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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 attained a degree of aptitude to their object beyond which little is to be desired or expected.
Yet I am far from the presumption of believing that I may not have mistaken the parliamentary practice in some cases, and especially in those minor forms, which, being practiced daily, are supposed known to every body, and therefore have not been committed to writing. Our resources, in this quarter of the globe, for obtaining infor. mation on that part of the subject, are not perfect. But I have begun a sketch, which those who come after me will successively correct and fill up, till a code of rules shall be formed for the use of the senate, the effects of which may be accuracy in business, economy of time, order, uniformity, and impartiality.
Note–The rules and practices peculiar to the Senate, are printed between brackets [ ].
Those of PARLIAMENT are not so distinguished..
SEC. 1-THE IMPORTANCE OF ADHERING TO
RULES. Mr. Onslow, the ablest among the speakers of the House of Commons, used to say, “it was a 6 maxim he had often heard when he was a young 6 man, from old and experienced members, that " nothing tended more to throw power into the « hands of administration, and those who acted 66 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 s on the actions of the majority, and that they 66 were in many instances, a shelter and protection 66 to the minority, against the attempts of power." So far the maxim is certainly true, and is founded in good sense, that as it is always in the power of the majority, by their numbers, to stop any im. proper 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 be. come 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 im. portance. 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 ma. terial that order, decency, and regularity be pre. served in a dignified public body. 2. Hats. 149.
SEC. 11.-LEGISLATURE. [All legislative powers herein granted, shall be vested in a Congress of the United States, which shall consist of a Senate and House of Represen. tatives. Constitution of the United States, Art. 1, Sect. 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 Uni. ted States. Constitution of the United States, Art. 1. Sect. 6.]
[for the powers of Congress, see the following Articles and Sections of the Constitution of the United States. I. 4. 7. 8. 9. II. 1. 2. III. 3. IV. 1. 3. 5. and all the amendments.]
SEC. III.-PRIVILEGE. The Privileges of 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 foward, from time to time, and repeated, till some example of their admission enabled them to build law on that example. We can only therefore state the points of progression at which they now are. It is now acknowledged, 1st. That they are at all times exempted from question elsewhere for any thing 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 de. tained under execution, though levied before time of privilege; 4th. Nor impleaded, cited, or subpænaed in any court: 5th. Nor summoned as a witness or juror: 6th. Nor may their lands or goods be distrained: 7th. Nor their persons as. saulted, or characters traduced. And the period of time, covered, by privilege, before and after the session, with the practice of short prorogations under the connivance of the crown, amounts in fact to a perpetual protection against the course of justice. In one instance indeed it has been re, laxed by the 10 G. 3, c. 50, which permits judi. ciary proceedings to go on against them. That these privileges must be continually progressive, seems to result from their rejecting all definition
* Order of the house of commons, 1663, July, 16. + Elsynge 217, 1 Hats, 21. 1 Grey's Deb. 133,
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 Blackst. 163, 164.
[It was probably from this view of the encroach. ing character of privilege, that the framers of our Constitution, in their care to provide that the laws shall bind equally on all and especially that those who make them shall not exempt themselves from their operation, have only privileged “ senators and representatives” themselves from the single act of “arrest in all cases, except treason, felony and breach of the peace, during their attendance at the session of their respective houses, and in going to and returning from the same, and from being questioned in any other place for any speech or debate in either house.” Const. U. S., Art. 1, Sec. 6. Under the general authority “to make all laws necessary and proper for carrying into execution the powers given them,” Const. U. S., Art. 2, Sec. 8, they may provide by law the details which may be necessary for giving full effect to the enjoyment of this privilege. No such law be. ing as yet made, it seems to stand at present on the following ground, 1. The act of arrest is void ab initio. * 2. The member arrested may be dis. charged on motion, iBl. 166, 2 Stra. 990, or by habeas corpus under the federal or state authority, as the case may be; or by a writ of privilege out
* 2 Stra. 989