Volume 9 / Part 4 — PART IV. A MANUAL OF PARLIAMENTARY PRACTICE. (continued 2)

We have hitherto considered the case of two or more of the privileged questions contending for privilege between themselves, when both were moved on the original or main question; but now let us suppose one of them to be moved, not on the original primary question, but on the secondary one, e. g.

Suppose a motion to postpone, commit, or amend the main question, and that it be moved to suppress that motion by putting the previous question on it. This is not allowed, because it would embarrass questions too much to allow them to be piled on one another several stories high; and the same result may be had in a more simple way, by deciding against the postponement, commitment, or amendment.—2 Hats. 81, 2, 3, 4.

Suppose a motion for the previous question, or commitment or amendment of the main question, and that it be then moved to postpone the motion for the previous question, or for commitment or amendment of the main question: 1. It would be absurd to postpone the previous question, commitment, or amendment, alone, and thus separate the appendage from its principal; yet it must be postponed separately from the original, if at all, because the 8th rule of the Senate says, that when a main question is before the House, no motion shall be received but to commit, amend, or pre-question the original question, which is the parliamentary doctrine; therefore, the motion to postpone the secondary motion for the previous question, or for committing or amending, cannot be received: 2. This is a piling of questions one on another, which, to avoid embarrassment, is not allowed: 3. The same result may be had more simply, by voting against the previous question, commitment, or amendment.

Suppose a commitment moved, of a motion for the previous question, or to postpone, or amend.

The 1st, 2d, and 3d reasons before stated, all hold good against this.

Suppose an amendment moved to a motion for the previous question? Answer: The previous question cannot be amended. Parliamentary usage, as well as the 9th rule of the Senate, has fixed its form to be, "Shall the main question be now put?" i. e., at this instant. And as the present instant is but one, it can admit of no modification. To change it to to-morrow, or any other moment, is without example and without utility. But suppose a motion to amend a motion for postponement, as to one day instead of another, or to a special instead of indefinite time. The useful character of amendment gives it a privilege of attaching itself to a secondary privileged motion. That is, we may amend a postponement of a main question. So we may amend a commitment of a main question, as by adding, for example, "with instruction to inquire," &c. In like manner, if an amendment be moved to an amendment, it is admitted. But it would not be admitted in another degree, to wit, to amend an amendment to an amendment of a main question. This would lead to too much embarrassment. The line must be drawn somewhere; and usage has drawn it after the amendment to the amendment. The same result must be sought by deciding against the amendment to the amendment, and then moving it again as it was wished to be amended. In this form it becomes only an amendment to an amendment.

In filling a blank with a sum, the largest sum shall be first put to the question, by the 18th Rule of the Senate, contrary to the rule of Parliament, which privileges the smallest sum and longest time.—5 Grey, 179; 2 Hats. 8, 83; 3 Hats. 132, 133. And this is considered to be not in the form of an amendment to the question, but as alternative or successive originals. In all cases of time or number, we must consider whether the larger comprehends the lesser, as in a question to what day a postponement shall be, the number of a committee, amount of a fine, term of an imprisonment, term of irredeemability of a loan, or the terminus in quem in any other case. Then the question must begin a maximo. Or whether the lesser includes the greater, as in question on the limitation of the rate of interest, on what day the session shall be closed by adjournment, on what day the next shall commence, when an act shall commence, or the terminus a quo in any other case, where the question must begin a minimo. The object being not to begin at that extreme, which, and more, being within every man's wish, no one could negative it, and yet, if we should vote in the affirmative, every question for more would be precluded; but at that extreme which would unite few, and then to advance or recede till you get to a number which will unite a bare majority.—3 Grey, 376, 384, 385. "The fair question in this case is not that to which and more all will agree, whether there shall be addition to the question."—1 Grey, 365.

Another exception to the rule of priority is, when a motion has been made to strike out or agree to a paragraph. Motions to amend it are to be put to the question, before a vote is taken on striking out, or agreeing to the whole paragraph.

But there are several questions, which, being incidental to every one, will take place of every one, privileged or not; to wit, a question of order arising out of any other question, must be decided before that question.—2 Hats. 88.

A matter of privilege arising out of any question, or from a quarrel between two members, or any other cause, supersedes the consideration of the original question, and must first be disposed of.—2 Hats. 88.

Reading papers relative to the question before the House. This question must be put before the principal one.—2 Hats. 88.

Leave asked to withdraw a motion. The rule of Parliament being, that a motion made and seconded is in possession of the House, and cannot be withdrawn without leave, the very terms of the rule imply that leave may be given, and, consequently, may be asked and put to the question.

SECTION XXXIV. THE PREVIOUS QUESTION.

When any question is before the House, any member may move a previous question, "Whether that question (called the main question) shall now be put?" If it pass in the affirmative, then the main question is to be put immediately, and no man may speak anything further to it, either to add or alter.—Memor. in Hakew. 28; 4 Grey, 27.

The previous question being moved and seconded, the question from the chair shall be, "Shall the main question be now put?" and if the nays prevail, the main question shall not then be put—Rule 9.

This kind of question is understood by Mr. Hatsell to have been introduced in 1604.—2 Hats. 80. Sir Henry Vane introduced it.—2 Grey, 113, 114; 3 Grey, 384. When the question was put in this form, "Shall the main question be put?" a determination in the negative suppressed the main question during the session; but since the words "now put" are used, they exclude it for the present only. Formerly, indeed, only till the present debate was over; 4 Grey, 43; but now for that day and no longer.—2 Grey, 113, 114.

Before the question, "Whether the main question shall now be put?" any person might formerly have spoken to the main question, because otherwise he would be precluded from speaking to it at all.—Mem. in Hakew. 28.

The proper occasion for the previous question is, when a subject is brought forward of a delicate nature as to high personages, &c., or the discussion of which may call forth observations which might be of injurious consequences. Then the previous question is proposed, and, in the modern usage, the discussion of the main question is suspended, and the debate confined to the previous question. The use of it has been extended abusively to other cases; but in these, it is an embarrassing procedure: its uses would be as well answered by other more simple Parliamentary forms, and therefore it should not be favored, but restricted within as narrow limits as possible.

Whether a main question may be amended after the previous question on it has been moved and seconded? 2 Hatsell, 88, says, If the previous question had been moved and seconded, and also proposed from the chair, (by which he means, stated by the Speaker for debate,) it has been doubted whether an amendment can be admitted to the main question. He thinks it may, after the previous question moved and seconded; but not after it has been proposed from the chair.

In this case he thinks the friends to the amendment must vote that the main question be not now put, and then move their amended question, which being made new by the amendment, is no longer the same which has been just suppressed, and therefore may be proposed as a new one. But this proceeding certainly endangers the main question, by dividing its friends, some of whom may choose it unamended, rather than lose it altogether; while others of them may vote, as Hatsell advises, that the main question be not now put, with a view to move it again in an amended form. The enemies of the main question by this manœuvre to the previous question, get the enemies to the amendment added to them on the first vote, and throw the friends of the main question under the embarrassment of rallying again as they can. To support his opinion, too, he makes the deciding circumstance, whether an amendment may or may not be made, to be, that the previous question has been proposed from the chair. But as the rule is, that the House is in possession of a question as soon as it is moved and seconded, it cannot be more than possessed of it by its being also proposed from the chair. It may be said, indeed, that the object of the previous question being to get rid of a question, which it is not expedient should be discussed, this object may be defeated by moving to amend, and, in the discussion of that motion, involving the subject of the main question. But so may the object of the previous question be defeated by moving the amended question, as Mr. Hatsell proposes, after the decision against putting the original question. He acknowledges, too, that the practice has been to admit previous amendment, and only cites a few late instances to the contrary. On the whole, I should think it best to decide it ab inconvenienti; to wit, Which is most inconvenient, to put it in the power of one side of the House to defeat a proposition by hastily moving the previous question, and thus forcing the main question to be put amended? or to put it in the power of the other side to force on, incidentally at least, a discussion which would be better avoided? Perhaps the last is the least inconvenience; inasmuch as the Speaker, by confining the discussion rigorously to the amendment only, may prevent their going into the main question; and inasmuch also, as so great a proportion of the cases, in which the previous question is called for, are fair and proper subjects of public discussion, and ought not to be obstructed by a formality introduced for questions of a peculiar character.

SECTION XXXV. AMENDMENTS.

On an amendment being moved, a member who has spoken to the main question may speak again to the amendment.—Scob. 23.

If an amendment be proposed inconsistent with one already agreed to, it is a fit ground for its rejection by the House; but not within the competence of the Speaker to suppress, as if it were against order. For, were he permitted to draw questions of consistence within the vortex of order, he might usurp a negative on important modifications, and suppress instead of subserving the legislative will.

Amendments may be made so as totally to alter the nature of the proposition; and it is a way of getting rid of a proposition, by making it bear a sense different from what was intended by the movers, so that they vote against it themselves.—2 Hats. 79; 4, 82, 84. A new bill may be ingrafted, by way of amendment, on the words, "Be it enacted," &c.—1 Grey, 190, 192.

If it be proposed to amend by leaving out certain words, it may be moved as an amendment to this amendment, to leave out a part of the words of the amendment, which is equivalent to leaving them in the bill.—2 Hats. 80, 9. The Parliamentary question is always, Whether the words shall stand part of the bill?

When it is proposed to amend by inserting a paragraph, or part of one, the friends of the paragraph may make it as perfect as they can, by amendments, before the question is put for inserting it. If it be received, it cannot be amended afterwards, in the same stage, because the House has, on a vote, agreed to it in that form. In like manner, if it is proposed to amend by striking out a paragraph, the friends of the paragraph are first to make it as perfect as they can by amendments, before the question is put for striking it out. If, on the question, it be retained, it cannot be amended afterwards; because a vote against striking out is equivalent to a vote agreeing to it in that form.

When it is moved to amend, by striking out certain words and inserting others, the manner of stating the question is, first to read the whole passage to be amended, as it stands at present; then the words proposed to be struck out; next those to be inserted; and lastly, the whole passage, as it will be when amended. And the question, if desired, is then to be divided, and put first, on striking out. If carried, it is next on inserting the words proposed. If that be lost, it may be moved to insert others.—2 Hats. 80, 7.

A motion is made to amend by striking out certain words, and inserting others in their place, which is negatived. Then it is moved to strike out the same words, and to insert others of a tenor entirely different from those first proposed. It is negatived. Then it is moved to strike out the same words and insert nothing, which is agreed to. All this is admissible; because to strike out and insert A, is one proposition. To strike out and insert B, is a different proposition. And to strike out and insert nothing is still different. And the rejection of one proposition does not preclude the offering a different one. Nor would it change the case were the first motion divided by putting the question first on striking out, and that negatived. For as putting the whole motion to the question at once would not have precluded, the putting the half of it cannot do it.[4]

But if it had been carried affirmatively to strike out the words and to insert A, it could not afterwards be permitted to strike out A and insert B. The mover of B should have notified, while the insertion of A was under debate, that he would move to insert B. In which case, those who preferred it would join in rejecting A.

After A is inserted, however, it may be moved to strike out a portion of the original paragraph, comprehending A, provided the coherence to be struck out be so substantial as to make this effectively a different proposition. For then it is resolved into the common case of striking out a paragraph after amending it. Nor does anything forbid a new insertion, instead of A and its coherence.

In Senate, January 25, 1798, a motion to postpone, until the second Tuesday in February, some amendments proposed to the Constitution. The words, "until the second Tuesday in February," were struck out by way of amendment. Then it was moved to add, "until the first day of June." Objected, that it was not in order, as the question should first be put on the longest time; therefore, a shorter time decided against, a longer cannot be put to question. It was answered, that this rule takes place only in filling blanks for time. But when a specific time stands part of a motion, that may be struck out as well as any other part of the motion; and when struck out, a motion may be received to insert any other. In fact, it is not till they are struck out, and a blank for the time thereby produced, that the rule can begin to operate, by receiving all the propositions for different times, and putting the questions successively on the longest. Otherwise, it would be in the power of the mover, by inserting originally a short time, to preclude the possibility of a longer. For, till the short time is struck out, you cannot insert a longer; and if, after it is struck out, you cannot do it, then it cannot be done at all. Suppose the first motion has been to amend by striking out "the second Tuesday in February," and inserting, instead thereof, "the first of June." It would have been regular then to divide the question, by proposing first the question to strike out and then that to insert. Now, this is precisely the effect of the present proceeding; only, instead of one motion and two questions, there are two motions and two questions to effect it; the motion being divided as well as the question.

When the matter contained in two bills might be better put into one, the manner is to reject the one, and incorporate its matter into another bill by way of amendment. So, if the matter of one bill would be better distributed into two, any part may be struck out by way of amendment, and put into a new bill. If a section is to be transposed, a question must be put on striking it out where it stands, and another for inserting it in the place desired.

A bill passed by the one House, with blanks. These may be filled up by the other, by way of amendments, returned to the first, as such, and passed.—3 Hats. 83.

The number prefixed to the section of a bill being merely a marginal indication, and no part of the text of the bill, the clerk regulates that; the House or committee is only to amend the text.

SECTION XXXVI. DIVISION OF THE QUESTION.

If a question contain more parts than one, it may be divided into two or more questions.—Mem. in Hakew. 29. But not as the right of an individual member, but with the consent of the House. For who is to decide whether a question is complicated or not? where it is complicated? into how many propositions it may be divided? The fact is, that the only mode of separating a complicated question is by moving amendments to it; and these must be decided by the House on a question, unless the House orders it to be divided: as on the question, Dec. 2, 1640, making void the election of the Knights of Worcester, on a motion it was resolved to make two questions of it, to wit, one on each Knight.—2 Hats. 85, 86. So, wherever there are several names in a question, they may be divided, and put one by one.—9 Grey, 444. So, 1729, April 17, on an objection that a question was complicated, it was separated by amendment.—2 Hats. 79. 5.

The soundness of these observations will be evident from the embarrassments produced by the 10th rule of the Senate, which says, "If the question in debate contain several points, any member may have the same divided."

1798, May 30, the alien bill in quasi-committee. To a section and proviso in the original, had been added two new provisos by way of amendment. On a motion to strike out the section as amended, the question was desired to be divided. To do this, it must be put first on striking out either the former proviso, or some distinct member of the section. But when nothing remains but the last member of the section, and the provisos, they cannot be divided so as to put the last member to question by itself; for the provisos might thus be left standing alone as exceptions to a rule when the rule is taken away: or the new provisos might be left to a second question, after having been decided on once before at the same reading; which is contrary to rule. But the question must be on striking out the last member of the section as amended. This sweeps away the exceptions with the rule, and relieves from inconsistence. A question to be divisible, must comprehend points so distinct and entire, that one of them being taken away, the other may stand entire. But a proviso or exception, with an enacting clause, does not contain an entire point or proposition.

May 31. The same bill being before the Senate. There was a proviso, that the bill should not extend, 1. To any foreign minister; nor, 2. To any person to whom the President should give a passport; nor, 3. To any alien merchant, conforming himself to such regulations as the President shall prescribe; and division of the question into its simplest elements was called for. It was divided into four parts, the 4th taking in the words "conforming himself," &c. It was objected, that the words "any alien merchant" could not be separated from their modifying words "conforming," &c., because these words, if left by themselves, contain no substantive idea, will make no sense. But admitting that the divisions of a paragraph into separate questions must be so made as that each part may stand by itself, yet the House having, on the question, retained the first two divisions, the words "any alien merchant" may be struck out, and their modifying words will then attach themselves to the preceding description of persons, and become a modification of that description.

When a question is divided, after the question on the 1st member, the 2d is open to debate and amendment: because it is a known rule, that a person may rise and speak at any time before the question has been completely decided by putting the negative, as well as the affirmative side. But the question is not completely put when the vote has been taken on the first member only. One half of the question, both affirmative and negative, still remains to be put.—See Executive Journ., June 25, 1795. The same decision by President Adams.

SECTION XXXVII. CO-EXISTING QUESTIONS.

It may be asked whether the House can be in possession of two motions or propositions at the same time? So that, one of them being decided, the other goes to question without being moved anew? The answer must be special. When a question is interrupted by a vote of adjournment, it is thereby removed from before the House; and does not stand ipso facto before them at their next meeting, but must come forward in the usual way: so, when it is interrupted by the order of the day. Such other privileged questions also as dispose of the main question (e. g. the previous question, the postponement, or commitment) remove it from before the House. But it is only suspended by a motion to amend, to withdraw, to read papers, or by a question of order or privilege, and stands again before the House when these are decided. None but the class of privileged questions can be brought forward while there is another question before the House; the rule being, that when a motion has been made and seconded no other can be received except it be a privileged one.

SECTION XXXVIII. EQUIVALENT QUESTIONS.

If, on a question for rejection, a bill be retained, it passes of course to its next reading.—Hakew. 141. Scob. 42, and a question for a second reading determined negatively, is a rejection without farther question.—4 Grey, 149. And see Elsynge's Memor. 42, in what case questions are to be taken for rejection.

Where questions are perfectly equivalent, so that the negative of the one amounts to the affirmative of the other, and leaves no other alternative, the decision of the one concludes necessarily the other.—4 Grey, 157. Thus the negative of striking out amounts to the affirmative of agreeing; and therefore to put a question on agreeing after that on striking out, would be to put the same question in effect twice over. Not so in questions of amendments between the two Houses. A motion to recede being negatived, does not amount to a positive vote to insist, because there is another alternative, to wit, to adhere.

A bill originating in one House, is passed by the other with an amendment. A motion in the originating House, to agree to the amendment, is negatived. Do these result from this vote of disagreement? or must the question on disagreement be expressly voted? The questions respecting amendments from another House are, 1st. To agree: 2d. Disagree: 3d. Recede: 4th. Insist: 5th. Adhere.

1st. To agree. Either of these concludes the other necessarily, for the positive of either is exactly the equivalent of the negative of the other, and no other alternative remains. On either motion, amendments to the amendment may be proposed; e. g. if it be moved to disagree, those who are for the amendment have a right to propose amendments, and to make it as perfect as they can, before the question of disagreeing is put.

2d. To disagree.

3d. To recede. You may then either insist or adhere. You may then either recede or adhere. You may then either recede or insist. Consequently, the negative of these is not equivalent to a positive vote the other way. It does not raise so necessary an implication as may authorize the secretary by inference to enter another vote; for two alternatives still remain, either of which may be adopted by the House.

4th. To insist.

5th. To adhere.

SECTION XXXIX. THE QUESTION.

The question is to be put first on the affirmative, and then on the negative side.

After the Speaker has put the affirmative part of the question, any member who has not spoken before the question, may rise and speak before the negative be put. Because it is no full question till the negative part be put.—Scob. 23; Hats. 73.

But in small matters, and which are of course, such as receiving petitions, reports, withdrawing motions, reading papers, &c., the Speaker most commonly supposes the consent of the House, where no objection is expressed, and does not give them the trouble of putting the question formally.—Scob. 22; 2 Hats. 87. 2. 87; 5 Grey, 129; 9 Grey, 301.

SECTION XL. BILL, THIRD READING.

To prevent bills from being passed by surprise, the House, by a standing order, directs that they shall not be put on their passage before a fixed hour, naming one at which the House is commonly full.—Hakew. 153.

The usage of the Senate is, not to put bills on their passage till noon.

A bill reported and passed to the third reading, cannot on that day be read the third time and passed. Because this would be to pass on two readings on the same day. At the third reading, the clerk reads the bill, and delivers it to the Speaker, who states the title, that it is the third time of reading the bill, and that the question will be, Whether it shall pass? Formerly, the Speaker, or those who prepared a bill, prepared also a breviate or summary statement of its contents, which the Speaker read when he declared the state of the bill at the several readings. Sometimes, however, he read the bill itself, especially on its passage.—Hakew. 136, 137, 153; Coke, 22, 115. Latterly, instead of this, he, at the third reading, states the whole contents of the bill, verbatim; only instead of reading the formal parts, "be it enacted," &c., he states that "the preamble recites so and so; the first section enacts, that, &c.; the second section enacts," &c.

But in the Senate of the United States, both of these formalities are dispensed with; the breviate presenting but an imperfect view of the bill, and being capable of being made to present a false one; and the full statement being a useless waste of time, immediately after a full reading by the clerk; and especially as every member has a printed copy in his hand.

A bill, on the third reading, is not to be committed for the matter or body thereof; but, to receive some particular clause or proviso, it hath been sometimes suffered, but as a thing very unusual.—Hakew. 156; thus, 27 El. 1584, a bill was committed on the third reading, having been formerly committed on the second; but it is declared not usual.—D'Ewes, 137, col. 2. 414. col. 2.

When an essential provision has been omitted, rather than erase the bill, and render it suspicious, they add a clause on a separate paper, engrossed and called a rider, which is read, and put to the question three times.—Elsynge's Memorials, 59; 6 Grey, 335; 1 Blackst. 183. For examples of riders, see 3 Hats. 121, 122, 124, 126. Every one is at liberty to bring in a rider without asking leave.—10 Grey, 52.

It is laid down as a general rule, that amendments proposed at the second reading shall be twice read, and those proposed at the third reading thrice read; as also all amendments from the other House.—Town. col. 19, 23, 24, 25, 26, 27, 28.

It is with great, and almost invincible reluctance, that amendments are admitted at this reading, which occasion erasures or interlineations. Sometimes the proviso has been cut off from a bill; sometimes erased.—9 Grey, 513.

This is the proper stage for filling up blanks; for if filled up before, and now altered by erasure, it would be peculiarly unsafe.

At this reading, the bill is debated afresh, and for the most part is more spoken to, at this time, than on any of the former readings.—Hakew. 153.

The debate on the question, Whether it should be read a third time? has discovered to its friends and opponents the arguments on which each side relies, and which of these appear to have influence with the House; they have had time to meet them with new arguments, and to put their old ones into new shapes. The former vote has tried the strength of the first opinion, and furnished grounds to estimate the issue; and the question now offered for its passage, is the last occasion which is ever to be offered for carrying or rejecting it.

When the debate is ended, the Speaker, holding the bill in his hand, puts the question for its passage, by saying, "Gentlemen, all you who are of opinion that this bill shall pass, say ay;" and after the answer of ayes, "All those of the contrary opinion, say no."—Hakew. 154.

After the bill has passed, there can be no further alteration of it in any point.—Hakew. 159.

SECTION XLI. DIVISION OF THE HOUSE.

The affirmative and negative of the question having been both put and answered, the Speaker declares whether the yeas or nays have it by the sound, if he be himself satisfied, and it stands as the judgment of the House. But if he be not himself satisfied which voice is the greater, or if, before any other member comes into the House, or before any new motion is made, (for it is too late after that,) any member shall rise and declare himself dissatisfied with the Speaker's decision, then the Speaker is to divide the House.—Scob. 24; 2 Hats. 140.

When the House of Commons is divided, the one party goes forth, and the other remains in the House. This has made it important which go forth, and which remain; because the latter gain all the indolent, the indifferent, and inattentive. Their general rule, therefore, is, that those who give their vote for the preservation of the orders of the House shall stay in, and those who are for introducing any new matter, or alteration, or proceeding contrary to the established course, are to go out. But this rule is subject to many exceptions and modifications.—2 Rush. p. 3, fol. 92; Scob. 43, 52; Co. 12, 116; D'Ewes, 505, col. 1; Mem. in Hakew. 25, 29; as will appear by the following statement of who go forth.

Petition that it be received,[5] Ayes.

Read, Ayes.

Lie on the table, Noes.

Rejected after refusal to lie on the table, Noes.

Referred to a committee, or farther proceeding, Ayes.

Bill, that it be brought in, Ayes.

Read 1st or 2d time, Ayes.

Engrossed or read 3d time, Ayes.

Proceeding on every other stage, Ayes.

Committed, Ayes.

To a committee of the whole, Noes.

To a select committee, Ayes.

Report of a bill to lie on table, Noes.

Be now read, Ayes.

Be taken into consideration three months hence, 50 P. J. 251.

Amendments be read a 2d time, Noes.

Clause offered on report of bill be read 2d time, Ayes. 334

For receiving a clause, Ayes.

With amendments be engrossed, Ayes.

That a bill be now read a 3d time, Noes. 398

Receive a rider, Ayes. 260

Pass, Ayes. 259

Be printed, Ayes.

Committees. That A take the chair, Noes

To agree to the whole or any part of report, Noes.

That the House do now resolve into a committee, Noes. 291

Speaker. That he now leave the chair,after order to go into committee, Noes.

That he issue warrant for a new visit, Noes.

Member. That none be absent without leave, Noes.

Witness. That he be farther examined, Ayes. 344

Previous questions, Noes.

Blanks. That they be filled with the largest sum, Ayes.

Amendments. That words stand part of, Ayes.

Lords. That their amendments be read a 2d time, Ayes.

Messenger be received, Ayes.

Orders of the day to be now read, if before 2 o'clock, Ayes.

If after 2 o'clock, Noes.

Adjournment till the next sitting day, if before 4 o'clock, Ayes.

If after 4 o'clock, Noes.

Over a sitting day, (unless a previous resolution) Ayes.

Over the 30th January, Noes.

For sitting on Sunday, or any other day, not being a sitting day, Ayes.

The one party being gone forth, the Speaker names two tellers from the affirmative, and two from the negative side, who first count those sitting in the House, and report the number to the Speaker. Then they place themselves within the door, two on each side, and count those who went forth, as they come in, and report the number to the speaker.—Mem. in Hakew. 26.

A mistake in the report of the tellers may be rectified after the report made.—2 Hats. 145. Note.

But, in both Houses of Congress, all those intricacies are avoided. The ayes first rise, and are counted, standing in their places, by the President or Speaker. Then they sit, and the noes rise, and are counted in like manner.

In Senate, if they be equally divided, the Vice-President announces his opinion, which decides.

The Constitution, however, has directed that "the yeas and nays of the members of either House, on any question, shall, at the desire of one-fifth of those present, be entered on the journal." And again, that in all cases of reconsidering a bill disapproved by the President, and returned with his objections, "the votes of both Houses shall be determined by the yeas and nays, and the names of the persons voting for and against the bill, shall be entered on the journals of each House respectively."

By the 11th rule of the Senate, when the yeas and nays shall be called for by one-fifth of the members present, each member called upon shall, unless for special reasons he be excused by the Senate, declare openly, and without debate, his assent or dissent to the question. In taking the yeas and nays, and upon the call of the House, the names of the members shall be taken alphabetically.

When it is proposed to take a vote by yeas and nays, the President or Speaker states that "The question is whether, e. g., the bill shall pass? That it is proposed that the yeas and nays shall be entered on the journal. Those, therefore, who desire it will rise." If he finds and declares that one-fifth have risen, he then states, that "those who are of opinion that the bill shall pass, are to answer in the affirmative, those of the contrary opinion, in the negative." The clerk then calls over the names alphabetically, notes the yea or nay of each, and gives the list to the President or Speaker, who declares the result. In Senate, if there be an equal division, the Secretary calls on the Vice-President, who notes his affirmative or negative, which becomes the decision of the House.

In the House of Commons, every member must give his vote the one way or the other.—Scob. 24. As it is not permitted to any one to withdraw who is in the House when the question is put, nor is any one to be told in the division who was not in when the question was put.—2 Hats. 140.

This last position is always true when the vote is by yeas and nays; where the negative as well as the affirmative of the question is stated by the President at the same time, and the vote of both sides begins and proceeds pari passu. It is true, also, when the question is put in the usual way, if the negative has also been put. But if it has not, the member entering, or any other member may speak, and even propose amendments, by which the debate may be opened again, and the question greatly deferred. And, as some who have answered aye, may have been changed by the new arguments, the affirmative must be put over again. If, then, the member entering may, by speaking a few words, occasion a repetition of the question, it would be useless to deny it on his simple call for it.

While the House is telling, no member may speak, or move out of his place; for, if any mistake be suspected, it must be told again.—Mem. in Hakew. 26; 2 Hats. 143.

If any difficulty arises in point of order, during the division, the Speaker is to decide peremptorily, subject to the future censure of the House, if irregular. He sometimes permits old experienced members to assist him with their advice, which they do sitting in their seats, covered to avoid the appearance of debate; but this can only be with the Speaker's leave, else the division might last several hours.—2 Hats. 143.

The voice of the majority decides. For the lex majoris partis is the law of all councils, elections, &c., where not otherwise expressly provided.—Hakew. 93. But if the House be equally divided, "semper presumatur pro negante:" that is, the former law is not to be changed but by a majority.—Towns. col. 134.

But, in the Senate of the United States, the Vice-President decides, when the House is divided.—Const. U S., Art. I. Sec. 2.

When, from counting the House, on a division, it appears that there is not a quorum, the matter continues exactly in the state in which it was before the division, and must be resumed at that point on any future day.—2 Hats. 126.

1606, May 1, on a question whether a member having said Yea, may afterwards sit and change his opinion? a precedent was remembered by the Speaker, of Mr. Morris, attorney of the wards, in 39 Eliz., who in like case changed his opinion.—Mem. in Hakew. 27.

SECTION XLII. TITLE.

After the bill has passed, and not before, the title may be amended, and is to be fixed by a question; and the bill is then sent to the other House.

SECTION XLIII. RE-CONSIDERATION.

When a question has been once made and carried in the affirmative or negative, it shall be in order for any member of the majority to move for the re-consideration thereof.—Rule 22.

1798, Jan. A bill on its second reading, being amended, and on the question, whether it shall be read a third time negatived, was restored by a decision to re-consider the question. Here the votes of negative and re-consideration, like positive and negative quantities in equation, destroy one another, and are as if they were expunged from the journals. Consequently the bill is open for amendment, just so far as it was the moment preceding the question for the third reading. That is to say, all parts of the bill are open for amendment, except those on which votes have been already taken in its present stage. So also may it be re-committed.

The rule permitting a re-consideration of a question affixing to it no limitation of time or circumstance, it may be asked whether there is no limitation? If, after the vote, the paper on which it has passed has been parted with, there can be no re-consideration: as if a vote has been for the passage of a bill, and the bill has been sent to the other House. But where the paper remains, as on a bill rejected, when, or under what circumstances, does it cease to be susceptible of re-consideration? This remains to be settled, unless a sense that the right of re-consideration is a right to waste the time of the House in repeated agitations of the same question, so that it shall never know when a question is done with should induce them to reform this anomalous proceeding.

In Parliament, a question once carried, cannot be questioned again, at the same session; but must stand as the judgment of the House.—Towns. col. 67; Memor. in Hakew. 33. And a bill once rejected, another of the same substance cannot be brought in again the same session.—Hakew. 158; 6 Grey, 392. But this does not extend to prevent putting the same questions in different stages of a bill; because every stage of a bill submits the whole and every part of it to the opinion of the House, as open for amendment, either by insertion or omission, though the same amendment has been accepted or rejected in a former stage. So in reports of committees, e. g. report of an address, the same question is before the House, and open for free discussion.—Towns. col. 26; 2 Hats. 98, 100, 101. So, orders of the House, or instructions to committees may be discharged. So a bill begun in one House, sent to the other, and there rejected, may be renewed again in that other, passed, and sent back.—Ib. 92; 3 Hats. 161. Or if, instead of being rejected, they read it once, and lay it aside, and put it off a month, they may offer in another to the same effect, with the same or a different title.—Hakew. 97, 98.

Divers expedients are used to correct the effects of this rule; as, by passing an explanatory act, if anything has been omitted or ill-expressed, 3 Hats. 278; or an act to enforce, and make more effectual an act, &c., or to rectify mistakes in an act, &c.; or a committee on one bill may be instructed to receive a clause to rectify the mistakes of another. Thus, June 24, 1685, a clause was inserted in a bill for rectifying a mistake committed by a clerk in engrossing a bill of reply.—2 Hats. 194. 6. Or the session may be closed for one, two, three, or more days, and a new one commenced. But then all matters depending must be finished, or they fall, and are to begin de novo.—2 Hats. 94, 98. Or a part of the subject may be taken up by another bill, or taken up in a different way.—6 Grey, 316.

And in cases of the last magnitude, this rule has not been so strictly and verbally observed as to stop indispensable proceedings altogether.—2 Hats. 92. 98. Thus, when the address on the preliminaries of peace, in 1782, had been lost by a majority of one; on account of the importance of the question, and smallness of the majority, the same question in substance, though with words not in the first, and which might change the opinions of some members, was brought on again and carried: as the motives for it were thought to outweigh the objections of form.—2 Hats. 99, 100.

A second bill may be passed, to continue an act of the same session; or to enlarge the time limited for its execution.—2 Hats. 95, 98. This is not in contradiction to the first act.

SECTION XLIV. BILLS SENT TO THE OTHER HOUSE.

All bills passed in the Senate, shall before they are sent to the House of Representatives, be examined by the committees respectively who brought in such bills, or to whom the same have been last committed in Senate.—Rule 23.

A bill from the other House is sometimes ordered to lie on the table.—2 Hats. 97.

When bills, passed in one House and sent to the other, are grounded on special facts requiring proof, it is usual, either by message, or at a conference, to ask the grounds and evidence; and this evidence, whether arising out of papers, or from the examination of witnesses, is immediately communicated.—3 Hats. 48.

SECTION XLV. AMENDMENTS BETWEEN THE HOUSES.

When either House, e. g. the House of Commons, sends a bill to the other, the other may pass it with amendments. The regular progression in this case is, that the Commons disagree to the amendment; the Lords insist on it; the Commons insist on their disagreement; the Lords adhere to their amendment; the Commons adhere to their disagreement. The term of insisting may be repeated as often as they choose, to keep the question open. But the first adherence by either renders it necessary for the other side to recede or adhere also; when the matter is usually suffered to fall.—10 Grey, 148. Latterly, however, there are instances of their having gone to a second adherence. There must be an absolute conclusion of the subject somewhere, or otherwise transactions between the Houses would be endless.—3 Hats. 268, 270. The term of insisting, we are told by Sir John Trevor, was then [1679] newly introduced into Parliamentary usage, by the Lords.—7 Grey, 94. It was certainly a happy innovation, as it multiplies the opportunities of trying modifications which may bring the House to a concurrence. Either House, however, is free to pass over the term of insisting, and to adhere in the first instance—10 Grey, 146. But it is not respectful to the other. In the ordinary Parliamentary course, there are two free conferences at least before adherence.—10 Grey, 147.

Either House may recede from its amendment, and agree to the bill; or recede from their disagreement to the amendment, and agree to the same absolutely, or with an amendment. For here the disagreement and receding destroy one another, and the subject stands as before the disagreement.—Elsynge, 23, 27; 9 Grey, 476.

But the House cannot recede from or insist on, its own amendment with an amendment, for the same reason that it cannot send to the other House an amendment to its own act after it has passed the act. They may modify an amendment from the other House by ingrafting an amendment on it, because they have never assented to it; but they cannot amend their own amendment, because they have, on the question, passed it in that form; 9 Grey, 353; 10 Grey, 240. In Senate, March 29, 1798. Nor where one House has adhered to their amendment, and the other agrees with an amendment, can the first House depart from the form which they have fixed by an adherence.

In the case of a money bill, the Lords' proposed amendments became, by delay, confessedly necessary. The Commons, however, refused them, as infringing on their privilege as to money bills, but they offered themselves to add to the bill a proviso to the same effect, which had no coherence with the Lords' amendments, and urged, that it was an expedient warranted by precedent, and not unparliamentary in a case become impracticable, and irremediable in any other way.—3 Hats. 256, 266, 270, 271. But the Lords refused and the bill was lost, 1 Chand. 288. A like case, 1 Chand. 311. So the Commons resolve, that it is unparliamentary to strike out at a conference anything in a bill which hath been agreed and passed by both Houses, 6 Grey, 274; 1 Chand. 312.

A motion to amend an amendment from the other House, takes precedence of a motion to agree or disagree.

A bill originating in one House, is passed by the other with an amendment.

The originating House agrees to their amendment with an amendment. The other may agree to their amendment with an amendment; that being only in the second and not the third degree. For, as to the amending House, the first amendment with which they passed the bill is a part of its text; it is the only text they have agreed to. The amendment to that text by the originating House, therefore, is only in the 1st degree, and the amendment to that again by the amending House is only in the 2d, to wit, an amendment to an amendment, and so admissible. Just so when, on a bill from the originating House, the other, at its 2d reading, makes an amendment; on the 3d reading, this amendment is become the text of the bill, and if an amendment to it be moved, an amendment to that amendment may also be moved, as being only in the second degree.

SECTION XLVI. CONFERENCES.

It is on the occasion of amendments between the Houses that conferences are usually asked; but they may be asked in all cases of difference of opinion between the two Houses on matters depending between them. The request of a conference, however, must always be by the House which is possessed of the papers.—3 Hats. 71; 1 Grey, 435; 4 Hats. 3, 43.

Conferences may be either simple or free. At a conference simply, written reasons are prepared by the House asking it, and they are read and delivered without debate, to the managers of the other House at the conference; but are not then to be answered.—3 Grey, 144. The other House then, if satisfied, vote the reasons satisfactory, or say nothing; if not satisfied, they resolve them not satisfactory, and ask a conference on the subject of the last conference, where they read and deliver in like manner written answers to those reasons.—3 Grey, 183. They are meant chiefly to record the justification of each House to the nation at large, and to posterity, and in proof that the miscarriage of a necessary measure is not imputable to them.—3 Grey, 255. At free conferences, the managers discuss vivâ voce and freely, and interchange propositions for such modifications as may be made in a Parliamentary way, and may bring the sense of the two houses together. And each party reports in writing to their respective Houses the substance of what is said on both sides, and it is entered in their journals.—6 Grey, 220; 3 Hats. 280. (Vide Joint Rules, 1.) This report cannot be amended or altered as that of a committee may be.—Journ. Senate, May 24, 1796.

A conference may be asked, before the House asking it has come to a resolution of disagreement, insisting or adhering.—3 Hats. 269, 341. In which case the papers are not left with the other conferees, but are brought back to be the foundation of the vote to be given. And this is the most reasonable and respectful proceeding. For, as was urged by the Lords on a particular occasion, "it is held vain, and below the wisdom of Parliament, to reason or argue against fixed resolutions, and upon terms of impossibility to persuade."—3 Hats. 226. So the Commons say "an adherence is never delivered at a free conference, which implies debate."—10 Grey, 147. And on another occasion, the Lords made it an objection that the Commons had asked a free conference after they had made resolutions of adhering. It was then affirmed, however, on the part of the Commons, that nothing was more Parliamentary than to proceed with free conferences after adhering; 3 Hats. 269; and we do in fact see instances of conference or of free conference, asked after the resolution of disagreeing.—3 Hats. 251, 253, 260, 286, 291, 316, 349, of insisting, ib. 280, 296, 299, 319, 322, 355, of adhering, 269, 270, 283, 300; and even of a second or final adherence.—3 Hats. 270. And in all cases of conference asked after a vote of disagreement, &c., the conferees of the House asking it are to leave the papers with the conferees of the other; and in one case where they refused to receive them, they were left on the table in the conference chamber.—3 Hats. 271, 317, 323, 354; 10 Grey, 146. The Commons affirm, that it is usual to have two free conferences or more before either House proceeds to adhere, because, before that time, the Houses have not had the full opportunity of making replies to one another's arguments, and, to adhere so suddenly and unexpectedly, excludes all possibility of offering expedients.—4 Hats. 330.

After a free conference the usage is to proceed with free conferences, and not to return again to a conference.—3 Hats. 270; 9 Grey, 229.

After a conference denied, a free conference may be asked.—1 Grey, 45.

When a conference is asked, the subject of it must be expressed, or the conference not agreed to.—Ord. H. Com. 89; 1 Grey, 425; 7 Grey, 31. They are sometimes asked to inquire concerning an offence or default of a member of the other House, 6 Grey, 181; 1 Chand. 304; or the failure of the other House to present to the King a bill passed by both Houses, 8 Grey, 302; or on information received, and relating to the safety of the nation, 10 Grey, 171, or when the methods of Parliament are thought by the one House to have been departed from by the other, a conference is asked to come to a right understanding thereon.—10 Grey, 148. So, when an unparliamentary message has been sent, instead of answering it, they ask a conference.—3 Grey, 155. Formerly, an address, or articles of impeachment, or a bill with amendments, or a vote of the House, or concurrence in a vote, or a message from the King, were sometimes communicated by way of conference.—7 Grey, 128, 300, 387; 7 Grey, 80; 8 Grey, 210, 255; 1 Torbuck's Deb. 278; 10 Grey, 293; 1 Chandler, 49, 287. But this is not modern practice.—8 Grey, 255.

A conference has been asked after the first reading of a bill.—1 Grey, 194. This is a singular instance. During the time of a conference, the House can do no business. As soon as the names of the managers are called over, and they are gone to the conference, the Speaker leaves the chair, without any question, and resumes it in the return of the managers. It is the same while the managers of an impeachment are at the House of Lords.—4 Hats. 47, 209, 288.

SECTION XLVII. MESSAGES.

Messages between the Houses are to be sent only while both Houses are sitting.—3 Hats. 15. They are received during a debate, without adjourning the debate.—3 Hats. 22.

In Senate, the messengers are introduced in any state of business, except—1. While a question is putting. 2. While the yeas and nays are calling. 3. While the ballots are calling. The first case is short: the second and third are cases where any interruption might occasion errors difficult to be corrected.—So arranged, June 15th, 1798.

In the House of Representatives, as in Parliament, if the House be in a committee when a messenger attends, the Speaker takes the chair to receive the message, and then quits it to return into a committee, without any question or interruption.—4 Grey, 226.

Messengers are not saluted by the members, but by the Speaker, for the House.—2 Grey, 253, 274.

If messengers commit an error in delivering their messages, they may be admitted, or called in, to correct their message.—4 Grey, 41. Accordingly, March 13, 1800, the Senate having made two amendments to a bill from the House of Representatives, their secretary, by mistake, delivered one only; which being inadmissible by itself, that House disagreed, and notified the Senate of their disagreement. This produced a discovery of the mistake. The secretary was sent to the other House to correct his mistake, the correction was received, and the two amendments acted on de novo.

As soon as the messenger, who has brought 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-silentio to prevent unbecoming altercation.—1 Black. 133.

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 communications between the Speakers, or members of the two Houses.

Where the subject of a message is of a nature that it 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.—3 Hats. 242. Were the bill to be withheld from being presented to the King, it would be an infringement of the rules of Parliament.—2 Hats. 242.

When a bill has passed both Houses of Congress, the House last acting on it notifies its passage to the other, and delivers the bill to the joint committee of enrolment, who see that it is truly enrolled in parchment. When the bill is enrolled, it is not to be written in paragraphs, but solidly and all of a piece, that the blanks within 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 enrolment, who present it to the President of the United States. If he approves, 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 the 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 the House shall agree to pass the bill, it shall be sent, together with the President's objections, to the other House, by which it shall likewise be reconsidered, 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 (Sunday's 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 their adjournment, prevent its return; in which case it shall not be a law.—Const. U. S., Art. I. Sec. 7.

Every order, resolution, or vote, to which the concurrence of the Senate and the House of Representatives may be necessary, (except on a question of adjournment,) shall be presented 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 re-passed 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., Art. I. Sec. 7.

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, 3.

Every vote of Senate shall be entered on the journal, and a brief statement of the contents of each petition, memorial, or paper, presented to the Senate, be also inserted on the journal.—Rule 24.

The proceedings of the Senate, when not acting as in a committee of the House, shall be entered on the journals, as concisely as possible, care being taken to detail a true account of the proceedings.—Rule 26.

The titles of bills, and such part thereof only as shall be affected by proposed amendments, shall be inserted on the journals.—Rule 27.

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 introductory 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 question, though not yet a vote, must be expressed in the journals; because it makes part of the vote of postponement, adjourning, or laying 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, 3.

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 records, but remembrances. But this is no law.—Cob. 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 Parliament.—6 H. 8. c. 16; Inst. 23, 24; and every member of the House of Commons has 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. 261; 3 Hats. 27, 30. Every member has a right to see the journals, and to 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 adjourning, 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 adjourn from day to day.—I. 5. But neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.—I. 5. The President may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he 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 to 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.

Where it is convenient that the business of the House be suspended for a short time, as for a conference presently to be held, &c., 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 LI. A SESSION.

Parliament have three modes of separation, to wit, by adjournment, by prorogation, by dissolution by the King, or by the efflux of the term for which they were elected. Prorogation 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 Blackstone, 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, &c., 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 commencement, at the point at which they were left.—1 Lev. 165; Lex. Parl. c. 2; 1 Ro. Rep. 29; 4 Inst. 7, 27, 28; Hut. 61; 1 Mod. 152; Ruffh. Jac. L. Dict. Parliaments; Blackstone, 186. Their whole session is considered in law but as one day, and has relation to the first day thereof.—Bro. Abro. Parliament, 86.

Committees may be appointed to sit during a recess by adjournment, but not by prorogation.—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 certainly 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."—Art. I. Sec. 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 cases, it is declared by the joint vote authorizing the President of the Senate and the Speaker to close the session 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 the Speaker of the House of Representatives, 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. Art. II. Sec. 2.

Resolved, That all confidential communications, made by the President of the United States to the Senate, shall be, by the members thereof, kept inviolably secret; and that all treaties, which may hereafter be laid before the Senate, shall also be kept secret, until the Senate shall, by their resolution, take off the injunction of secrecy.—Dec. 22d, 1804.

Treaties are legislative acts. A treaty is a 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 legislative power; and there, also, if they touch the laws of the land, they must be approved by Parliament. Ware vs. Hilton.—3 Dallas's Rep. 199. 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 Senate having a negative. To what subject this power extends, has not been defined in detail by the Constitution; nor are we entirely agreed among ourselves. 1. It is admitted that it must concern the foreign nation, party to the contract, or it would be a mere nullity res inter alias acta. 2. By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and cannot be otherwise regulated. 3. It must have meant to except out of these the rights reserved 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 Representatives such articles as are within their participation, is no more inconvenient than to the Senate. But the ground of this exemption 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 infringed and rescinded. This was accordingly the process adopted in the case of France, 1798.

It has been the usage of the Executive, when it communicates a treaty to the Senate for their ratification, to communicate also the correspondence of the negotiations. This having been omitted in the 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.

Resolved, as a standing rule, That 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.

That 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 inserting or leaving out words, in which last case the question shall be, "Shall the words stand part of the article?" And in every of the said cases, the concurrence of two-thirds of the Senators present shall be required to decide affirmatively. And when through the whole, the proceedings shall be stated to the House, and questions be 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.

That 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 of Jan. 6, 1801.

Resolved, That 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 motion for reconsideration shall be decided by a majority of votes.—Rule of Feb. 3, 1801.

SECTION LIII. IMPEACHMENT.

The House of Representatives shall have the sole power of impeachment.—Const. U. S. Art. I. Sec. 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 concurrence 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 nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law.—Const. U. S. Art. I. Sec. 3.

The President, Vice-President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.—Const. U. S. Art. II. Sec. 4.

The trial of crimes, except in cases of impeachment, shall be by jury.—Const. U. S. Art. III. Sec. 2.

These are the provisions of the Constitution of the United States on the subject of impeachments. The following is a sketch on 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 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 capital offence, on the information of the King, or a private person; because 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 offence; 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 capitally before the Lords, even by the Commons; and cites Fitzharris's case, 1681, impeached of high treason, where the Lords remitted the prosecution to the inferior court.—8 Grey's Deb. 325, 6, 7; 2 Wooddeson, 601, 576; 3 Seld. 1610, 1619, 1641; 4 Black. 257; 3 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 impeach him by oral accusation, at the bar of the House of Lords, in the name of the Commons. 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 for his appearance.—Sachev. Trial. 325; 2 Woodd. 602, 605; Lords' Jour. 3 June, 1701; 1 Wms. 616; Grey, 324.

Process.—If the 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. Jud. 98, 99.

Articles.—The accusation (article) of the Commons, is substituted in place of an indictment. Thus, by the usage of Parliament, an impeachment for writing or speaking the particular words, need not be specified.—Sach. Tr. 325; 2 Woodd. 602, 605; Lords' Journ. 3 June, 1701; 1 Wms. 616.

Appearance.—If he appears, and the case be capital, he answers in custody; though not if the accusation 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 find sureties to attend, and lest he should fly.—Seld. Jud. 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. On a misdemeanor, his appearance may be in person, or he may answer in writing, or by attorney.—Seld. Jud. 100. The general rule on accusation 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. Seld. Jud. 101. If previously committed by the Commons, he answers as a prisoner. But this may be called, in some sort, judicium parium suorum.—Seld. Jud. In misdemeanors, the party has a right to counsel by the common law; but not in capital cases.—Seld. Jud. 102-5.

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; 2 Rush. 1374; 12 Parl. Hist. 442; 3 Lords' Journ. 13 Nov. 1643; 2 Wood. 607. But he cannot plead a pardon in bar to the impeachment.—2 Wood. 618; 2 St. Tr. 735.

Replication, rejoinder, &c.—There may be a replication, rejoinder, &c.—Seld. Jud. 114; 8 Grey's Deb. 233; Sach. Tr. 15; Journ. House 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.

Jury.—In the case of Alice Pierce, 1 R. 2. a jury was empannelled for her trial before a committee.—Seld. Jud. 123. But this was on a complaint, not an impeachment by the Commons.—Seld. Jud. 163. It must also have been for a misdemeanor only, as the Lords Spiritual sat in the case, which they do on misdemeanors, but not in capital cases.—Seld. Jud. 148. The judgment was a forfeiture of all her lands and goods.—Seld. Jud. 188. This, Selden says, is the only jury he finds recorded in Parliament for misdemeanors; but he makes no doubt if the delinquent doth put himself on the trial of his country, a jury ought to be empannelled: and he adds, that it is not so on impeachment by the Commons; for they are in oco proprio, and here no jury ought to be empannelled.—Ib. 124. The Lord Berkley, 6 E. 3, was arranged for the murder of, L. 2, on an information on the part of the King, and not on 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.—Ib. 125. In one, 1 H. 7, the Common protest that they are not to be considered as parties to any judgment given, or hereafter to be given in Parliament.—Ib. 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, that 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 condemn 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. 124. 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 Wood. 614. And judgment is not to be given till they demand it.—Seld. Jud. 124. But they are not to be present on impeachment when the Lords consider of the answer or proofs, and determine of their judgment. Their presence, however, is necessary at the answer and judgment in cases capital.—Ib. 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 particular sentence, is out of that which seemeth to be most generally agreed on.—Seld. Jud. 167; 2 Wood. 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 admit any part of the legal judgment, nor add to it. Their sentence must be secundum, non ultra legem.—Seld. Jud. 168, 169, 170, 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, prevail. For impeachments were 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 Stra. Tr. 14; 2 Wood. 611. The Chancellor gives judgments in misdemeanors; the Lord High Steward, formerly, in cases of life and death.—Seld. Jud. 180. But now the Steward is deemed not necessary.—Fost. 144; 1 Woodd. 613. In misdemeanors, the greatest corporal punishment hath been imprisonment.—Seld. Jud. 184. The King's assent is necessary in capital judgments, (but 2 Woodd. 614. contra.) but not in misdemeanors.—Seld. Jud. 136.

Continuance.—An impeachment is not discontinued by the dissolution of Parliament; but may be resumed by the new Parliament.—T. Ray. 383; 5 Com. jour. 23 Dec. 1790; Lord's jour. May 16, 1791; 2 Wood. 618.