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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 towards uniformity and accuracy ; and have now obtained 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 especially in those minor forms, which, being practised daily, are supposed known to everybody, 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.
The rules and practices peculiar to the Senate are printed in small type. Those of Parliament are in large.
A MANUAL OF PARLIAMENTARY PRACTICE.*
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 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.”
* PHILADELPHIA, February 28, 1800. My Dear Sie :-I know how precious your time is, and how exclusively you devote it to the duties of your office, yet I venture to ask a few hours or minutes of it on motives of public service, as well as private friendship. I will explain the occasion of the application. You recollect enough of the old Congress to remember that their mode of managing the business of the House was not only unparliamentary, but that the forms were so awkward and inconvenient that it was impossible sometimes to get at the true sense of the majority. The House of Representatives of the United States are now pretty much in the same situation. In the Senate it is in our power to get into a better way; our ground is this: The Senate have established a few rules for their government, and have subjected the decisions on these and on all other points of order without debate, and without appeal, to the judgment of their President, he, for his own sake, as well as theirs, must prefer recurring to some system of rules ready formed; and there can be no question that the Parliamentary rules are the best known to us for managing the debates, and obtaining the sense of a deliberative body. I have therefore made them my rule of decision, rejecting those of the old Congress altogether, and it gives entire satisfaction to the Senate; insomuch that we shall not only have a good system there, but probably, by the example of its effects, produce a conformity in the other branch. But in the course of this business I find perplexities, having for twenty years been out of deliberative bodies, and become rusty as to many points of proceeding; and so little has the Parliamentary branch of the law been attended to, that I not only find no person here, but not even a book to aid me. I had, at an early period of life, read a good deal on the subject, and common-placed what I read. This common-place has been my pillar; but there are many questions of practice on which that is silent, some of them are so minute indeed, and belong too much to every-day's practice, that they have never been thought worthy of being written down, yet from desuetude they have slipped my memory. You will see by the enclosed paper what they are. I know with what pain you write: therefore I have left a margin in which you can write a simple negative or affirmative opposite every position, or perhaps, with as little trouble, correct the text by striking out or interlining. This is what I have earnestly to solicit from you, and I would not have given you the trouble if I had had any other resource. But you are, in fact, the only spark of Parliamentary science now remaining to us. I am the more anxious, because I have been forming a manual of Parliamentary law which I mean to deposit with the Senate as the standard by which I judge, and am willing to be judged. Though I should be opposed to its being printed, yet it may be done perhaps without my consent; and in that case I should be sorry indeed should it go out with errors that a Tyro should not have committed. And yet it is precisely those to which I am most exposed. I am less afraid as to important matters, because for them I have printed authorities; but it is those small matters of daily practice, which twenty years ago were familiar to me, but have in that time escaped my memory. I hope under these circumstances you will pardon the trouble I propose to you in the enclosed paper. I am not pressed in time, so that your leisure will be sufficient for me. Accept the salutations of grateful and sincere friendship and attachment, and many prayers for your health and happiness from, Dear Sir,
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. 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; the 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, Article I., Section 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. Const. U. S., Art. I. Sect. 6.
For the powers of Congress, see the following Articles and Sections of the Constitution of the United States :- Art. I., Sec. 4, 7, 8, 9.-Art. II., Sect. 1, 2.-Art. III., Sec. 3.--Art. IV., Sec. 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, 1st. 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,* or 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 the time of privilege: 4th. Nor impleaded, 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 relaxed by 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 Blackstone, 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 be 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. I. Sec. 6. Under the general authority" to makes all laws necessary and
* Order of the House of Commons, 1663, July 16.