USA > Wisconsin > The Wisconsin blue book 1893 > Part 13
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As soon as the messenger, who has brought the bills from the other House, has retired, the Speaker holds the bills in his hand, and acquaints the House "that the other House have by their messenger sent certain bills," and then reads their titles, and delivers them to the Clerk, to be safely kept till they shall be called for to be read. Hakew., 178.
It is not the usage for one House to inform the other by what numbers a bill has passed. 10 Grey, 150. Yet they have sometimes recommended a bill as of great importance, to the consideration of the House to which it is sent. 3 Hats., 25. Nor when they have rejected a bill from the other House, do they give notice of it; but it passes sub silento, to prevent unbecoming altercations. Blackst., 183.
[But in Congress the rejection is notified by message to the House in which the bill originated.]
A question is never asked by the one House of the other by way of message, but only at a conference; for this is an interrogatory, not a message. 3 Grey, 151, 181.
When a bill is sent by one House to the other, and is neglected, they may send a message to remind them of it. 3 Hats., 25; 5 Grey, 154. But if it be mere inattention, it is better to have it done informally, by communication between the Speakers or members of the two Houses.
Where the subject of a message is of a nature that can properly be communicated to both houses of Parliament, it is expected that this communication should be made to both on the same day. But where a message was accompanied with an original declaration, signed by the party to which the message referred, its being sent to one house was not noticed by the other, because the declaration, being original, could not possibly be sent to both houses at the same time. 2 Hats., 260, 261, 262.
The King having sent original letters to the commons, afterwards desires they may be returned, that he may communicate them to the lords. 1 Chandler, 303.
SECTION XLVIII. .
ASSENT.
The House which has received a bill and passed it, may present it for the King's assent, and ought to do it, though they have not by message notified to the other their passage of it. Yet the notifying by message is a form which ought to be observed between the two houses, from motives of respect and good understanding. 2 Hats., 142. Were the bill to be withheld from being presented to the King, it would be an infringement of the rules of Par- liament. Ib.
[When a bill has passed both houses of Congress, the house last acting on it notifies its pass- age 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 para- graphs. 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 in the hands of the Clerk of the House of Representatives to have it signed by the Speaker. The Clerk then brings it by way of message to the Senate to be signed by their President. The Secretary of the Senate returns it to the Committee of Enrollment, who present it to the President of the United States. If he approve, he signs, and deposits it among the rolls in the office of the Secretary of State, and notifies by message the house in which it originated that he has approved and signed it: of which that house informs the other by message. If the President disapproves, he is to return it with his objections to that house in which it shall have originated, who are to enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent to- gether with the President's objections to the other house, by which it shall likewise be re- considered; and if approved by two-thirds of that house, it shall become a law. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by its adjournment prevent its return; in which case it shall not be a law. Const. U. S., I, 7.]
[Every order, resolution or vote, to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment), shall be pre- sented to the President of the United States, and before the same shall take effect, shall be approved by him; or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill. Const. U. S., I, 7.]
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MANUAL OF PARLIAMENTARY PRACTICE.
SECTION XLIX.
JOURNALS.
Each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may, in their judgment, require secrecy. Const., I, 5.]
[The proceedings of the Senate, when not acting as in a Committee of the Whole, shall be entered on the journals as concisely as possible, care being taken to detail a true account of the proceedings. Every vote of the Senate shall be entered on the journals, and a brief statement of the contents of each petition, memorial, or paper presented to the Senate, be also inserted on the journal. Rule 33.]
[The titles of bills, and such parts thereof only, as shall be affected by proposed amend- ments, shall be inserted on the journals. Rule 32.]
If a question is interrupted by a vote to adjourn, or to proceed to the orders of the day, the original question is never printed in the journal, it never having been a vote, nor intro- ductory 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 ques- tion, though not yet a vote, must be expressed in the journals; because it makes part of the vote of postponement, adjourning, or laying it on the table.
Where amendments are made to a question, those amendments are not printed in the journals, separated from the question; but only the question as finally agreed to by the House. The rule of entering in the journals only what the House has agreed to, is founded in great prudence and good sense; as there may be many questions proposed, which it may be improper to publish to the world in the form in which they are made. 2 Hats., 85.
[In both houses of Congress, all questions whereon the yeas and nays are desired by one- fifth of the members present, whether decided affirmatively or negatively, must be entered on the journals. Const., I, 5.]
The first order for printing the votes of the House of Commons was October 30, 1685. 1 Chandler, 387.
Some judges have been of opinion that the journals of the House of Commons are no rec- ords, but only remembrances. But this is not law. Hob., 110, 111; Lex. Parl., 114, 115; Jour. H. C., Mar. 17, 1592; Hale, Parl., 105. For the lords in their house have power of judicature, the commons in their house have power of judicature; and both houses together have power of judicature; and the Book of the Clerk of the House of Commons is a record, as is affirmed by act of Parl .. 6 H. 8 c. 16; 4 Inst., 23, 24; and every member of the House of Commons hath a judicial place. 4 Inst., 15. As records they are open to every person, and a printed vote of either house is sufficient ground for the other to notice it. Either may appoint a committee to inspect the journals of the other, and report what has been done by the other in any particular case. 2 Hats., 361; 3 Hats., 27-30. Every member has a right to see the journals, and take and publish votes from them. Being a record, every one may see and publish them. 6 Grey, 118, 119.
On information of a mis-entry or omission of an entry in the journal, a committee may be appointed to examine and rectify it, and report it to the House. 2 Hats, 194, 5.
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." I, 5. And in case of disagreement be- tween them, with respect to the time of adjournment, the president may adjourn them to such time as he shall think proper . Const., II, 3.]
A motion to adjourn, simply, cannot be amended, as by adding " to a particular day ;" but must be put simply " that this House do now adjourn;" and if carried in the affirmative, it is adjourned 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. 2 Hats., 82.
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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 efflux 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; Lex. Parl., c. 2; 1 Ro. Rep., 29; 4 Inst., 7, 27, 28; Hutt., 61; 1 Mod., 252; Ruffh. Jac. L. Dict. Parliament; 1 Blackst., 186. Their whole session is considered in law but as one day, and has relation to the first day thereof. Bro. Abr. Parliament, 86.
Committees may be appointed to sit during a recess by adjournment, but not by 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 offlux 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, 381; Ruffh. Jac. 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 Senate, 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 39.]
Treaties are legislative acts. A treaty is the law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation. In all countries, I believe, except England, treaties are made by the legisla tive power; and there also, if they touch the laws of the land, they must be approved by
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Parliament. Ware v. Hayton, 3 Dallas' Rep., 223. It is acknowledged, for instance, that the King of Great Britain cannot by a treaty make a citizen of an alien. Vattel, .b., 1, c. 19, sec. 214. An act of Parliament was necessary to validate the American treaty of 1783. And abundant examples of such acts can be cited. In the case of the treaty of Utrecht, in 1712, the commercial articles required the concurrence of Parliament; but a bill brought in for that purpose was rejected. France, the other contracting party, suffered these articles, in practice, to be not insisted on, and adhered to the rest of the treaty. 4 Russell's Hist. Mod. Europe, 457; 2 Smollet, 242, 246.
[By the Constitution of the United States this department of legislation is confined to two branches only of the ordinary legislature; the President originating and 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 mo tion for reconsideration shall be decided by a majority of votes. Rule 37.]
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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. Ib., 84. The Lords may not, by the law, try a commoner for a capital offense, on the information of the King or a private person, 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 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 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. 8 Grey's Deb., 325-7; Wooddeson, 601, 576; 3 Seld., 1610, 1619, 1641; 4 Blackst., 25; 73 Seld., 1604, 1618; 9, 1656.
Accusation. The Commons, as the grand inquest of the nation. become suitors for penal justice. 2 Woodd .. 597; 6 Grey, 356. The general course is to pass a resolution containing a criminal charge against the supposed delinquent, and then to direct some member to 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, 324.
Process. If a party do not appear, proclamations are to be issued, giving him a day to appear. On their return they are strictly examined. If any error be found in them, a new proclamation issues, giving a short day. If he appear not, his goods may be arrested and they may proceed. Seld. Judd., 98, 99.
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. Tr., 325; 2 Woodd., 602. 605; Lords' Jour., 3 June, 1701; 1 Wms., 616.
Appearance. If he appears, and the case be capital, he answers in custody; though not if the accusations be general. He is not to be committed but on special accusations. If it be for a misdemeanor only, he answers, a Lord in his place, a Commoner at the bar, and not in custody, unless, on the answer, the Lords find cause to commit him, till he finds sure- ties to attend, and lest 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 Rushw., 268; Fost., 232; 1 Clar. Hist. of the Reb., 379. 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 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. Judd., 102-5.
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Answer. The answer need not observe great strictness of form. He may plead guilty as to part, and defend as to the residue; or, saving all exceptions, deny the whole or give a particular answer to each article separately. 1 Rush., 274; 1 Rush., 1374; 12 Parl. Hist., 442; 3 Lords' 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, 123.
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