Parliamentary Law refers originally to the customs and rules of conducting business in the English Parliament; and thence to the customs and rules of our own legislative assemblies. In England these customs and usages of Parliament form a part of the unwritten law of the land, and in our own legislative bodies they are of authority in all cases where they do not conflict with existing rules or precedents.
But as a people we have not the respect which the English have for customs and precedents, and are always ready for innovations which we think are improvements, and hence changes have been and are being constantly made in the written rules which our legislative bodies have found best to adopt. As each house adopts its own rules, it results that the two houses of the same legislature do not always agree in their practice; even in Congress the order of precedence of motions is not the same in both houses, and the Previous Question is admitted in the House of Representatives, but not in the Senate. As a consequence of this, the exact method of conducting business in any particular legislative body is to be obtained only from the Legislative Manual of that body.
The vast number of societies, political, literary, scientific, benevolent and religious, formed all over the land, though not legislative, are still deliberative in their character, and must have some system of conducting business, and some rules to govern their proceedings, and are necessarily subject to the common parliamentary law where it does not conflict with their own special rules. But as their knowledge of parliamentary law has been obtained from the usages in this country, rather than from the customs of Parliament, it has resulted that these societies have followed the customs of our own legislative bodies, and our people have thus been educated under a system of parliamentary law which is peculiar to this country, and yet so well established as to supersede the English parliamentary law as the common law of ordinary deliberative assemblies.
The practice of the National House of Representatives should have the same force in this country as the usages of the House of Commons have in England, in determining the general principles of the common parliamentary law of the land; but it does not follow that in every matter of detail the rules of Congress can be appealed to as the common law governing every deliberative assembly. In these matters of detail, the rules of each House of Congress are adapted to their own peculiar wants, and are of no force whatever in other assemblies.
But upon all great parliamentary questions, such as what motions can be made, what is their order of precedence, which can be debated, what is their effect, etc., the common law of the land is settled by the practice of the U. S. House of Representatives, and not by that of the English Parliament, the U. S. Senate, or any other body.
While in extreme cases there is no difficulty in deciding the question as to whether the practice of Congress determines the common parliamentary law, yet between these extremes there must necessarily be a large number of doubtful cases upon which there would be great difference of opinion, and to avoid the serious difficulties always arising from a lack of definiteness in the law, every deliberative assembly should imitate our legislative bodies in adopting Rules of Order for the conduct of their business.* [Where the practice of Congress differs from that of Parliament upon a material point, the common law of this country follows the practice of Congress. Thus in every American deliberative assembly having no rules for conducting business, the motion to adjourn would be decided to be undebatable, as in Congress, the English parliamentary law to the contrary notwithstanding; so if the Previous Question were negatived, the debate upon the subject would continue as in Congress, whereas in Parliament the subject would be immediately dismissed; so too the Previous Question could be moved when there was before the assembly a motion either to amend, to commit, or to postpone definitely or indefinitely, just as in Congress, notwithstanding that, according to English parliamentary law, the Previous Question could not be moved under such circumstances. When the rules of the two Houses of Congress conflict, the H. R. rules are of greater authority than those of the Senate in determining the parliamentary law of the country, just as the practice of the House of Commons, and not the House of Lords, determines the parliamentary law of England. For instance, though the Senate rules do not allow the motion for the Previous Question, and make the motion to postpone indefinitely take precedence of every other subsidiary motion [§ 7] except to lie on the table, yet the parliamentary law of the land follows the practice of the House of Representatives, in recognizing the Previous Question as a legitimate motion, and assigning to the very lowest rank the motion to postpone indefinitely. But in matters of detail, the rules of the House of Representatives are adapted to the peculiar wants of that body, and are of no authority in any other assembly. No one for instance would accept the following H. R. rules as common parliamentary law in this country: That the chairman, in case of disorderly conduct, would have the power to order the galleries to be cleared; that the ballot could not be used in electing the officers of an assembly; that any fifteen members would be authorized to compel the attendance of absent members and make them pay the expenses of the messengers sent after them; that all committees not appointed by the Chair would have to be appointed by ballot, and if the required number were not elected by a majority vote, then a second ballot must be taken in which a plurality of votes would prevail; that each member would be limited in debate upon any question, to one hour; that a day's notice must be given of the introduction of a bill, and that before its passage it must be read three times, and that without the special order of the assembly it cannot be read twice the same day. These examples are sufficient to show the absurdity of the idea that the rules of Congress in all things determine the common parliamentary law.]