known to every body, and therefore
have not been committed to writing. Our resources, in this quarter of the
globe, for obtaining information on that part of the subject, are not perfect.
But I have begun a sketch, which those who come after me will successively
correct and fill up, till a code of rules shall be formed for the use of the
Senate, the effects of which may be, accuracy in business, economy of time,
order, uniformity, and impartiality.
NOTE. The rules and practices peculiar to the Senate are
printed in Italic. Those of Parliament are in the Roman letter.
IMPORTANCE OF RULES.
THE IMPORTANCE OF ADHERING TO RULES.
MR. ONSLOW, the ablest among
the Speakers of the House of Commons, used to say, 'it was a maxim he had often
heard, when he was a young man, from old and experienced members, that nothing
tended more to throw power into the hands of administration and those who acted
with the majority of 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 controul on the actions of the majority; and
that they were in many instances, a shelter and protection to the minority,
against the attempts of power.' So far the maxim is certainly true, and is
founded in good sense, that as it is always in the power of the majority, by
their numbers, to stop any improper measures proposed on the part of their
opponents, the only weapons by which the minority can defend themselves against
similar attempts from those in power, are the forms and rules of proceeding
which have been adopted as they were found necessary from time to time, and are
become the law of the House; by a strict adherence to which, the weaker party
can only be protected from those irregularities and abuses which these forms
were intended to check, and which the wantonness of power is but too often apt
to suggest to large and successful majorities. 2 Hats. 171, 172.
And whether these forms be in all cases the most rational or not, is really
not of so great importance. It is much more material that there should be a
rule to go by, than what that rule is; that there may be an uniformity of
proceeding in business, not subject to the caprice of the Speaker, or
captiousness of the members. It is very material that order, decency and
regularity, be preserved in a dignified public body. 2 Hats. 149.
And in 1698 the Lords say, "the reasonableness of what is desired is
never considered by us, for we are bound to consider nothing but what is usual.
Matters of form are essential to government, and 'tis of consequence to be in
the right. All the reason for forms is custom, and the law of forms is
practice; and reason is quite out of doors. Some particular customs may not be
grounded on reason, and no good account can be given of them; and yet many
nations are zealous for them; and Englishmen are as zealous as any others to
pursue their old forms and methods." 4 Hats. 258.
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.
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.
THE privileges of the members
of Parliament, from small and obscure beginnings, have been advancing for
centuries, with a firm and never yielding pace. Claims seem to have been
brought forward from time to time, and repeated, till some example of their
admission enabled them to build law on that example. We can only therefore
state the point of progression at which they now are. It is now acknowledged,
1. That they are at all times exempted from question elsewhere for any thing
said in their own house; that during the time of privilege, 2. Neither a member
himself,1 his wife, or his servants,
(familiares sui) for any matter of their own, may be arrested,2 on mesne process, in any civil suit: 3. Nor be
detained under execution, though levied before time of privilege: 4. Nor
impleaded, cited, or subpoenaed in any court: 5. Nor summoned as a witness or
juror: 6. Nor may their lands or goods be distrained: 7. 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 laws
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. 2. Stra. 990, or by Habeas Corpus
under the federal or state authority, as the case may be; or by a writ of
privilege out of the Chancery, 2 Stra. 989, in those states which have
adopted that part of the laws of England. Orders of the H. of Commons.
1550. February 20. 3. The arrest, being unlawful, is a trespass, for which
the officer and others concerned are liable to action or indictment in the
ordinary courts of justice, as in other cases of unauthorised arrest. 4. The
court before which the process is returnable, is bound to act as in other cases
of unauthorised proceeding, and liable also, as in other similar cases, to have
their proceedings staid or corrected by the superior courts.
The time necessary for going to and returning from Congress, not being
defined, it will of course be judged of in every particular case by those who
will have to decide the case.
While privilege was understood in England to extend, as it does here, only
to exemption from arrest eundo, morando, et redeundo, the House of Commons
themselves decided that "a convenient time was to be understood."
(1580.) 1. Hats. 99, 100. Nor is the law so strict in point of time as
to require the party to set out immediately on his return, but allows him time
to settle his private affairs and to prepare for 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
subpoena ad respondendum, or testificandum, or a summons on a jury: and with
reason; because a member has superior duties to perform in another place.
When a representative is withdrawn from his seat by summons, the 50,
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 H. of R. 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 H. of R. 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 tranquillity is to be perpetually disturbed by
newspaper defamation, it will not be possible to exercise our functions with
the requisite coolness and deliberation; and that we must therefore have a
power to punish these disturbers of our peace and proceedings. To this it was
answered, that the Parliament and courts of England have cognisance 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 authorises 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 serjeant, 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 offence. But if one branch may
assume its own privileges without controul, 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 offence is
to be kept undefined, and to be declared only ex re nata, and according to the
passions of the moment, and there be no limitation either in the manner or
measure of the punishment, the condition of the citizen will be perilous
indeed. Which of these doctrines is to prevail, time will decide. Where there
is no fixed law, the judgment on any particular case is the law of that single
case only, and dies with it. When a new and even a similar case arises, the
judgment which is to make, and at the same time apply the law, is open to
question and consideration, as are all new laws. Perhaps, Congress, in the mean
time, 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
Privilege from arrest takes place by force of the election; and before a
return be made, a member elected may be named of a committee, and is to every
intent a member, except that he cannot vote until he is sworn. Memor.
107, 108. Dewes 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 serjeant. 1. Grey, 88, 95.
The privilege of a member is the privilege of the House. If the member waive
it without leave, it is a ground for punishing him, but cannot in effect waive
the privilege of the House. 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. pa. 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
parliamentarium; to exceed the bounds and limits of his place and duty. Com.
If an offence be committed by a member in the House, of which the House
has cognisance, 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 the proceeding
of inferior courts; but not of the House itself. 2. Nalson 450.
2. Grey, 399. For whatever is spoken in the House is subject to the
censure of the House; and offences of this kind have been severely punished, by
calling the person to the bar to make submission, committing him to the tower,
expelling the House, &c. Scob. 72. 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 pretences of treason, &c. to take any man
from his service in the House, and so as many, one after another, as would make
the House what he pleaseth. Decl. of the Com. on the king's declaring Sir
John Hotham a traitor. 4. Rushw. 586. So when a member stood
indicted of felony, it was adjudged that he ought to remain of the House till
conviction. For it may be any man's case, who is guiltless, to be accused and
indicted of felony, or the like crime. 23. El. 1580. D'Ewes. 283.
col. 1. Lex. Parl. 133.
When it is found necessary for the public service to put a member under
arrest, or when, on any public enquiry, 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.
It is highly expedient, says Hatsell, for the due preservation of the
privileges of the separate branches of the legislature, that neither should
encroach on 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, 743. and in 1783, December 17, it was
declared a breach of fundamental privileges, &c. to report any opinion or
pretended opinion of the king on any bill or proceeding depending in either
House of Parliament, with a view to influence the votes of the members. 2.
Hats. 251, 6.
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 chusing Senators. Constitution I. 4.
Each House shall be the judge of the elections, returns, and
qualifications of its own members. Constitution I. 5.
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 1st class shall be vacated at the end of the 2d
year; of the 2d class at the expiration of the 4th year; and of the 3d class at
the expiration of the 6th year; so that one third may be chosen every second
year; and if vacancies happen by resignation or otherwise, during the recess of
the legislature of any state, the executive thereof may make temporary
appointments, until the next meeting of the legislature, which shall then fill
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. Constitution 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 in 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 including
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 often years, in such manner as
they shall be 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:
| New Hampshire,
| Rhode Island,
| N. Carolina,
| S. Carolina,
When vacancies happen in the representation from any state, the executive
authority thereof shall issue writs of election to fill such vacancies.
Constitution I. 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.
Constitution I. 6.
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 authorised to compel the attendance of absent members,
in such manner, and under such penalties as each House may provide.
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.
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 Senate 1.
CALL OF THE HOUSE.
ON a call of the House, each
person rises up as he is called, and answereth. The absentees are then only
noted, but no excuse to be made till the House be fully called over. Then the
absentees are called a second time, and if still absent, excuses are to be
heard. Ord. H. Com. 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.
Orders for calls on different days may subsist at the same time. 2.
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 authorised to send the serjeant at arms, or any other person or
persons by them authorised, 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 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 19.
THE Vice-President of the
United States shall be President of the Senate, but shall have no vote, unless
they be equally divided. Constitution 1.3.
The House of Representatives shall chuse their Speaker and other
officers. Constitution 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. 158. 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 diem 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 so Sir William Sturton, and in 15.
H. 6. Sir John Tyrrel, in 1656, January 27. 1658, March 9. 1659, January 13
Sir Job Charlton ill. Seymour chosen,
Not merely pro tem. 1 Chand. 169. 276, 277.
1673, February 18.
Seymour being ill, Sir Robt. Sawyer chosen,
1678, April 15.
Sawyer being ill, Seymour chosen.
Thorpe in execution, a new Speaker chosen, 3 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 L. Parl. 263.
A Speaker may be removed at the will of the House and a Speaker pro tempore
appointed. 2 Grey 186. 5 Grey 134.
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. Constitution 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 Chandler, 298, 301. or by such particular members as
are of the Privy Council. 2 Hats. 278.
STANDING committees, as of
privileges and elections, &c. are usually appointed at the first meeting,
to continue through the session. The person first named is generally permitted
to act as chairman. But this is a matter of courtesy; every committee having a
right to elect their own chairman, who presides over them, puts questions, and
reports their proceedings to the House. 4 inst. 11, 12, Scob. 9. 1
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. Parl. 3. vol. 2. 74. 3 Grey
401. Scob 39. Nor can they receive a petition but through the House. 9
When a committee is charged with an enquiry, 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 enquire concerning him. 9
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.
COMMITTEE OF THE WHOLE.
THE speech, messages and other
matters of great concernment, are usually referred to a committee of the whole
House. 6 Grey 311. Where general principles are digested in the form of
resolutions, which are debated and amended till they get into a shape which
meets the approbation of a majority. These being reported and confirmed by the
House, are then referred to one or more select committees, according as the
subject divides itself into one or more bills. Scob. 36, 44.
Propositions for any charge on the people are especially to be first made in a
committee of the whole. 3 Hats. 127. The sense of the whole is better
taken in committee, because in all committees every one speaks as often as he
pleases. Scob. 49. They generally acquiesce in the chairman named by the
Speaker: but, as well as all other committees, have a right to elect one, some
member, by consent, putting the question. Scob. 36. 3 Grey 301.
The form of going from the House into committee, is, for the Speaker, on
motion, to put the question that the House do now resolve itself into a
committee of the whole, to take under consideration such a matter, naming it.
If determined in the affirmative, he leaves the chair, and takes a seat
elsewhere, as any other member; and the person appointed chairman seats himself
at the clerk's table. Scob. 36. Their quorum is the same as that of the
House; and if a defect happens, the chairman, on a motion and question, rises,
the Speaker resumes the chair, and the chairman can make no other report than
to inform the House of the cause of their dissolution. If a message is
announced during a committee, the Speaker takes the chair, and receives it,
because the committee cannot. 2 Hats. 125, 126.
In a committee of the whole, the tellers on a division, differing as to the
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
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
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 on
their having leave, and on the time when the House will again resolve itself
into a committee. Scob. 38. But if they have gone through the matter
referred to them, a member moves that the committee may rise, and the chairman
report their proceedings to the House; which being resolved, the chairman
rises, the Speaker resumes the chair, the chairman informs him that the
committee have gone through the business referred to them, and that he is ready
to make report when the House shall think proper to receive it. If the House
have time to receive it, there is usually a cry of "now, now,"
whereupon he makes the report; but if it be late, the cry is "to-morrow,
to-morrow," or "on Monday, &c," or a motion is made to that
effect, and a question put that it be received to-morrow, &c. Scob.
In other things the rules of proceeding are to be the same as in the House.
EXAMINATION OF WITNESSES.
COMMON fame is a good ground
for the House to proceed by enquiry, and even to accusation. Resolution
House Commons 1. Car. 1. 1625. Rush. L. Parl. 115. 1 Grey 16.
... 22. 92. 8 Grey 21, 23, 27, 45.
As the heads of impeachment were severally read against the Lord Clarendon
in 1667, some member in his place, stated to the House, "that several
persons had undertaken to make that head good." Or, "that the member
had heard this from a certain great lord." Or, "that this was too
public to stand in need of proof." Or, in one instance, "that the
member did not doubt that it will be made out." St. Tr. 558. 4
Witnesses are not to be produced but where the House has previously
instituted an enquiry. 2 Hats. 102. nor then are orders for their
attendance given blank. 3 Grey 51. The process is a summons from the
House. 4. Hats. 255, 258.
When any person is examined before a committee, or at the bar of the House,
any member wishing to ask the person a question, must address it to the Speaker
or Chairman, who repeats the question to the person, or says to him, "you
hear the question, answer it." But if the propriety of the question be
objected to, the Speaker directs the witness, counsel and parties, to withdraw;
for no question can be moved or put, or debated while they are there. 2
Hats. 108. Sometimes the questions are previously settled in writing
before the witness enters. 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. January 22, 1744. .
Either House may request, but not command the attendance of a member of the
other. They are to make the request by message to the other House, and to
express clearly the purpose of attendance, that no improper subject of
examination may be tendered to him. The House then gives leave to the member to
attend, if he chuse it; waiting first to know from the member himself whether
he chuses 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 a question decide to
take up a particular subject. Hakew. 136.
A settled order of business is, however, necessary for the government of the
presiding person, and to restrain individual members from calling up favorite
measures, or matters under their special patronage, out of their just turn. It
is useful also for directing the discretion of the House, when they are moved
to take up a particular matter, to the prejudice of others having 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 twelve o'clock, bills ready for it are put on their passage.
3. Reports in possession of the House, which offer grounds for a bill,
are to be taken up, that the bill may be ordered in.
4. Bills or other matters before the House and unfinished on the
preceding day, whether taken up in turn, or on special order, are entitled to
be resumed and passed on through their present stage.
5. These matters being 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
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
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.
EACH House may determine
the rules of its proceedings; punish its members for disorderly behaviour, and,
with the concurrence of two thirds, expel a member. Constitution 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.
A bill being missing, the House resolved that a protestation should be made
and subscribed by the members "before Almighty God and this honorable
House, that neither myself nor any other to my knowledge, have taken away, or
do at this present conceal a bill entitled, &c." 5 Grey 202.
After a bill is engrossed, it is put into the Speaker's hands, and he is not
to let anyone have it to look into. Town. col. 209.
ORDER IN DEBATE.
WHEN the Speaker is seated in
his chair, every member is to sit in his place. Scob. 6. 3 Grey
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, 77. 1 Grey 195.
In Senate, every member, when he speaks, shall address the chair,
standing in his place, and when he has finished shall sit down. Rule 3.
When a member stands up to speak, no question is to be put, but he is to be
heard, unless the House overrule him. 4 Grey 390. 5 Grey 6, 143.
If two or more rise to speak nearly together, the Speaker determines who was
first up, and calls him by name, whereupon he proceeds, unless he voluntarily
sits down and gives way to the other. But sometimes the House does not
acquiesce in the Speaker's decision, in which case the question is put
"which member was first up?" 2 Hats. 76. Scob. 7.
D'Ewes 434. col. 1, 2.
In the Senate of the United States, the President's decision is without
appeal. Their rule is in these words: When two members rise at the same time,
the President shall name the person to speak; but in all cases, the member
first rising, shall speak first. Rule 5.
No man may speak more than once to the same bill on the same day; or even on
another day if the debate be adjourned. But if it be read more than once in the
same day, he may speak once at every reading. Co. 12, 116. Hakew.
148. Scob. 58. 2 Hats. 75. Even a change of opinion does not give
a right to be heard a second time. Smyth Comw. L. 2. c. 3.
Arcan. Parl. 17.
The corresponding rule of Senate is in these words: No member shall speak
more than twice in any one debate on the same day, without leave of the
Senate. Rule 4.
But he may be permitted to speak again to clear a matter of fact. 3
Grey 357, 416. Or merely to explain himself, 2 Hats. 73. in some
material part of his speech, ib. 75. or to the manner or words of the
question, keeping himself to that only and not travelling into the merits of
it; Memorials in Hakew. 29. or to the orders of the House if they be
transgressed, keeping within that line, and not falling into the matter itself.
Mem. in Hakew. 30, 31.
But if the Speaker rises to speak, the member standing up ought to sit down,
that he may be first heard. Town col. 205. Hale Parl. 133.
Mem. in Hakew. 30, 31. Nevertheless, though the Speaker may of right
speak to matters of order and be first heard, he is restrained from speaking on
any other subject, except where the House have occasion for facts within his
knowledge; then he may, with their leave, state the matter of fact. 3
No one is to speak impertinently or beside the question,
superfluously or tediously. Scob. 31, 33. 2 Hats. 166,
168. Hale Parl. 133.
No person is to use indecent language against the proceedings of the House,
no prior determination of which is to be reflected on by any member, unless he
means to conclude with a motion to rescind it. 2 Hats. 169, 170.
Rushw. P. 3. v. 1. fol. 42. But while a proposition is under
consideration, is still in fieri, though it has even been reported by a
committee, reflections on it are no reflections on the House. 9 Grey
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, &c. 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
unmannerly 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 or advocate it, is a personality, and against
order. Qui digreditur a materia ad personam, Mr. Speaker ought to suppress.
Ord. Com. 1604. Apr. 19.
When a member shall be called to order, he shall sit down until the
President shall have determined whether he is in order or not. Rule 16.
No member shall speak to another, or otherwise interrupt the business of
the Senate, or read any printed paper while the Journals or public papers are
reading, or when any member is speaking in any debate. Rule 2.
No one is to disturb another in his speech by hissing, coughing, spitting, 6
Grey 332. Scob. 8. D'Ewes 332. col. 1. 640.
col. 2. speaking or whispering to another; Scob. 6.
D'Ewes. 487. col. 1. nor to stand up or interrupt him; Town.
col. 205. Mem. in Hakew. 31. nor to pass 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
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 endeavour 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 any thing worth their hearing. 2 Hats. 77, 78.
If repeated calls do not produce order, the Speaker may call by his name any
member obstinately persisting in irregularity, whereupon the House may require
the member to withdraw. He is then to be heard in exculpation, and to withdraw.
Then the Speaker states the offence committed, and the House considers the
degree of punishment they will inflict. 2 Hats. 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 128, 293. 5 Grey 289. 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 farther proceeding is necessary. But if two members
still insist to take the sense of the House, the member must withdraw, before
that question is stated, and then the sense of the House is to be taken. 2
Hats. 199. 4 Grey 170. 6 Grey 59. When any member has
spoken, or other business intervened after offensive words spoken, they cannot
be taken notice of for censure. And this is for the common security of all, and
to prevent mistakes which must happen if words are not taken down immediately.
Formerly they might be taken down 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
The rule of the Senate says, if a member be called to order for words
spoken, the exceptionable words shall be immediately taken down in writing,
that the President may be better enabled to judge. Rule 17.
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
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.
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,
there 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
In the Senate of the United States, every question of order is to be
decided by the President, without debate: but if there be a doubt in his mind,
he may call for the sense of the Senate. Rule 16.
In Parliament, all decisions of the Speaker may be controuled by the House.
3 Grey 319.
ORDERS OF THE HOUSE.
OF right, the door of the
House ought not to be shut, but to be kept by porters, or serjeants 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 28.
No motion shall be deemed in order, to admit any person or persons
whatever, within the doors of the Senate Chamber, to present any petition,
memorial, or address, or to hear any such read. Rule 29.
The only case where a member has a right to insist on any thing is, where he
calls for the execution of a subsisting order of the House. Here, there having
been already a resolution, any member has a right to insist that the Speaker,
or any other whose duty it is, shall carry it into execution; and no debate or
delay can be had on it. Thus any member has a right to have the House or
gallery cleared of strangers, an order existing for that purpose; or to have
the House told when there is not a quorum present. 2 Hats. 87, 129. How
far an order of the House in 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. Jacobs L. D. by Ruffhead. Parliament, 1 Lev.
165. Prichard''s case.
Where the constitution authorises 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, ^c.
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.
A PETITION prays something. A
remonstrace 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 hand writing 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 without doors, that they know the hand writing of the
petitioners is necessary if it be questioned. 6 Grey 36. It must be presented
by a member, not by the petitioners, and must be opened by him, holding it in
his hand. 10 Grey 57.
Before any petition or memorial addressed to the Senate, shall be
received and read at the table, whether the same shall be introduced by the
President or a member, a brief statement of the contents of the petition or
memorial shall verbally be made by the introducer. Rule 21.
Regularly a motion for 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.
WHEN a motion has been made,
it is not to be put to the question or debated until it is seconded.
The Senate say no motion shall be debated until the same shall be
seconded. Rule 6.
It is then and not till then in possession of the House, 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 by the President before the same shall be
debated. Rule 7.
It might be asked whether a motion for adjournment or for the orders of the
day can be made by one member while another is speaking? It cannot. When two
members offer to speak, he who rose first is to be heard, and it is a breach of
order in another to interrupt him, unless by calling him to order, if he
departs from it. And the question of order being decided, he is still to be
heard through. A call for adjournment, or for the order of the day, or for the
question, by gentlemen from their seats, is not a motion. No motion can be made
without rising and addressing the chair. Such calls are themselves breaches of
order, which though the member who has risen may respect, as an expression of
the impatience of the House against further debate, yet, if he chuses, he has a
right to go on.
WHEN the House commands, it is
by an "order." But facts, principles, their own opinions, and
purposes, are expressed in the form of Resolutions.
A Resolution, for an allowance of money to the clerks, being moved, it
was objected to as not in order, and so ruled by the chair. But on 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 16.) the decision was overruled. Journ. Sen.
June 1, 1796.I presume the doubt was, whether an allowance of money could be
made otherwise than by bill.
EVERY bill shall receive
three readings, previous to its being passed; and the President shall give
notice at each whether it be the first, second, or third; which readings shall
be on three different days, unless the Senate unanimously direct otherwise, or,
unless by a joint vote of both Houses, or the expiration of their term, the
session is to be closed within three days. Rule 13.
BILLS, LEAVE TO BRING IN.
ONE day's notice at least
shall be given of an intended motion for leave to bring in a bill. Rule 12.
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 intituled, &c. 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. 132. Scob. 40.
It is to be presented fairly written, without any 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 at the first reading. 6
Grey 286. nor is it usual for it to be opposed then: but it may be done
and rejected. D'Ewes 335, col. 1. 3 Hats. 198.
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
IF on motion and question it
be decided that the bill shall be committed, it may then be moved to be
referred to a committee of the whole House, or to a special committee. If the
latter, the Speaker proceeds to name the committee. Any member also may name a
single person, and the clerk is to write him down as of the committee. But the
House have a controuling power over the names and number, if a question be
moved against any one, and may in any case put in and put out whom they please.
Those who take exceptions to some particulars in the bill are to be of the
committee. But none who speak directly against the body of the bill. For he
that would totally destroy, will not amend it. Hakew. 146. Town.
coll. 208. D'Ewes. 623. col. 2 Scob 47. or as is said,
5 Grey 145. the child is not to be put to a nurse that cares not for it.
6 Grey 373. It is therefore a constant rule "that no man is to be
employed in any matter who has declared himself against it." And when any
member who is against the bill hears himself named of its committee, he ought
to ask to be excused. Thus March 7, 1606, Mr. Hadley was, on the question's
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 14.
All committees shall be appointed by ballot, and a plurality of voices
shall make a choice. Rule 15.
The clerk may deliver the bill to any member of the committee. Town.
col. 138. But it is usual to deliver it to him who is first named.
In some cases, the House has ordered a committee to withdraw immediately
into the committee chamber, and act on, and bring back the bill, sitting the
House. Scob. 48.
A committee meets when, and where they please, if the House has not ordered
time and place for them. 6 Grey 370. But they can only act when
together, and not by separate consultation and consent; nothing being the
report of the committee but what has been agreed to in committee actually
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.
But in 1626, April 24, the House of Commons resolved, that though any
members may be present at the examination of witnesses, they may not be at the
debate, disposition or penning of the business by the select committee. 4
The committee have full power over the bill, or other paper committed to
them, except that they cannot change the title or subject. 8 Grey 228.
The paper before a committee, whether select, or of the whole, may be a
bill, resolutions, draught of an address, &c. and it may either originate
with them, or be referred to them. In every case, the whole paper is read first
by the clerk, and then by the chairman, by paragraphs, Scob. 49. pausing
at the end of each paragraph, and putting questions for amending, if proposed.
In the case of resolutions on distinct subjects, originating with themselves, a
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 alteration in a former part. 2 Hats. 90. In
numerous assemblies this restraint is doubtless important. But in 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
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 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 correspondent amendment
in the body of the resolution. It was objected that a preamble could not be
taken up till the body of the resolution is done with. But the preamble was
received: because we are in fact through the body of the resolution, we have
amended that as far as amendments have been offered, and indeed till little of
the original is left. It is the proper time, therefore, to consider a preamble:
and whether the one offered be consistent with the resolution, is for 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
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
amendments 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 on 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.
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. 3 Hats. 131.
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
BILL, REPORT TAKEN UP.
WHEN the report of a paper
originating with a committee, is taken up by the House, they proceed exactly as
in committee. Here, as in committee, when the paragraphs have, on distinct
questions, been agreed to seriatim, 5 Grey 366. 6 Grey 368. 8
Grey 47, 104, 360. 1 Torbuck's Deb. 125. 3 Hats. 348. no question
needs be put on the whole report. 5 Grey 381.
On taking up a bill reported with amendments, the amendments only are read
by the clerk. The Speaker then reads the first, and puts it to the question,
and so on, till the whole are adopted or rejected, before any other amendment
be admitted, except it be an amendment to an amendment. Elsynge's Mem.
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 shall be read a third time?
IF on the motion and question,
the bill be not committed, or if no proposition for commitment be made, then
the proceedings in the Senate of the United States, and in Parliament, are
totally different. The former shall be first stated.
The 20th rule of the Senate says, "All bills, on a second reading,
shall first be considered by the Senate in the same manner as if the Senate
were in a committee of the whole, before they shall be taken up and proceeded
on by the Senate agreeably to the standing rules, unless otherwise
ordered:" that is to say, unless ordered to be referred to a special
The proceeding of the Senate as in a committee of the whole, or in
quasi-committee, is precisely as in a real committee of the whole, taking no
questions but on amendments. When through the whole, they consider the
quasi-committee as risen, the House resumed, without any motion, question, or
resolution to that effect, and the President reports that "the House
acting as in a committee of the whole, have had under their consideration the
bill intituled, &c. and have made sundry amendments, which he will now
report to the House." The bill is then before them as it would have been
if reported from a committee, and questions are regularly to be put again on
every amendment: which being gone through, the President pauses to give time to
the House to propose 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 a bill in quasi-committee, a motion may be
made to refer it to a special committee. If the motion prevails, it is
equivalent in effect to the several votes that the committee rise, the House
resume itself, discharge the committee of the whole, and refer the bill to a
special committee. In that case the amendments already made fall. But if the
motion fails, the quasi-committee stands in statu quo.
How far does this 20th rule subject the House when in quasi-committee, to
the laws which regulate the proceedings of committees of the whole?
The particulars in which these differ from proceedings in the House, are the
1. In a committee, every member may speak as often as he pleases. 2. The
votes of a committee may be rejected or altered when reported to the House. 3.
A committee, even of the whole, cannot refer any matter to another committee.
4. In a committee, no previous question can be taken. The only means to avoid
an improper discussion is, to move that the committee rise: and if it be
apprehended that the same discussion will be attempted on returning into
committee, the House can discharge them, and proceed itself on the business,
keeping down the improper discussion by the previous question. 5. A committee
cannot punish a breach of order, in the House, or in the gallery. 9 Grey
113. It can only rise and report it to the House, who may proceed to punish.
The 1st and 2d of these peculiarities attach to the quasi-committee of
the Senate, as every day's practice proves; and seem to be the only ones to
which the 20th rule meant to subject them. For it continues to be a House, and
therefore, though it acts in some respects as a committee, in others it
preserves its character as a House. Thus 3. It is in the daily habit of
referring its business to a special committee. 4. It admits 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 20th 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 as a committee.
BILL, SECOND READING IN THE HOUSE.
IN Parliament, after the bill
has been read a second time, if, on the motion and question, it be not
committed, or if no proposition for commitment be made, the Speaker reads it by
paragraphs, pausing between each, but putting no question but on amendments
proposed; and when through the whole, he puts the question whether it shall be
read a third time? if it came from the other House; or, if originating with
themselves, whether it shall be engrossed and read a third time? The Speaker
reads sitting, but rises to put questions. The clerk stands while he reads.
But the Senate of the United States is so much in the habit of making
many and material amendments at the third reading, that it has become the
practice not to engross a bill till it has passed. An irregular and dangerous
practice; because, in this way, the paper which passes the Senate is not that
which goes to the other House; and that which goes to the other House as the
act of the Senate, has never been seen in Senate. In reducing numerous,
difficult, and illegible amendments into the text, the Secretary may, with the
most innocent intentions, commit errors, which can never again be
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 two last stages therefore are reserved for this,
that is to say, on the question whether it shall be 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 behoves 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.
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,
It is equally an error, to suppose that any member has a right, without a
question put, to lay a book or paper on the table, and have it read, on
suggesting that it contains matter infringing on the privileges of the House.
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 rigour 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 227.
A report of a committee of the Senate on a bill from the House of
Representatives, being under consideration, on motion that the report of the
committee of the House of Representatives on the same bill be read in Senate,
it passed in the negative; February 28, 1793.
Formerly when papers were referred to a committee, they used to be first
read: but of late, only the titles: unless a member insists they shall be read,
and then nobody can oppose it. 2 Hats. 117.
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. 274. Elsynge
Mem. 95. 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 voce. The order is a repeal of the general rule as to
this special case. When any member moves therefore for the orders of the day to
be read, no further debate is permitted on the question which was before the
House; for if the debate might proceed, it might continue through the day, and
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
It is proper that every Parliamentary assembly should have certain forms of
question 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 discontinance 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 abusively used, by adjourning it to a day beyond the
session, to get rid of it altogether, as would be done by an indefinite
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 their table. It may then be called for
at any time.
5. If the proposition will want more amendment and digestion than the
formalities of the House will conveniently admit, they refer it to a committee.
6. But if the proposition be well digested and may need but few and simple
amendments, and especially if these be of leading consequence, they then
proceed to consider and amend it themselves.
The Senate, in their practice, vary from this regular gradation of forms.
Their practice, comparatively with that of Parliament stands thus:
For the Parliamentary,
Postpmt. indefinite -
Lying on the Table -
The Senate uses,
Postp. to a day beyond the session.
Postp. to a day within the session.
Lying on the table.
In their 8th rule therefore, which declares that while a 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 its Parliamentary
sense. Their rule then establishes as privileged questions, the previous
question, postponement, commitment and amendment.
But it may be asked, have these questions any privilege among themselves?
Or, are they so equal, that the common principle of the "first moved,
first put" takes place among them? This will need explanation. Their
competitions may be as follow:
1. Prev. Qu. and Postpone,
2. Postpone and
3. Commit and
4. Amend and
In the 1st, 2d and 3d
classes and the 1st member
of the 4th class, the rule
"first moved first put"
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, or against the previous question, will enable the advocates
for postponing or committing to get at their object. Whether it may be amended,
shall be examined hereafter.
2d Class. If postponement be decided affirmatively, the proposition is
removed from before the House, and consequently there is no ground for the
previous question, commitment, or amendment. But, if decided negatively, that
it shall not be postponed, the main question may then be suppressed by the
previous question, or may be committed, or amended.
The 3d class is subject to the same observations as the 2d.
The 4th class. 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 a motion to amend a bill, any one
may notwithstanding, move to commit it, and the question for commitment shall
be first put." Scob. 46.
We have hitherto considered the case of two or more of the privileged
questions contending for privilege between themselves, when both were moved on
the original or main question; but now let us suppose one of them to be moved,
not on the original primary question, but on the secondary one: e.g.
Suppose a motion to postpone, commit or amend the main question, and that it
be moved to suppress that motion by putting 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 8th 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 1st, 2d and 3d reasons before stated, all hold good
Suppose an amendment moved to a motion for the previous question. Answer.
The previous question cannot be amended. Parliamentary usage, as well as the
9th rule of the Senate has fixed its form to be "Shall 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 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 enquire, &c." In like manner, if an amendment be moved
to an amendment, it is admitted. But it would not be admitted in another
degree: to wit, to amend an amendment to an amendment, of a main question. This
would lead to too much embarrassment. The line must be drawn somewhere, and
usage has drawn it after the amendment to the amendment. The same result must
be sought by deciding against the amendment to the amendment, and then moving
it again as it was wished to be amended. In this form it becomes only an
amendment to an amendment.
Infilling a blank with a sum, the largest sum shall be first put to the
question by the 18th rule of the Senate, contrary to the rule of Parliament
which privileges the smallest sum and longest time. 5 Grey 179. 2
Hats. 81, 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 concludes 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 to a number which will unite a bare majority. 3 Grey 376, 384, 385.
"The fair question in this case is not that to which and more all will
agree, but whether there shall be addition to the question." 1 Grey
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
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.
A matter of privilege arising out of any question, or from a quarrel between
two members, or any other cause, supersedes the consideration of the original
question, and must 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 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 any thing 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?"11 and if
the nays prevail, the main question shall not then be put. Rule 9.
This kind of question is understood by Mr. Hatsell to have been introduced
in 1604. 2 Hats. 80. Sir Henry Vane introduced it. 2 Grey 113,
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 subject is brought
forward of a delicate nature, as to high personages, &c. or the discussion
of which may call forth observations which might be of injurious consequences.
Then the previous question is proposed: and, in the modern usage, the
discussion of the main question is suspended, and the debate confined to the
previous question. The use of it has been extended abusively to other cases:
but in these it is an embarrassing procedure: its uses would be as well
answered by other more simple Parliamentary forms, and therefore it should not
be favoured, 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
moved and seconded; but not after it has been proposed from the chair. In this
case he thinks the friends to the amendment must vote that the main question be
not now put; and then move their amended question, which being made new by the
amendment, is no longer the same which has been just suppressed, and therefore
may be proposed as a new one. But this proceeding certainly endangers the main
question, by dividing its friends, some of whom may chuse 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 to the main question, by this manoeuvre of the
previous question, get the enemies to the amendment added to them on the first
vote, and throw the friends of the main question under the embarrassment of
rallying again as they can. To support his opinion too, he makes the deciding
circumstance, whether an amendment may or may not be made, to be that the
previous question has been proposed from the chair. But as the rule is that the
House is in possession of a question as soon as it is moved and seconded, it
cannot be more than possessed of it by its being also proposed from the chair.
It may be said indeed, that the object of the previous question being to get
rid of a question, which it is not expedient should be discussed, this object
may be defeated by moving to amend, and, in the discussion of that motion,
involving the subject of the main question. But so may the object of the
previous question be defeated by moving the amended question, as Mr. Hatsell
proposes, after the decision against putting the original question. He
acknowledges too, that the practice has been to admit previous amendment, and
only cites a few late instances to the contrary. On the whole, I should think
it best to decide it ab inconvenienti, to wit, which is most inconvenient, to
put it in the power of one side of the House to defeat a proposition by hastily
moving the previous question, and thus forcing the main question to be put
unamended; or to put in the power of the other side to force on, incidentally
at least, a discussion which would be better avoided? Perhaps the last is the
least inconvenience; inasmuch as the Speaker, by confining the discussion
rigorously to the amendment only, may prevent their going into the main
question, and inasmuch also as so great a proportion of the cases in which the
previous question is called for, are fair and proper subjects of public
discussion, and ought not to be obstructed by a formality introduced for
questions of a peculiar character.
ON an amendment being moved, a
member who has spoken to the main question may speak again to the amendment.
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
Amendments may be made so as totally to alter the nature of the proposition;
and it is a way of getting rid of a proposition, by making it bear a sense
different from what was intended by the movers, so that they vote against it
themselves. 2 Hats. 79, 4, 82, 84. A new bill may be ingrafted by way of
amendment, on the words "Be it enacted, &c." 1 Grey 190,
If it be proposed to amend by leaving out certain words, it may be moved as
an amendment to this amendment, to leave out a part of the words of the
amendment, which is equivalent to leaving them in the bill. 2 Hats. 80,
9. The Parliamentary question is always, whether the words shall stand part of
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.4
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 any thing forbid a new insertion, instead of A and its coherence.
In Senate, January 25, 1798, a motion to postpone until the 2d Tuesday in
February some amendments proposed to the constitution.... The words "until
the 2d Tuesday in February," were struck out by way of amendment. Then it
was moved, to add "until the 1st 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 a motion, that may be struck
out as well as any other part of the motion; and when struck out, a motion may
be received to insert any other. In fact, it is not till they are struck out,
and a blank for the time thereby produced, that the rule can begin to operate,
by receiving all the propositions for different times, and putting the
questions successively on the longest. Otherwise, it would be in the power of
the mover, by inserting originally a short time, to preclude the possibility of
a longer. For till the short time is struck out, you cannot insert a longer;
and if, after it is struck out, you cannot do it, then it cannot be done at
all. Suppose the first motion had been to amend by striking out "the 2d
Tuesday of February," and inserting instead thereof " the 1st of
June.'' It would have been regular then to divide the question, by proposing
first the question to strike out, and then that to insert. Now this is
precisely the effect of the present proceeding; only instead of one motion and
two questions, there are two motions and two questions, to effect it; the
motion being divided as well as the question.
When the matter contained in two bills might be better put into one, the
manner is to reject the one, and incorporate its matter into another bill by
way of amendment. Or, both may be referred to a committee to be made into one
bill. 4 Hats. 319. 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
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
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. 29. But not as the right of an individual member, but with the
consent of the House. For who is to decide whether a question is complicated or
not? where it is complicated? into how many propositions it may be divided? The
fact is, that the only mode of separating a complicated question is, by moving
amendments to it; and these must be decided by the House on a question, unless
the House orders it to be divided: as on the question 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 a question, they may be divided and put
one by one. 9 Grey 444. So 1729, April 17, on an objection that a
question was complicatd, it was separated by amendment. 2 Hats. 79, 5.
The soundness of these observations will be evident from the embarrassments
produced by the 10th rule of the Senate, which says, "if the question
in debate contain several points, any member may have the same
1798, May 30, the Alien Bill in quasi-committee. To a section and proviso
in the original, had been added two new provisoes by way of amendment. On a
motion to strike out the section as amended, the question was desired to be
divided. To do this, it must be put first on striking out either the former
proviso, or some distinct member of the section. But when nothing remains but
the last member of the section, and the provisoes, they cannot be divided so as
to put the last member to question by itself; for the provisoes might thus be
left standing alone, as exceptions to a rule, when the rule is taken away; or
the new provisoes 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
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 an
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 4th taking in the words
"conforming himself, &c." It was objected that the words
"any alien merchant, " could not be separated from their
modifying words "conforming, &c." because these words, if left by
themselves, contain no substantive idea, will make no sense. But admitting that
the divisions of a paragraph into separate questions must be so made as that
each part may stand by itself, yet, the House having, on the question, retained
the 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 1st member, the 2d
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 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. Journ. June 25, 1795. The same decision by President Adams.
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
IF, on a question for
rejection, a bill be retained, it passes of course to its next reading.
Hakew. 141. Scob. 42. And a question for a second reading,
determined negatively, is a rejection without farther question. 4 Grey
149. And see Elsynge's Memor. 42. in what 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, 1. To agree. 2. Disagree. 3. Recede. 4. Insist. 5. 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 amendment 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 authorise the
secretary by inference to enter another vote: for two alternatives still
remain, either of which may be adopted by the House.
THE question is to be put
first on the affirmative, and then on the negative side.
After the Speaker has put the affirmative part of the question, any member
who has not spoken before 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, &c. 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. 79, 2, 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
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, &c." he
states that "the preamble recites so and so.... the 1st section enacts
that, &c. the 2d section enacts, &c."
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 an useless waste of time, immediately after a full reading by the clerk;
and especially as every member has a printed copy in his hand.
A bill on the third reading, is not to be committed for the matter or body
thereof; but to receive some particular clause or proviso, it hath been
sometimes suffered, but as a thing very unusual. Hakew. 156. thus 27
El. 1584. a bill was committed on the third reading, having been
formerly committed on the second, but 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 ryder, which is read and put to the question three times.
Elsynge's Memorials 59. 6 Grey 335. 1 Blackst. 183.
For examples of ryders see 3 Hats. 121, 122, 124, 126. Every one is at
liberty to bring in a ryder 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 his 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 first opinion and
furnished grounds to estimate the issue; and the question now offered for its
passage, is the last occasion which is ever to be offered for carrying or
When the debate is ended, the Speaker, holding the bill in his hand, puts
the question for its passage, by saying, "Gentlemen, all you who are of
opinion that this bill shall pass, say 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 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 votes
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
Petition that it be received,5
| Lie on the table,
| Rejected after refusal to lie on table,
| Referred to a committee, or farther
|Bill, that it be brought in,
|Read 1st or 2d time,
| Engrossed, or read 3d time,
| Proceeding on every other stage,
| To committee of the whole,
| To a select committee,
| Report of bill to lie on table,
| Be now read,
| Be taken into consideration 3 months hence,
||30 P. J. 251.
| Amendments be read a 2d time,
| Clause offered on report of bill be read 2d time,
| For receiving a clause,
| With amendments be engrossed,
| That a bill be now read a 3d time,
| Receive a ryder,
| Be printed,
| Committees. That A take the chair,
| To agree to the whole or any part of report,
|That the H. do now resolve into committee,
|Speaker. That he now leave the chair, after
order to go into committee,
| That he issue warrant for a new writ,
| Member. That none be absent without leave,
|Witness. That he be further examined,
|Blanks. That they be filled with the largest sum,
|Amendments. That words stand part of Lords.
|That their amendment be read a 2d time,
|Messenger be received,
|Orders of day to be now read,
| if before 2 o'clock,
| If after 2 o'clock,
|Adjournment, till the next sitting day, if
| before 4 o'clock,
| if after 4 o'clock,
|Over a sitting day (unless a previous resolution,)
|Over the 30th of January,
|For sitting on Sunday or any other day,
not being a sitting day,
The one party being gone forth, the Speaker names two tellers from the
affirmative, and two from the negative side, who first count those sitting in
the House, and report the number to the Speaker. Then they place themselves
within the door, two on each side, and count those who went forth, as they come
in, and report the number to the Speaker. Mem. in Hakew. 26.
A mistake in the report of the tellers may be rectified after the report
made. 2 Hats. 145. note.
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 be equally divided, the Vice-President announces his
opinion, which decides.
The constitution however has directed that "the Yeas and Nays of the
members of either House on any question shall, at the desire of one fifth of
those present, be entered on the journal." And again, that in all cases of
reconsidering a bill, disapproved by the President, and returned with his
objections, "the votes of both Houses shall be determined by Teas 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 11th rule of the Senate, when the Teas 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 Teas and Nays, and
upon the call of the House, the names of the members shall be taken
When it is proposed to take the vote by Teas and Nays, the President or
Speaker states, that "the question is, whether e.g. the bill shall pass?
that it is proposed that the Teas and Nays shall be entered on the journal.
Those therefore who desire it will rise." If he finds and declares that
one fifth have risen, he then states that "those who are of opinion that
the bill shall pass are to answer in the affirmative, those of the contrary
opinion in the negative." The clerk then calls over the names
alphabetically, notes the Tea or Nay of each, and gives the list to the
President or Speaker, who declares the result. In Senate, if there be an equal
division, the secretary calls on the Vice-President, 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 he 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 the question, it would be useless to deny it on his simple call for it.
While the House is telling, no member may speak, or move out of his place;
for it 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, &c. 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. Town. col. 134.
But in the Senate of the United States, the Vice-President decides, when
the House is divided. Constitution United States 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.
1606, May 1, On a question whether a member having said yea, may afterwards
sit and change his opinion? a precedent was remembered by the Speaker, of Mr.
Morris, attorney of the wards in 39 Eliz. who in like case changed his
opinion. Mem. in Hakew. 27.
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.
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. Rule
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 equation, destroy one
another, and are as if they were expunged from the journals. Consequently the
bill is open for amendment, just so far as it was the moment preceding the
question for the third reading. That is to say, all parts of the bill are open
for amendment, except those on which votes have been already taken in its
present stage. So also it may be recommitted.
The 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
In Parliament, a question once carried, cannot be questioned again at the
same session; but must stand as the judgment of the House. Town. 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.
Town. col. 26. 2 Hats. 98, 100, 101. So orders of the House, or
instructions to committees may be discharged. So a bill, begun in one House,
sent to the other, and there rejected, may be renewed again in that other,
passed and sent back. Ib. 92. 3 Hats. 161. Or if, instead of
being rejected, they read it once and lay it aside, 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 any thing has been omitted or ill expressed, 3
Hats. 278. or an act to enforce, and make more effectual an act, &c.
or to rectify mistakes in an act, &c. or a committee on one bill may be
instructed to receive a clause to rectify the mistakes of another. Thus, June
24, 1685, a clause was inserted in a bill for rectifying a mistake committed by
a clerk in engrossing a bill of 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. 2 Hats. 94, to 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 Senate
shall, before they are sent to the House of Representatives, be examined by the
committees respectively, who brought in such bills, or to whom the same have
been last committed in Senate. Rule 23.
A bill from the other House is sometimes ordered to lie on the table. 2
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 a 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
But the House cannot recede from, or insist on its own amendment, with an
amendment: for the same reason that it cannot send to the other House an
amendment to its own act after it has passed the act. They may modify an
amendment from the other House by ingrafting an amendment on it, because they
have never assented to it; but they cannot amend their own amendment, because
they have, on the question, passed it in that form. 9 Grey 353.10
Grey 240. In Senate, March 29, 1798. Nor where one House has adhered to
their amendment, and the other agrees with an amendment, can the first House
depart from the form which they have fixed by an adherence.
In the case of a money bill, the Lords proposed amendments, become by delay,
confessedly necessary. The Commons however, refused them, as infringing on
their privilege as to money bills; but they offered themselves to add to the
bill a proviso to the same effect, which had no coherence with the Lords'
amendments; and urged that it was an expedient warranted by precedent, and not
unparliamentary, in a case become impracticable and irremediable in any other
way. 3 Hats. 256, 266, 270, 271. But the Lords refused, and the bill was
lost. 1 Chand. 288. A like case, 1 Chand. 311. So the Commons
resolve that it is unparliamentary to strike out at a conference any thing in a
bill which hath been agreed and passed by both Houses. 6 Grey 274. 1
A motion to amend an amendment from the other House, takes precedence of a
motion to agree or disagree.
A bill originating in one House, is passed by the other with an amendment.
The originating House agrees to their amendment with an amendment. The other
may agree to their amendment with an amendment; that being only in the second
and not the third degree. For as to the amending House, the first amendment
with which they passed the bill, is a part of its text; it is the only text
they have agreed to. The amendment to that text by the originating House,
therefore, is only in the first degree, and the amendment to that again by the
amending House is only in the second, to wit, an amendment to an amendment, and
so admissible. Just so when, on a bill from the originating House, the other,
at its second reading, makes an amendment; on the third reading, this amendment
is become the text of the bill, and if an amendment to it be moved, an
amendment to that amendment may also be moved, as being only in the second
IT is on the occasion of
amendments by one House disagreed to by the other, that conferences are usually
asked; but they may be asked 4 Hats. 4, 223, in all cases of difference
of opinion between the two Houses, on matters depending between them. 4
Hats. 4, 5, 7. The request of a conference, however, must always be by
the House which is possessed of the papers. 3 Hats. 31.1 Grey
425. 4 Hats. 3, 43.
Conferences may be either simple or free. At a conference simply, written
reasons are prepared by the House asking it, and they are read and delivered,
without debate, to the managers of the other House at the conference; but are
not then to be answered. 3 Grey 144. The other House then, if satisfied,
vote the reasons 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
justification 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, which are asked after two conferences, 4
Hats. 37, 40. 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. The conferees may argue in
support of what is done in their House, but not against it, nor assent to any
new thing there propounded, till their House be informed and agree to it. 4
Hats. 31, 33. 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. 4 Hats. 48. This report
cannot be amended or altered, as that of a committee may be. Journ. Sen.
May 24, 1796.
A conference may be asked before the House asking it has come
to a resolution of disagreement, insisting or adhering. 3 Hats.
269, 341. In which case the papers are not left with the other conferees, but
are brought back to be the foundation of the vote to be given. And this is the
most reasonable and respectful proceeding. For, as was urged by the Lords on a
particular occasion, "it is held vain and below the wisdom of Parliament
to reason or argue against fixed resolutions, and upon terms of impossibility
to persuade." 3 Hats. 226. So the Commons say "an adherence is
never delivered at a free conference, which implies debate." 10
Grey 147. And on another occasion, the Lords made it an objection that the
Commons had asked a free conference after they had made resolutions of
adhering. It was then affirmed, however, on the part of the Commns, that
nothing was more Parliamentary than to proceed with free conferences after
3 Hats. 269. and we do in fact see instances of conference, or of
free conference, asked after the resolution of disagreeing, 3 Hats. 251,
253, 260, 286, 291, 316, 239; of insisting, ib. 280, 296, 299, 319, 322,
355; of adhering, ib. 269, 270, 283, 300; and even of a second or final
adherence, 3 Hats. 270. And in all cases of conference asked after a
vote of disagreement, &c. the conferees of the House asking it, are to
leave the papers with the conferees of the other: and in one case, where they
refused to receive them, they were left on the table in the conference chamber.
Ib. 271, 317, 323, 354. 10 Grey 146.
The Commons affirm that it is usual to have two free conferences or more,
before either House proceeds to adhere: because, before that time, the Houses
have not had the full opportunity of making replies to one another's arguments;
and to adhere so suddenly and unexpectedly, excludes all possibility of
offering expedients. 4 Hats. 330.
After a free conference, the usage is to proceed with free conferences, and
not to return again to a conference. 3 Hats. 270. 9 Grey 229.
After a conference denied, a free conference may be asked. 1 Grey 45.
When a conference is asked, the subject of it must be expressed, or the
conference not agreed to. Ord. H. Commons 89. 1 Grey 425. 7
Grey 31.4 Hats. 20, 46. They are sometimes asked to enquire
concerning an offence, or default of a member of the other House. 6 Grey
181. 1 Chandler 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 171. 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 articles of impeachment, or a bill with
amendments, or a vote of the House, or concurrence in a vote, or a message from
the king, were sometimes communicated by way of conference. 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 a bill. 1 Grey
194. This is a singular instance.
During the time of a conference the House can do no business. As soon as the
names of the managers are called over, and they are gone to the conference, the
Speaker leaves the chair, without any question, and resumes it on the return of
the managers. It is the same while the managers of an impeachment are at the
House of Lords. 4 Hats. 47, 209, 288.
MESSAGES between the Houses
are to be sent only while both Houses are sitting. 3 Hats. 15. They are
received during a debate, without adjourning the debate. 3 Hats. 22.
In Senate the messengers are introduced in any state of business, except,
1. While a question is putting. 2. While the Teas and Nays are calling. 3.
While the ballots are calling. The first case is short: the second and third
are cases where any interruption might occasion errors difficult to be
corrected. So arranged June 15, 1798.
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 for 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 other House to correct his mistake, the correction
was received, and the two amendments acted on de novo.
As soon as the messenger who has brought bills from the other House, has
retired, the Speaker holds the bill 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. Hak. 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
communications between the Speakers, or members of the two Houses.
Where the subject of a message is of a nature that it can properly be
communicated to both Houses of Parliament, it is expected that this
communication 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
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. 242.
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. 9 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 approves, he signs and
deposits it among the rolls in the office of the secretary of state, and
notifies by message the House in which it originated, that he has approved and
signed it; of which that House informs the other by message. If the President
disapproves, he is to return it, with his objections, to 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 (Sunday
excepted) after it shall have been presented to him, the same shall be a law,
in like manner as if he had signed it, unless the Congress, by their
adjournment, prevent its return; in which case it shall not be a law.
Constitution United States, 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. Constitution United States, I. 7.
EACH House shall keep a
journal of its proceedings, and from time to time publish the same, excepting
such parts as may, in their judgment, require secrecy. Constitution I. 5.
Every vote of 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 journals. Rule 24.
The proceedings of Senate, when they shall act in their Executive
capacity shall be kept in separate & distinct books. Rule 25.
The proceedings of the Senate, when not acting as in a committee of the
House, shall be entered on the journals, as concisely as possible, care being
taken to detail a true account of the proceedings. Rule 26.
The titles of bills, and such parts thereof only as shall be affected by
proposed amendments, shall be inserted on the journals. Rule 27.
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
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 in the journals. Constitution 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. Journ. H. C. Mar. 17, 1592. Hale Parl.
105. For the Lords in their House have power of judicature, the Commons in
their House have power of judicature, and both Houses together have power of
judicature; and the book of the clerk of the House of Commons is a record, as
is affirmed by act of Parliament; 6 H. 8. c. 16. 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. 261. 3
Hats. 27, 30. Every member has a right to see the journals, and to take
and publish votes from them. Being a record, every one may see and publish
them. 6 Grey 118, 119.
On information of a misentry 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.
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. 232. 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. Constitution 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, &c. it adjourns
during pleasure. 2 Hats. 305. Or for a quarter of an hour. 5 Grey
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.
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, &c. 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
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
Congress separate in two ways only, to wit, by adjournment, or
dissolution by the efflux of their time. What then constitutes a session with
them? A dissolution certainly closes one session, and the meeting of the new
Congress begins another. The constitution authorises 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 land marks for determining sessions. In other
cases, it is declared by the joint vote authorising the President of the Senate
and the Speaker to close the session on a fixed day, which is usually in the
following form, "Resolved by the Senate and House of Representatives, that
the President of the Senate and the Speaker of the House of Representatives, be
authorised 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. Jac. L. D. Parliament.
Impeachments stand in like manner continued before the Senate of the
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. Constitution
United States II. 2.
Resolved that all confidential communications, made by the President of
the United States to the Senate, shall be, by the members thereof, kept
inviolably secret; and that all treaties, which may hereafter be laid before
the Senate shall also be kept secret until the Senate shall, by their
resolution, take off the injunction of secrecy. December 22, 1800.
Treaties are legislative acts. A treaty is a law of the land. It differs
from other laws only as it must have the consent of a foreign nation, being but
a contract with respect to that nation. In all countries, I believe, except
England, treaties are made by the legislative power; and there also, if they
touch the laws of the land, they must be approved by Parliament. Ware v.
Hylton. 3 Dallas Rep. 273. 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, 246.6
By the Constitution of the United States, this department of legislation
is confided 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 the rights reserved to the states; for surely the President and Senate
cannot do by treaty what the whole government is interdicted from doing in any
way. 4. And also to except those subjects of legislation in which it gave a
participation to the House of Representatives. This last exception is denied by
some, on the ground that it would leave very little matter for the treaty power
to work on. The less the better, say others. The constitution thought it wise
to restrain the Executive and Senate from entangling and embroiling our affairs
with those of Europe. Besides, as the negotiations are carried on by the
Executive alone, the subjecting to the ratification of the Representatives such
articles as are within their participation is no more inconvenient than to the
Senate. But the ground of this 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
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 the 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 ratifications is by nominal call.
Resolved, as a standing rule, that whenever a treaty shall be laid before
the Senate for ratification, it shall be read a first time for information
only; when no motion to reject, ratify or modify the whole or any part shall be
That its second reading shall be for consideration; and on a subsequent
day, when it shall be taken up as in a committee of the whole, and every one
shall be free to move a question on any particular article in this form,
"Will the Senate advise and consent to the ratification of this
article? " or to propose amendments thereto, either by inserting or
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.
That the votes so confirmed shall, by the House, or a committee thereof,
be reduced into the form of a ratification, with or without modifications, as
may have been decided, and shall be proposed on a subsequent day, when every
one shall again be free to move amendments, either by inserting or leaving out
words; in which last case the question shall be, "Shall the words stand
part of the resolution?" And in both cases the concurrence of two thirds
shall be requisite to carry the affirmative; as well as on the final question
to advise and consent to the ratification in the form agreed to. Rule of
January 6, 1801.
Resolved, that when any question may have been decided by the Senate, in
which two thirds of the members present are necessary to carry the affirmative,
any member who voted on that side which prevailed in the question, may be at
liberty to move for a reconsideration: and a motion for reconsideration shall
be decided by a majority of votes. Rule of February 3, 1801.
THE House of
Representatives shall have the sole power of impeachment. Constitution
United States, 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. Constitution, 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. Constitution, II.
The trial of crimes, except in cases of impeachment, shall be by
jury. Constitution, 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.
(A work of doubtful authority.) 4 Hats. 153, 186. 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 offence, 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 offence; for there they do not assume to themselves trial at
common law. The Commons are then instead of a jury, and the judgment is given
on their demand, which is instead of a verdict. So the Lords do only judge, but
not try the delinquent. 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 of high treason, where the Lords remitted
the prosecution to the inferior court. 8 Grey's Deb. 325 ... 7. 2
Wooddeson 601, 576. 3 Seld. 1610, 1619, 1641. 4 Blacks.
257. 3 Seld. 1604, 1618, 9, 1656. 4 Hats. 200. et passim
Accusation. The Commons, as the grand inquest of the nation, become suitors
for penal justice. 2 Wood. 597, 6 Grey 356. The general course
is, to pass a resolution containing a criminal charge against the supposed
delinquent, and then to direct some member to impeach him by oral accusation at
the bar of the House of Lords, in the name of the Commons. The person signifies
that the articles will be exhibited, and desires that the delinquent may be
sequestered from his seat, or be committed, or that the peers will take order
for his appearance. Sachev. Trial. 325. 2 Wood. 602, 605.
Lords' Journ. 3 June, 1701. 1 Wms. 616. 6 Grey 324.
Process. If the 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.
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 Wood. 602, 605. Lords' Journ. 3 June, 1701. 1 Wms. 616.
Appearance. If he appears, and the case be capital, he answers in custody;
though not if the accusation be general. He is not to be committed but on
special accusations. If it be for a misdemeanor only, he answers a Lord in his
place, a Commoner at the bar, and not in custody, unless, on the answer, the
Lords find cause to commit him, till he finds sureties to attend, and lest he
should fly. Seld. Jud. 98, 99. 4 Hats. 176, 185. 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 apperance may be in person, or he may answer in writing, or by
attorney. Seld. Jud. 100. The general rule on an 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 suorum. 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. 2 Rush. 1374. 12 Parl. Hist. 442. 3 Lord's
Journ. 13 Nov. 1643. 2 Wood. 607. But he cannot plead a
pardon in bar to the impeachment. 2 Wood. 615. 2 St. Tr. 735.
Replication, Rejoinder, &c. There may be a replication, rejoinder,
&c. Seld. Jud. 114. 8 Grey's Deb. 233. Sachev. 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 P. 2. a jury was impanelled 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. Ib. 148. The judgment was
a forfeiture of all her lands and goods. Ib. 188. This, Selden says, is
the only jury he finds recorded in Parliament for misdemeanors: but he makes no
doubt, if the delinquent doth put himself on the trial of his country, a jury
ought to be impanelled, 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
impanelled. Ib. 124. The Ld. Berkeley, 6 E. 3. was arraigned for
the murder of E. 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.
Ib. 125. But 4 Hats. 73, says he was a Commoner, and that there
was no waiver of privilege. 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. Ib. 133. They have been generally, and more justly,
considered, as is before stated, as the grand jury. For the conceit of Selden
is certainly not accurate, that they are the patria sua of the accused, and
that the Lords do only judge, but not try. It is undeniable that they do try.
For they examine witnesses as to the facts, and acquit or condemn, according to
their own belief of them. And Lord Hale says, "the peers are judges of law
as well as of fact." 2 Hale P. C. 275. Consequently of fact as well
as of law.
Presence of Commons. The Commons are to be present at the examination of
witnesses. Seld. Jud. 124. Indeed they are to attend throughout, either
as a committee of the whole House, or otherwise, at discretion, appoint
managers to conduct the proofs. Rush. Tr. of Straff. 37. Com.
Journ. 4 Feb. 1709 ... 10. 2 Wood. 614. And judgment is not
to be given till they demand it. Seld. Jud. 124. But they are not to be
present on impeachment when the Lords consider of the answer or proofs, and
determine of their judgment. Their presence however is necessary at the answer
and judgment in cases capital, ib. 158, 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. Sold. Jud. 167. 2 Wood. 612.
Judgment. Judgments in Parliament for death have been strictly guided per
legem terrę, which they cannot alter: and not at all according to their
discretion. They can neither omit any part of the legal 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 prevail. For
impeachments are not framed to alter the law, but to carry it into more
effectual execution against two powerful delinquents. The judgment therefore is
to be such as is warranted by legal principles or precedents. 6 Sta. Tr.
14. 2 Wood. 611. The Chancellor gives judgments in misdemeanors; the Lord High
Steward formerly in cases of life and death. Seld. Jud. 180. But now the
Steward is deemed not necessary. Fost. 144. 2 Wood. 613. In
misdemeanors, the greatest corporal punishment hath been imprisonment. Seld.
Jud. 184. The king's assent is necessary in capital judgments, (but 2
Wood. 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 16, 1791. 2
1. Ord. of the H. of Com. 1663. July
2. Elsynge 217. 1. Hats. 21.
3. 2. Stra. 989.
4. In the case of a division of the
question, and a decision against striking out, I advance doubtingly the opinion
here expressed. I find no authority either way; and I know it may be viewed
under a different aspect. It may be thought that having decided separately not
to strike out the passage, the same question for striking out cannot be put
over again, though with a view to a different insertion. Still I think it more
reasonable and convenient, to consider the striking out and insertion, as
forming one proposition; but should readily yield to any evidence that the
contrary is the practice in Parliament.
5. Noes 9 Grey 365.
6. The treaty of the Pardo between Spain
& G.B. in 1739, being disapproved by parliament, was not ratified. In
consequence whereof the war it was intended to prevent took place. Observns. of
France on Memorial of England. pa. 107.
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