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The Constitution of the United States, establishing a legislature for the Union under certain forms, authorizes 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. Hatsel's most valuable book is pre-eminent; 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 ancient times, and for a long while, were crude, multiform, and embarrassing. They have been, however, constantly advancing toward uniformity and accuracy, and have now attained a degree of aptitude to their object beyond which little is to be desired or expected.
Yet I am far from the presumption of believing that I may not have mistaken the Parliamentary practice in some cases, and especialiy in those minor forms, which, being practiced daily, are supposed known to everybody, and therefore have not been committed to writing. Our resources in this quarter of the globe, for obtaining inforination 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.--References to present Senate rules are printed in italic.
IMPORTANCE OF RULES.
SEC. 1.-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 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 is founded in good sense, that as it is always in the power of the majority, by their numbers, to stop any improper measures proposed on the part of their opponents, the only weapons by which the minority can defend themselves against similar attempts from those in power, are the forms and rules of proceeding which have been adopted as they were found necessary, from time to time, and are become the law of the House; by a strict adherence to which, the weaker party can only be protected from those irregularities and abuses which these forms were intended to check, and which the wantonness of power is but too often apt to suggest to large and successful majorities. 2 Hats., 171, 172.
And whether these forms be in all cases the most rational or not, is really not of so great importance. It is much more material that there should be a rule to go by, than what that rule is; that there may be a uniformity of proceeding in business, not subject to the
caprice of the Speaker, or captiousness of the members. It is very material that order, decency, and regularity be preserved in a dignified public body. 2 Hats., 149.
All legislative powers herein granted shall be vested in a Con. gress of the United States, which shall consist of a Senate and House of Representatives. Constitution of the United States, drt. I, Sec. 1.
The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. Constitution of the United States, Art. 1, Sec. 6.
For the powers of Congress, see the following Articles and Sections of the Constitution of the United States: I, 4, 7, 8, 9. II, 1, 2. III, 3. IV, 1, 3, 5, and all the amendments.
-PRIVILEGE. The privileges of members of Parliament, from small and obscure beginnings, have been advancing for centuries with a firm and neveryielding 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, (familiares sui,) for any matter of their own, may bet arrested on mesne process, in any civil suit: 3d. Nor be detained under execution, though levied before time of privilege: 4th. Nor impleaded, cited, or subpænaed 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
* Order of the Ilouse of Conmons, 1663, July 16. + Elsynge, 217; I Hats., 21; I Grey's Deb., 133.
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.'” i 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.* 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 House of Commons, 1550, February 20. 3. The arrest being un. lawful, 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 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.
* 2 Stra., 989.