USA > Wisconsin > The Wisconsin blue book 1889 > Part 7
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41. Division of the House.
42.
Title.
43. Reconsideration.
44. Bills sent to the other House.
45. Amendments between the Houses.
46. Conferences.
21. Resolutions.
49. Journals.
50. Adjournment.
51. Session.
52. Treaties.
53. Impeachment.
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MANUAL OF PARLIAMENTARY PRACTICE.
NOTE - The rules and practices peculiar to the SENATE are printed between brackets, [ ]. Those of PARLIAMENT are not so distinguished.
IMPORTANCE OF RULES.
SECTION I.
IMPORTANCE OF ADHERING TO RULES.
Mr. ONSLOW, the ablest among the Speakers of the House of Commons, used to say: "It was a maxim he had often heard when he was a young man, from old and experienced Members, that nothing tended more to throw power into the hands of the administration, and those who acted with a majority of the House of Commons, than a neglect of, or de- parture from, the rules of proceeding; that these forms, as instituted by our ancestors, op- erated as a check and control on the actions of the majority, and that they were in many instances, a shelter and protection to the minority, against the attempts of power." So far the maxim is certainly true, and it is founded in good sense, that as it is always in the power of the majority, by their numbers, to stop any improper measures proposed on the part of their opponents, the only weapons by which the minority can defend themselves against similar attempts from those in power, are the forms and rules of proceeding which have been adopted as they were found necessary, from time to time, and are become the law of the House; by a strict adherence to which, the weaker party can only be protected from those irregularities and abuses which these forms were intended to check, and which the wantonness of power is but too often apt to suggest to largo and successful majorities. 2 Hats., 171, 172.
And whether these forms be in all cases the most rational or not, is really not of so great importance. It is much more material that there should be a rule to go by, than what that rule is; that there may be a uniformity of proceeding in business, not subject to the ca- price of the Speaker, or captiousness of the Members. It is very material that order, de- cency and regularity be preserved in a dignified public body. 2 Hats., 149.
SECTION IL LEGISLATIVE
[All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives - Constitution of the United States, Art. 1, Sec. 1.]
[The Senators and Representatives shall receive a compensation for their services, to be ascertained by law and paid out of the Treasury of the United States. Constitution of the United States, Art. 1, Sec. 6.]
[For the powers of Congress, see the following Articles and Sections of the Constitution of the United States. I, 4, 7, 8, 9. II, 1, 2. III, 3. IV, 1, 3, 5, and all the amendments.]
SECTION IIL PRIVILEGE
The privileges of Members of Parliament, from small and obscure beginnings, bave been advancing for centuries with a firm and never yielding pace. Claims seem to have been brought forward from time to time, and repeated, till some example of their admission enabled them to build law on that example. We can only, therefore, state the points of progression at which they now are. It is now acknowledged, Ist. That they are at all times exempted from question elsewhere for anything said in their own House; that during the time of privilege, 2d. Neither a Member himself, his wife, nor his servants (:amilarics
"Order of House of Commons, 1663, July 16
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sui), for any matter of their own, may be* arrested on mesne process, in any civil suit: 3d. Nor be detained under execution, though levied before time of privilege: 4th. Nor im- pleaded, cited or subpoenaed in any court: 5th. Nor summoned as a witness or juror: 6th. Nor may their lands or goods be distrained: 7th. Nor their persons assaulted, or characters traduced. And the period of time covered by privilege, before and after the session, with the practice of short prorogations under the connivance of the Crown, amounts in fact to a perpetual protection against the course of justice. In one instance, indeed, it has been re- laxed 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 pre- served by keeping their privileges indefinite; 'and that the maxims upon which they pro- ceed, 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. 104.
[It was probably from this view of the encroaching character of privilege that the framers of our constitution, in their care to provide that the law shall bind equally on all. and especially that those who make them shall not exempt themselves from their opera- tion, 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 attend- ance 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. . they may provide by law the details which may be necessary for giving full effect to the enjoy- ment of this privilege. No such law being yet made. it seems to stand at present on the following grounds: 1. The act of arrest is void, ab initio + 2. The member arrested may be discharged on motion, 1 Bl., 166; 3 Stra., 990; or by habeas corpus under the Federal or State authority as the case may be; or by a writ of privilege out of the Chancery, ? Stra., 989, in those States which have adopted that part of the laws of England. Orders of the House of Commons, 1550, February 20. 3. The arrest being unlawful. is a trespass for which the officer and others concerned are liable to action and indictment in the ordinary courts of justice, as in other cases of unauthorized arrest. 4. The court before which the process is returnable is bound to act as in other cases of unauthorized proceeding, and liable also, as in other similar cases, to have their proceedings stayed or corrected by the superior courts.]
[The time necessary for going to, and returning from. Congress, not being defined, it will, of course, be judged of in every particular case by those who will have to decide the case.] While privilege was understood in England to extend, as it does here, only to exemption from arrest, eundo, moranda, et redeundo, the House of Commons themselves decided that " a convenient time was to be understood." (1580,) 1 Hats., 99. 100. Nor is the law so strict in point of time as to require the party to set out immediately on his return, but allows him time to settle his private affairs, and to prepare for his journey ; and does not eren 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., 936, 967.
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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 duty to perform in another place. [When a representative is withdrawn from his seat by summons, the 40,000 people whom he represents, lose their voice in debate and vote. as they do on his voluntary absence; when a Senator is withdrawn by summons, his State loses half its voice in debate and vote, as it does on his voluntary absence. The enormous dis- parity of evil admits no comparison.]
[So far there will probably be no difference of opinion as to the privileges of the two Houses of Congress; but in the following cases it is otherwise. In December. 1795, the House of Representatives committed two persons of the name of Randall and Whitney, for attempting to corrupt the integrity of certain members, which they considered as a con- tempt and breach of the privileges of the House: and the facts being proved, Whitney was detained in confinement a fortnight, and Randall three weeks, and was reprimanded by the Speaker. In March, 1796, the House of Representatives voted a challenge given to a mem- ber 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 13, 1800, inserted some paragraphs defamatory of
"Elsynge, 217; 1 Hats., 21; Gray's Deb., 133. +Stra , 989.
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MANUAL OF PARLIAMENTARY PRACTICE.
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-defense; that all public functionaries are essentially invested with the powers of self-preservation; that they have an inherent right to 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 cognizance of con- tempts by the express provisions of their law; that the State Legislatures have equal author- ity, 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 neces- sary 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 fur- ther law is necessary, the Constitution being the law; that, moreover, by that article of the Constitution which authorizes them " to make all laws necessary and proper for carrying into execution the power vested by the Constitution in them." they may provide by law for an undisturbed exercise of their functions, e. g., for the punishment of contempt, of affrays or tumult in their presence, etc., 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 unjusti- fiable disturbances or defamations, and even their own sergeant, who may appoint deputies ad libitum to aid him, 3 Grey, 53, 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 privi- leges, it may be checked by the other, and both by the President: and also as. the law being promulgated, the citizen will know how to avoid offense. But if one branch may assume its own privileges without control; if it may do it on the spur of the occasion, conceal the law in its own breast, and after the fact committed, make its sentence both the law and the judgment on that fact, if the offense is to be kept undefined, and to be declared only ex re nata, and according to the passion of the moment, and there be no limitation either in the manner or measure of the punishment. the condition of the citizen will be perilous indeed. Which of these doctrines is to prevail. time will decide. Where there is no fixed law, the judgment on any particular case, is the law of that single case only, and dies with it. When a new and even similar case arises, the judgment which is to make and at the same time apply the law, is open to question and consideration, as are all new laws. Perhaps Congress, in the 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 inspec- tion of all, which may direct the conduct of the citizen, and at the same time test the judg- ments they shall themselves pronounce in their own case.]
Privilege from arrest takes place by force of the election; and before a return be made & member elected may be named of a committee, and is to every extent a member, except that he cannot vote until he is sworn. Memor., 107, 108. D'Faces, CI2, col. 2; 643, col. 1. Pet. Miscel. Parl., 110. 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 sett for in custody of the sergeant. Grey, S8, 95.
The privilege of a member is the privilege of the House. If the member waive it with- out 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.
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Const. U. S., I, 6, S. P., Protest of the Commons to James I., 1621; 2 Rapin, No. 54, pp. 211, 212. But this is restrained to things done in the House in a parliamentary course. 1 Rush., 663. For he is not to have privilege contra morem parliamentarum, to exceed the bounds and limits of his place and duty. Com. p.
If an offense be committed by a member of the House, of which the House has cogni- zance, 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. Ler Parl., 63.
Privilege is in the power of the House, and is a restraint to proceedings of inferior courts, but not of the House itself. 2 Nalson, 40; 2 Grey, 309. For whatever is spoken in the House is subject to the censure of the House; and offenses of this kind have been severely punished by calling the person to the bar to make submission, committing him to the tower, expelling the House, etc. Scob., 72; L. Parl., c. 22.
It is a breach of order for the speaker to refuse to put a question which is in order. 2 Hats., 175-6; 5 Grey, 133.
And even in cases of treason, felony. and breach of the peace. to which privilege does not extend as to substance, yet in Parliament a member is privileged as to the mode of pro- ceeding. 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 the other branches of government, and even of every private man, under pretense of treason, etc., to take any man from his service in the House, and so as many, one after another, as would make the House what he pleaseth. Dec. of Com. on the King's declaring Sir John Hotham a traitor. 4 Rushu., 586. So when a member stood indicted for felony, it was adjudged that he ought to remain of the House till conviction; for it may be any man's case who is guiltless, to be accused and indicted of felony or the like crime. 23 El. 1580; D'Ewes, 283, col. 1; Lex Parl .. 133.
When it is found necessary for the public service to put a member under arrest, or when on any public inquiry, matter comes out which may lead to affect the person of a member, it is the practice immediately to acquaint the House, that they may know the reasons for such a proceeding, and take such steps as they think proper. 2 Hats., 250. Of which see many examples. Ib., 256, 257, 253. But -the communication is subsequent to the arrest. 1 Blackst., 167.
It is highly expedient, says Hatsel, for the due preservation of the privileges of the sepa- rate branches of the Legislature, that neither should encroach on the other or interfere in any matter depending before them, so as to preclude or even influence that freedom of debate, which is essential to a free council. They are therefore not to take notice of any bills or other matters depending or of votes that have been given, or of speeches which have been held, by the members of either of the other branches of the Legislature, until the same have been communicated to them in the usual parliamentary manner. 2 Hats., 252. 4 Inst., 15. Seld. Jud., 53. Thus the King's taking notice of the bill for suppressing soldiers, depending before the House; his proposing a provisional clause for a bill before it was presented to him by the two Houses; his expressing displeasure against some persons " for matters moved in parliament during the debate and preparation of a bill, were breaches of privilege; 2 Nalson. 347; and in 1789, December 17, it was declared a breach of funda- mental privileges, etc., to report any opinion or pretended opinion of the King on any bill or proceeding depending in either House of Parliament with a view to influence the votes of the members. 2 Hats., 251, 6.
SECTION IV.
ELECTIONS.
[The times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing senators. Const .. 1, 4.]
[Each House shall be the judge of the elections, returns and qualifications of its own members. Const., I, 5.]
SECTION V. QUALIFICATIONS.
[The Senate of the United States shall be composed of two Senators from each State. chosen by the Legislature thereof for six years; and each Senator shall have one vote.]
[Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the
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MANUAL OF PARLIAMENTARY PRACTICE
first class shall be vacated at the end of the second year: of the second class at the expira- tion of the fourth year, and of the third class, at the expiration of the sixth year; so that one-third may be chosen every second year; and if vacancies happen, by resignation or otherwise, during the recess of the Legislature of the State, any Executive thereof may make temporary appointments, until the next meeting of the Legislature, which shall then fill such vacancies.]
[No person shall be a Senator, who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhab- itant of that State for which he shall be chosen. Const. I, 3.]
[The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors of each State shall have the qualifica- tions 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 serv- ive for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States and within every subsequent term of ten years, in such man- ner as they shall by law direct. The number of representatives shall not exceed one for every thirty thousand, but each State shall have at least one representative. Constitution of the United States, I, 2.]
[When vacancies happen in the representation from any State the executive authority thereof shall issue writs of election to fill such vacancies. Const. U. S., Art. I, Sec. 2.]
[No Senator or Representative shall, during the time for which he was elected, be ap- pointed 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 dur- ing his continuance in office. Const. I, 6.]
SECTION VI.
QUORUM.
[A majority of each House shall constitute a quorum to do business; but a smaller num- ber may adjourn from day to day, and may be authorized to compel the attendance of ab- sent members, in such manner and under such penalties as each House may provide. Const. I., 5.]
In general, the chair is not to be taken till a quorum for business is present; unless, after due waiting, such a quorum be despaired of, when the chair may be taken and the House adjourned. And whenever, during business, it is observed that a quorum is not present, any member may call for the House to be counted; and being found deficient, business is suspended. 2 Hats., 125, 126.
[The President having taken the chair, and a quorum being present, the journal of the preceding day shall be read, to the end that any mistakes may be corrected that shall have been made in the entries. Rules of the Senate.]
SECTION VIL.
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. House of Commons, 92.
They rise that their persons may be recognized; the voice in such a crowd, being an insum- cient verification of their presence. But in so small a body as the Senate of the United States, the trouble of rising cannot be necessary.
Orders for calls on different days may subsist at the same time. 2 Hats., 22.
SECTION VIII.
ABSENCE.
[No member shall absent himself from the service of the Senate without leave of the Senate first obtained. And in case a less aumber than a quorum of the Senate shall con-
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vene, they are hereby authorized to send the Sergeant-at-Arms, or any other person or per- sons by them authorized. for any or all absent members, as the majority of such members present shall agree, at the expense of such absent members, respectively, unless such ex- cuse for non-attendance shall be mnade as the Senate, when a quorum is convened, shall judge sufficient; and in that case the expense shall be paid out of the contingent fund. And this rule shall apply as well to the first convention of the Senate, at the legal time of meeting, as to each day of the session, after the hour is arrived to which the Senate stood adjourned. Rule 8.]
SECTION IX.
SPEAKER.
[The Vice President of the United States shall be President of the Senate, but shall have no vote unless they be equally divided. Constitution, I, 3.]
[The Senate shall choose their officers, and also a President pro tempore in the absence of the Vice President, or when he shall exercise the office of President of the United States. Ib.]
[The House of Representatives shall choose their Speaker and other officers. Const., I, 2.]
When but one person is proposed, and no objection made, it has not been usual in Parliament to put any question to the House; but without a question the members proposing him con- duct him to the chair. But if there be objection, or another proposed, a question is put by the clerk. 2 Hats., 168. As are also questions of adjournment. 6 Grey, 406. Where the House debated and exchanged messages and answers with the King for a week, without a Speaker, till they were prorogued. They have done it devote in diem for 14 days. 1 Chand., 331, 335.
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