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A MANUAL *
BY THOMAS JEFFERSON.
IMPORTANCE OF RULES.
THE IMPORTANCE OF ADHERING TO RULES.
MR. Onslow, the ablest among the Speakers of the House of Com mons, used to say, “It was a maxim he had often heard when he was a young man, from old and experienced members, that nothing tended more to throw power into the hands of administration, and those who acted with the majority of the House of Commons, than a neglect of, or departure from, the rules of proceeding: that these forms, as instituted by our ancestors, operated as a check and control on the actions of the majority, and that they were, in many instances, a shelter and protection to the minority against the attempts of power.'] So far the maxim is certainly true, and is founded in good sense, that as it is always in the power of the majority, by their numbers, to stop any improper measures proposed on the part of their opponents, the only weapons by which the minority can defend themselves against similar attempts from those in power, are the forms and rules of proceeding, which have been adopted, as they were found necessary, from time to time, and are become the law of the House; by a strict adherence to which, the weaker party can only be protected from those irregularities and abuses which these forms were intended to cheek, and which the wantonness of power is but too often apt to suggest to large and successful majorities. [2 Hats. 171, 172. ]
* This Manual was compiled more than half a century ago by Ex-President Jefferson. Its Parliamentary rules are received as authority, when they do not conflict with those of Congress. See Rule 139, House Representatives, page 134.
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 an 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. ]
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, [ Ord. of the H. of Com. 1663, July 16, ) or his servants, for any matter of their own, may be [Elsynge 217. 1 Hats. 21. 1 Grey's deb. 133, ] arrested, on mense process,
any civil suit. 3d, Nor be detained under execution, though levied before 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 the 10 G. 3. c. 50, which permits judiciary proceedings to go on against them. That these privileges must be continually progressive seems to result from their rejecting all definition of them; the doctrine being that their dignity and independence are preserved by keeping their privileges indefinite;' and that the maxims upon which they proceed, together with the method of proceeding, rest entirely in their own breast, and are not defined and ascertained by
any particular stated laws.' [1 Blackst. 163, 164. ] Const. U.
While privilege was understood in England to extend, as it does here, 8. sec. 6, p. only to exemption from arrest eundo, morando, et reuendo, † the House
of Commons themselves decided that a convenient time was to be understood.' (1580.) [1 Hats. 99, 100.] Nor is the law so strict in
* And compelled to give bail. † For the necessary time of going to remaining at, and returning from,
Const. U. S. Art. 1, Sec. 6, p. 13.
point of time as to require the party to set out immediately on his return, but allows him time to settle his private affairs and to prepare for his journey; and does not even scan his road very nicely, nor forfeit his protection for a little deviation from that which is most direct; some necessity, perhaps, constraining him to it. [2 Stra. 986, 987. ]
This privilege from arrest, privileges of course against all process the disobedience to which is punishable by an attachment of the person; as a subpoena ad respondendum, or testificandum,* or a summons on a jury, and with reason; because a member has superior duties to perform in another place.
Privilege from arrest takes place by force of the election; and before a return be made, a member elected may be named of a committee, and is to every intent a member, except that he cannot vote until he is
[ Memor. 107, 108. Dewes, 642, col. 2, 643, col. 1. Pet. miscel. parl. 119. Lex. Parl. c. 23. 2 Hats. 22, 62. ]
Every man must, at his peril, take notice who are members of either house returned of record. [Lex. Parl. 23, 4. inst. 24. ]
On complaint of a breach of privilege, the party may either be summoned, or sent for in custody of the serjeant. [1 Grey, 88, 95. ]
The privilege of a member is the privilege of the House. If the member waive it without leave, it is a ground for punishing him, but cannot in effect waive the privilege of the House. [ 3 Grey, 140, 222. ]
For any speech or debate in either house, they shall not be questioned in any other place. [S. P. Protest of the Commons to James I. 1621. 2 Rapin, No. 54, pp. 211, 212. ] But this is restrained to things done in the House in a parliamentary course. [1 Rush. 663. ] For he is not to have privilege contra morem parliamentarium, † to exceed the bounds and limits of his place and duty. [ Com. p. ]
If an offence be committed by a member in the House, of which the House has cognizance, it is an infringement of their right for any person or court to take notice of it, till the House has punished the offender, or referred him to a due course. [Lex. Parl. 63. ]
Privilege is in the power of the House, and is a restraint to the proceeding of inferior courts ; but not of the House itself. [2 Nalson, 450. 2 Grey, 399. ] For whatever is spoken in the House is subject to the censure of the House; and offences of this kind have been severely punished by calling the person to the bar to make submission, committing him to the tower, expelling the House, &c. [ Scob. 72. L. Parl. c. 22.]
It is a breach of order for the Speaker to refuse to put a question which is in order. [2 Hats. 175, 6. 5 Grey, 133. ]
And even in cases of treason, felony, and breach of the peace, to which privilege does not extend as to substance, yet in Parliament a member is privileged as to the mode of proceeding. The case is first to be laid before the House, that it may judge of the fact, and of the grounds of the accusation, and how far forth the manner of the trial may concern their privilege. Otherwise it would be in the power of other branches of the government, and even of every private man, under pretences of treason, &c., to take any man from his service in the House, and so as many, one after another, as would make the House what he pleaseth. [Dec. of the Com. on the King's declaring Sir John Hotham à traitor. 4 Rushw. 586. ] So when a member stood indicted
Const. U. S. Sec. 6.
* A summons for answering or testifying.
+ Contrary to Parliamentary custom.
of felony, it was adjudged that he ought to remain of the House till conviction. For it may be any man's case, who is guiltless, to be accused and indicted of felony, or the like crime.
[ 23 El. 1580. D'Ewes. 283, col. 1. Lex. Parl. 133. ]
When it is found necessary for the public service to put à member under arrest, or when, on any public inquiry, matter comes out which may lead to affect the person of a member, it is the practice immediately to acquaint the House that they may know the reasons for such a proceeding, and take such steps as they think proper. [2 Hats. 259. ] Of which see many examples. [Ib. 256, 257, 258. ] But the communication is subsequent to the arrest. [1 Blackst. 167. ]
It is highly expedient, says Hatsell, for the due preservation of the privileges of the separate branches of the legislature, that neither should encroach on the other, or interfere in any matter depending before them, so as to preclude, or even influence that freedom of debate, which is essential to a free council. They are, therefore, not to take notice of any bills or other matters depending, or of votes that have been given, or of speeches which have been held, by the members of either of the other branches of the legislature, until the same have been communicated to them in the usual parliamentary manner. . [2 Hats. 252. 4 Inst. 15. Seld. Jud. 53. ] Thus the king's taking notice of the bill for suppressing soldiers depending before the House; his proposing a provisional clause for a bill before it was presented to him by the two Houses ; his expressing displeasure against some persons for matters moved in Parliament during the debate and preparation of a bill, were breaches of privilege; [ 2 Nalson, 743, ] and in 1783, December 17, it was declared a breach of fundamental privileges, &c., to report any opinion, or pretended opinion of the king, on any bill or proceeding depending in either House of Parliament, with a view to influence the votes of the members. [2 Hats. 251, 6. ]
Const. U. S. Art. 1. Sec. 5.
In general, the chair is not to be taken till a quorum for business is present; unless, after due waiting, such a quorum be despaired of, when the chair may be taken, and the House adjourned. And whenever, during business, it is observed that a quorum is not present, any member may call for the House to be counted, and being found deficient, business is suspended. [2 Hats. 125, 126. ]