USA > Wisconsin > The Wisconsin blue book 1889 > Part 13
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On information of a mis-entry or omission of an entry in the journal, a committee may be appointed to examine and rectify it, and report it to the House. 2 Hats, 194, 5.
SECTION L. ADJOURNMENT.
The two houses of Parliament have the sole, separate and independent power of adjourn- Ing each their respective Houses. The King has no authority to adjourn them: he can only signify his desire, and it is in the wisdom and prudence of either House to comply with his requisition, or not, as they see fitting. 2 Hats., 332; 1 Blackstone, 186; 5 Grey. 122.
[By the Constitution of the United States a smaller number than a majority may ad- journ from day to day. I. 5. But "neither House, during the session of Congress, shall. without the consent of the other, adjourn for more that three days, nor to any other place than that in which the two Houses shall be sitting." 1. 5. And in case of disagreement be- tween them, with respect to the time of adjourument, the president may adjourn them to ruch time as he shall think proper . Const., II, 3.]
A motion to adjourn, simply, cannot be amended, as by adding " to a particular day :" but must be put simply " that this House do now adjourn;" and if carried in the affirmative, it Is adjourned till 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. % Hats., 8 !.
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WISCONSIN BLUE BOOK.
Where it is convenient that the business of the House be suspended for a short time, as for a conference presently to be held, etc., it adjourns during pleasure. 2 Hats., 305; or for a quarter of an hour. 5 Grey, 331.
If a question be put for adjournment, it is no adjournment till the Speaker pronounces it. 5 Grey, 137. And from courtesy and respect, no member leaves his place till the Speaker has passed on.
SECTION LL
A SESSION.
Parliament have three modes of separation, to wit: By adjournment, by prorogation or dissolution by the King, or by the etflux of the term for which they were elected. Proro- gation or dissolution constitutes there what is called a session, provided some act has passed. In this case all matters depending before them are discontinued, and at their next meeting are to be taken up de novo, if taken up at all. 1 Blackst., 186. Adjournment, which is by themselves, is no more than a continuance of the session from one day to another, or for a fortnight, a month, etc., ad libitum. All matters depending remain in statu quo, and when they meet again, be the term ever so distant, are resumed, without any fresh commence- ment, at the point at which they were left. 1 Lev., 165: Le.r. Parl., c. 2; 1 Ro. Rep .. 20; 4 Inst., 7, 27, 28; Hutt., 61; 1 Mod., 252; Ruffh. Jac. L. Dict. Parliament; 1 Blackst., 156. Their whole session is considered in law but as one day, and has relation to the first day thereof. Bro. Abr. Parliament, 86. -
Committees may be appointed to sit during a recess by adjournment, but not by proro- gation. 5 Grey, 374; 9 Grey, 350; 1 Chandler, 50. Neither House can continue any portion of Itself in any parliamentary function beyond the end of the session without the consent of the other two branches. When done, it is by a bill constituting them commissioners for the particular purpose.
[Congress separate in two ways only, to wit: by adjournment, or dissolution by the efflux of their time. What, then, constitutes a session with them! A dissolution closes one session, and the meeting of the new Congress begins another. The Constitution authorizes the President, " on extraordinary occasions to convene both houses or either of them." (I. 3.) If convened by the President's proclamation, this must begin a new session, and of course determine the preceding one to have been a session. So if it meets under the clause of the Constitution, which says, " the Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day " (I. 4), this must begin a new session; for even if the last adjournment was to this day, the act of adjournment is merged in the higher authority of the Constitution, and the meeting will be under that and not under their adjournment. So far we have fixed landmarks for determining sessions. In other words, it is declared by the joint vote authorizing the President of the Senate and Speaker to close the sessisn on a fixed day, which is usually in the following form: Resolved by the Senate and House of Representatives, That the President of the Senate and Speaker of the House of Represent- atives be authorized to close the present session by adjourning their respective Houses on the - day of
When it was said above that all matters depending before Parliament were discontinued by the determination of the session, it was not meant for judiciary cases depending before the House of Lords, such as impeachments, appeals and writs of error. These stand, continued, of course, to the next session. Raym., 120. 331; Ruffh. Juc. L. D., Parliament.
[Impeachments stand, in like manner, continued before the Senate of the United States.]
SECTION LII.
TREATIES.
[The President of the United States has power, by and with the advice and! consent of the Senate, to make treaties, provided two-thirds of the Senators present concur. Const. U. S., II., 2.]
[All confidential communications made by the President of the United States to the Benate, shall be by the members thereof kept secret; and that all treaties which may here- after be laid before the Senate, shall also be kept secret, until the Senate shall, by their res- olution. take off the injunction of secrecy. Rule 30.]
Treaties are legislative acts. A treaty is the law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation. In all countries, I believe, except England, treaties are made by the legisla tive power; and there also, if they touch the laws of the lan L they must be approved Is
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MANUAL OF PARLIAMENTARY PRACTICE.
Parliament. Ware v. Hayton, 3 Dallas' Rep., 23. 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 abundan: 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 Russell's Hist. Mod. Europe, 457; 2 Smollet, 242, 216.
[By the Constitution of the United States this department of legislation is confined to two branches only of the ordinary legislature; the President originating and the Senate having a negative. To what subjects this power extends has not been defined in detail by the Con- stitution; nor are we entirely agreed among ourselves. 1. It is admitted that it must con- cern the foreign nation party to the contract, or it would be a mere nullity, res inter alios acta. 2. By the general power to make treaties, the Constitution must have intended to comprehend only those subjects which are usually regulated by treaty, and cannot be otherwise regulated. 3. It must have meant to except out of these rights 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 representative such articles as are within their participation, is no more inconvenient than to the Senate. But the ground of this exception is denied as unfounded. For examine, e. g., the treaty of commerce with France, and it will be found that, out of thirty-one articles. there are not more than small portions of two or three of them which would not still remain as subjects of treaties, untouched by these exceptions.]
Treaties being declared, equally with the laws of the United States, to be the supreme law of the land, it is understood that an act of the legislature alone can declare them in- fringed and rescinded. This was accordingly the process adopted in the case of France in 1798.
[It has been the usage for the Executive, when it communicates a treaty to the Senate for their ratification, to communicate also the correspondence of the negotiators. This having been omitted in case of the Prussian treaty, was asked by a vote of the House, of February 12, 1800. and was obtained. And in December, 1800, the convention of that year between the United States and France, with the report of the negotiations by the envoys, but not their instructions, being laid before the Senate, the instructions were asked for, and communicated by the President.]
[The mode of voting on questions of ratification is by nominal call.]
[Whenever a treaty shall be laid before the Senate for ratification, it shall be read a first time for information only; when no motion to reject, ratify, or modify the whole, or any part, shall be received. Its second reading shall be for consideration, and on a subsequent day, when it shall be taken up as in a committee of the whole, and every one shall be free to move a question on any particular article, in this form: "Will the Senate advise and consent to the ratification of this article? " or to propose amendments thereto, either by in- serting or by leaving out words, in which last case the question shall be. "shall the words stand part of the article?" And in every one 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 being again severally put thereon, for confirmation, or new ones proposed, requiring in like manner a concurrence of two-thirds for whatever is retained or inserted.]
[The votes so confirmed shall, by the House, or a committee thereof, be reduced into the form of a ratification, with or without modifications, as may have been decided, and shall be proposed on a subsequent day, when every one shall again be free to move amendments. either by inserting or leaving out words; in which last case the question shall be. " Shall the words stand part of the resolution?" And in both cases the concurrence of two-thirds shall be requisite to carry the affirmative; as well as on the final question to advise and consent to the ratification in the form agreed to. Rule 37.]
[When any question may have been decided by the Senate, in which two-thirds of the members present are necessary to carry the affirmative, any member who voted on that side which prevailed in the question may be at liberty to move for a reconsideration, and a mno tion for reconsideration shall be decided by a majority of votes. Rule ST.] .
WISCONSIN BLUE BOOK.
SECTION LIII
IMPEACHMENT.
[The House of Representatives shall have the sole power of impeachment. Const. U. S., I, 3.]
[The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: and no person shall be convicted without the concur- rence 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 nev- ertheless be liable and subject to indictment, trial, judgment and punishment according to law. Const., I, 3.]
[The President. Vice President, and all civil officers of the United States, shall be re- moved from office on impeachment for. and conviction of, treason, bribery, or other high crimes and misdemeanors. Const., II, 4.]
[The trial of crimes, except in cases of impeachment, shall be by jury. Const., III, 2.] These are the provisions of the Constitution of the United States on the subject of im- peachments. The following is a sketch of some of the principles and practices of England on the same subject.
Jurisdiction. The Lords cannot impeach any to themselves, nor join in the accusation, because they are the judges. Seld. Judic. in Parl., 12, 63. Nor can they proceed against a commoner but on complaint of the Commons. 1b., 84. The Lords may not, by the law, try a commoner for a capital offense, on the information of the King or a private person, be- cause the accused is entitled to a trial by his peers generally; but on accusation by the House of Commons, they may proceed against the delinquent, of whatsoever degree. and whatsoever be the nature of the offense; for there they do not assume to themselves trial at common law. The commons are then instead of a jury, and the judgment is given ou their demand, which is instead of a verdict. So the Lords do only judge, but not try the delinquent. 1b., 6, 7. But Wooddeson denies that a commoner can now be charged capi- tally before the Lords, even by the commons; and cites Fitzharris's case, 1681, impeached for high treason. where the Lords remitted the prosecution to the inferior court. & Grey's Deb., 325-7; Wooddeson, 601, 576; 3 Seld., 1610, 1619, 1641; 4 Blackst., 25; 73 Seld., 1001, 1618; 9, 1656.
Accusation. The Commons, as the grand inquest of the nation. become suitors for penal justice. 2 Woodd., 597; 6 Grey, 356. The general course is to pass a resolution containing a criminal charge against the supposed delinquent, and then to direct some member to im- peach him by oral accusation, at the bar of the House of Lords, in the name of the Com- mons. The person signifies that the articles will be exhibited, and desires that the delinquent may be sequestered from his seat. or be committed. or that the peers will take order from his appearance. Sachev. Trial, 329; 2 Woodd., 602, 605; Lords' Jour., 3 June, 1701, 101; 1 Wms., 616; 6 Grey, 321.
Process. If a party do not appear, proclamations are to be issued, giving him a day to appear. On their return they are strictly examined. If any error be found in them, a new proclamation issues, giving a short day. If he,appear not, his goods may be arrested and they may proceed. Seld. Judd., 98, 93.
Articles. The accusation (articles) of the Commons is substituted in place of an indict- ment. Thus, by the usage of Parliament, in impeachment for writing or speaking, the particular words need not be specified. Sach. T'r., 325; 2 Woodd., 602. 605; Lords' Jour .. 8 June, 1701; 1 Wms., 616.
Appearance. If he appears, and the case be capital, he answers in custody; though not if the accusations be general. He is not to be committed but on special accusations. If it be for a misdemeanor only, he answers, a Lord in his place, a Commoner at the bar, and not in custody, unless, on the answer, the Lords find cause to commit him, till he finds sure- ties to attend, and Iest he should fly. Seld. Judd., 98, 99. A copy of the articles is given him, and a day fixed for his answer. T. Ray; 1 Rushwe., 208: Fost., 232; 1 Clar. Hist. of the Reb., 879. Or a misdemeanor his appearance may be in person, or he may answer in writ- Ing, or by attorney. Seld. Judd., 100. The general rule on accusations for a misdemeanor Is, that In such a state of liberty or restraint as the party is when the comatons 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 judicimm pariun suorum. 16. In misdemeanors the party has a right to counsel by the common law; but not in capital cases. Seld. Judd., 102 5.
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MANUAL OF PARLIAMENTARY PRACTICE.
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 s particular answer to each article separately. 1 Rush., 274; 1 Rush., 1374: 12 Parl. Hist., 412; 3 Lords' Jour., 13 Nov., 1643; Woodd., 607. But he cannot plead a pardon in bar to the im- peachment. 2 Woodd., 615; 2 St. Tr., 735.
Replication, rejoinder, etc. There may be a replication, rejoinder, etc. Sel. Jud., 114; 8 Grey's Deb., 233; Sach. Tr., 15; Journ. H. of Commons, 6 March, 1640, 1.
Witnesses. The practice is to swear the witnesses in open House, and then examine them there; or a committee may be named, who shall examine them in committee, either on interrogatories agreed on in the House, or such as the committee in their discretion shall demand. Seld. Jud., 120, 125.
Jury. In the case of Alice Pierce (1 R. 2), a jury was empaneled for her trial before a committee. Seld. Jud .. 123. But this was on a complaint, not on impeachment by the com- mons. Seld. Jud., 163. It must also have been for a misdemeanor only, as the lords spirit- ual sat in the case, which they do on misdemeanors, but not in capital cases. 1d., 148. The judgment was a forfeiture of all her lands and goods. Id., 153. This, Selden says, is the only jury he finds recorded in Parliament for misdemeanor; but he makes no doubt, if the delinquent doth put himself on trial of his country a jury ought to be impaneled, 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 impaneled. Id., 124. The Ld. Berkeley. 6 E., 3, was arraigned for the murder of L., 2, on an information on the part of the King, and not impeachment of the commons; for then they had been patria sua. He waived his peerage, and was tried by a jury of Gloucestershire and Warwickshire. Id., 125. In 1 H., 7, the commons protest that they are not to be considered as parties to any judgment given, or hereafter to be given in Parliament. Seld. Jud., 133. They have been generally and more justly considered, as is before stated, as the grand jury; for the conceit of Selden is certainly not accurate, and they are the patria sua of the accused, and that the Lords do only judge, but not try. It is undeniable that they do try; for they examine witnesses as to the facts, and acquit or con- demn, 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., 121. Indeed, they are to attend throughout, either as a committee of the whole House, or otherwise, at discretion, appoint managers to conduct the proofs. Rushw. Tr. of Straff., 37; Com. Journ., 4 Feb., 1709-10; 2 WFoodd., 614. And judgment is not to be given till they demand it. Seld. Jud., 121. But they are not to be present on impeachment when the Lords consider of the answer of proofs and determine of their judgment. Their presence, however, is necessary at the answer and judgment in cases capital (Id., 58, 159) as well as not capital (162). The Lords debate the judgment among themselves. Then the vote is first taken on the question of guilty or not guilty; and if they convict, the question, or par- ticular sentence, is out of that which seemeth to be most generally agreed on. Seld. Jud., 167. 2 Woodd., 612.
Judgment. Judgments in Parliament, for death, have been strictly guided per legem terræ, which they cannot alter; and not at all according to their discretion. They can neither omit any legal part of the judgment nor add to it. Their sentence must be secund- um, non ultra legem. Seld. Jud., 168-171. This trial, though it varies in external ceremony, yet differs not in essentials from criminal prosecutions before inferior courts. The same rules of evidence, the same legal notions of crimes and punishments, prevailed; for im- peachments 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 Woodd., 611. The chancellor gives judz- ment in misdemeanors: the lord high steward formerly in cases of life and death. Seld. Jud., 150. But now the steward is deemed not necessary. Fost., 144; 2 Woodd., 613. In misdemeanors the greatest corporal punishment hath been imprisonment. Seld. Jud .. 184. The King's assent is necessary in capital judgments (2 Woodd., 614, contra), but not in mis- demeanors. Seki. 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., 1700; Lordis' Jour., May 15, 1721; 2 Woodd., 618.
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CUSTOMS, PRECEDENTS AND FORMS.
Organization.
"The Legislature convenes at 12 o'clock, M., on the 2d Wednesday of January in every odd numbered year.
Custom, so prevalent and so ancient as to have the force of law, has made it the duty of the Chief Clerk of the previous Assembly to call to order, and to conduct the proceedings generally, until a Speaker is chosen.
The Secretary of State furnishes to the clerk a certified statement of the names of the members elect, which is read. The members then advance to the Clerk's desk. generally the delegation of each county by itself. and subscribe to the oath of office.
It often happens, that by neglect of the proper county officer, to return the proceedings of the county canvassers, some members find their election not to be on record in the Sec- retary's office. In such case the certificate held by the member himself should be produced to the Clerk. This answers every purpose, and should always be secured by members elect, from the clerk of their county.
The oath of office is then administered to the members elect. It may be administered by the Speaker, the President of the Senate, the Governor, Secretary of State, Attorney Gen- eral, or any of the Judges of the Supreme Court. It has been administered in this state, usually, by one of the judges. Members coming in after the first day of the session are sworn in by the Speaker.
After all are sworn, the roll is called, when, if a quorum is found to be present, the Clerk declares the House to be qualified and competent to proceed to business.
If the parties in the Assembly have determined their choice for officers, the election pro- ceeds forthwith: if not. an adjournment is had until the next day.
The election for Speaker, Clerk and Sergeant-at-Arms is required to be viva voce, and these are the only offices the Assembly can fill.
The roll is called, and each member announces audibly the name of the candidate of his choice.
The clerk announces the result, and names a committee to conduct the Speaker elect to the chair. The other clections proceed in the same manner, except that when the result is announced by the Speaker the officer elect advances to the Clerk's desk and is sworn in by the Speaker.
A committee is then appointed to wait on the Senate. and inform it that the Assembly is organized; or the Clerk is directed by resolution, to inform the Senate of the fact.
A joint committee of both Houses is then appointed to convey a like message to the Governor, and inform him that the Houses are in readiness to receive any communication from him.
The Senate and Assembly have usually assembled in joint convention in the Assembly Chamber, upon some day and hour suggested by the Governor during the first week of the session to hear his annual message, but the message has sometimes been read separately to each House by the clerks thereof.
The message has been read usually by the Governor himself, but sometimes by his Private Secretary, and sometimes by the Clerk of one of the Houses.
At the first opportunity after hearing the message read. the various recommendations therein contained, are referred, by resolution, to appropriate standing committees or soloest committees.
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CUSTOMS, PRECEDENTS AND FORMS.
In the Assembly standing committees are appointed by the Speaker at as early a day in the session as is possible. In the Senate, the committees are appointed by resolution of that body. The custom is for the party having the majority to agree upon their members of the committees, in caucus. The list is then handed to the other party, and the balance of the members are named. When thus completed, the list is offered in the Senate in the form of a resolution, that the standing committees be as therein named.
Drawing of Seats.
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