In the gradual establishment of parliamentary government in England the customary methods of doing business by the two houses have resulted in rules of procedure which constitute a common law of parliament, and are recognized and enforced as obligatory. These rules supplement the written laws of parliamentary procedure much as the general common law of the land supplements the general statutes. At the same time certain privileges necessary to the proper independence of the legislature and to the free and unobstructed discharge of legislative duties have also become established, which are defined by the same customary law, and evidenced by parliamentary precedents. Among the most important of these privileges is that of each house to judge of the election and qualification of its own members. The house of commons cannot therefore intermeddle with questions concerning the election or qualification of Irish or Scotch peers, neither will it permit the house of lords to question its own action in the admission or rejection of those claiming seats therein.
Until the accession of the house of Stuart to the throne it was not very definitely settled what authority, if any, the executive had to prescribe the qualifications of members to the lower house, or to judge of the returns; but James I. having undertaken by the writs issued for his first parliament to exclude bankrupts and outlawed persons, the house insisted upon its own right in the premises as being ample and exclusive, and admitted Sir Francis Goodwin, who had been outlawed in civil proceedings, and whom for that reason the sheriff had refused to return. Although the controversy with the king that sprung up in consequence was finally determined by a compromise, the case is regarded as having settled the right beyond dispute. Another privilege is that of the members to exemption from arrest or detention on the process of courts during attendance upon its sessions, and for a reasonable time before and after the session for going to and returning from the same. This privilege extends to all civil process including subpoenas ad testificandum, and to all criminal process except on charges of treason, felony, or breach of the peace.
Another privilege is that of complete exemption of the members from being questioned elsewhere for words uttered in debate or as members of committees in the discharge of their duties. This, like the last, is the privilege not of the individual members alone, but of the house itself; and any violation of it, whether by means of judicial process or by lawless violence, may be punished as a contempt of the house. Each house has also a right to judge of its own privilege, and in general its decision must be final, though it is quite possible that parliament, like any judicial tribunal, even the highest, may so clearly exceed its jurisdiction that its process may be treated as a nullity. Such a case was adjudged to have arisen a few years ago, when the house of commons proceeded to punish sheriffs as for contempt in executing the process of courts in a suit brought against its printer for an alleged libel. The libel was contained in a report made to the house, and that body insisted upon its right to cause its publication, and to protect those who should make it in obedience to its order.
The courts, however, denied that the publication of a libel could be justified on the order of the house, and discharged the sheriff from custody; but an act was at once passed which established the privilege the house had insisted upon. The English courts have also held that though a member was privileged in his utterances in the house, yet if his speech was libellous and he afterward published it for general distribution, this publication was not privileged. Another privilege of each house is to protect itself against anything calculated to impede or disturb the regular course of legislation. Disorder during one of the sessions might be such an impediment, and so might be the attempt to bribe a member, or to influence his action by threats. So also might be the refusal of a witness to give evidence before a committee, or the divulging by a member of any of the secrets of the house in violation of its injunctions, or an attempt to influence the action of the house by reporting the opinion Or pretended opinion of the executive on any measure or proceedings pending therein. To enumerate all the privileges of parliament is something it has never attempted for itself.
Blackstone says: " Privilege of parliament was principally established in order to protect its members not only from being molested by their fellow subjects, but also more especially from being oppressed by the power of the crown. If therefore all the privileges of parliament were once to be set down and ascertained, and no privilege to be allowed but what was so defined and determined, it were easy for the executive power to devise some new case, not within the line of privilege, and under pretence thereof to harass any refractory member, and violate the freedom of parliament." And these privileges can only be preserved intact by ample authority in parliament to punish all breaches thereof under its own regulations and by the aid of officers subject to its own exclusive control. - The customary law of parliament has been tacitly adopted in this country, and its leading rules and principles were embodied and illustrated in a manual by Mr. Jefferson, prepared by him while presiding officer of the senate, and which has been a standard authority ever since, though in a measure superseded by the more elaborate work of Mr. L. S. Gushing on the " Law and Practice of Legislative Assemblies." So much importance is attached to legislative privileges in this country, and so imperative the necessity to protect them against encroachments from any quarter, that the leading privileges are usually declared by constitution; but without such declaration all customary privileges are covered by the constitutional principle which recognizes and protects the independence of each department of the government within the sphere of its proper action. - Without express adoption, the congressional rules of order and procedure are understood as in force for all deliberative bodies, except as changed by their own voluntary action or other competent legislation.
Even political conventions and voluntary associations of every nature, when acting as organized bodies, are expected to recognize and obey the same rules, unless provided with a code of their own. Thus in an American assembly having no special rules for conducting business, the motion to adjourn would be undebatable as in congress, notwithstanding the English parliamentary law to the contrary; 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. An assembly should be organized by the election of at least two officers: 1, a chairman or president, whose duty it is to preside, to announce the business in its order, to state and put all questions properly brought before the assembly, and to preserve order and decorum and decide all questions of order (subject to an appeal), and who can vote in case of a ballot or where his vote would affect the result; 2, a clerk or secretary, whose duty it is to keep the record of the proceedings and to have the custody of all papers in the possession of the assembly.
It is a common practice in political meetings to organize temporarily, and then refer the subject of permanent organization, selection of officers, etc, to a committee, upon whose report the meeting organizes. It is not unusual to elect one or more vice presidents and several secretaries. In some legislative bodies, as the senate of the United States and some of the state senates, the presiding officer is not a member; in others, as the national house of representatives and the senate of Massachusetts, he is chosen by and from among the members. A quorum of members is necessary to the transaction of business. The number requisite to a quorum is usually fixed by law; if not, a majority of the members of the assembly is essential. Business is brought before the assembly either by a communication to it or by a motion of a member. In order to make a motion, it is necessary for the member to rise and address the chairman by his title, and for the chairman to recognize him, which is usually done by announcing his name; if required by the chairman, the motion must be in writing.
When made it must be seconded by another member to entitle it to any notice; when it is seconded, the chairman states the question to the assembly, and it is then formally before the body to be disposed of as they see fit. In order to dispose of the question properly, various motions have come into use, which can be classified as follows: 1. To modify. If it is desired to modify the question in any way, the proper motion to make is to amend either by adding words, by striking out, or by striking out certain words and inserting others, or by substituting a different motion on the same subject, or by dividing the question into two or more questions which the mover specifies, so as to get a separate vote on any particular point. When this motion to amend has been made, seconded, and stated by the chairman, it takes the place for the time being of the original question, and debate must be confined to its merits. This amendment can itself be amended, but the amendment of an amendment cannot be amended.
If the original question needs more amendment than can well be made in the assembly, it is then moved to refer it to a committee, and this motion can be made even while an amendment is pending.
When it is desired to defer action upon the question till a particular time, a motion is made to postpone the question to that time; it can be made when either of the previous motions is pending, and can be amended by altering the time. A motion that a question lie on the table is used when it is desired to lay the question aside temporarily and at the same time retain the privilege of taking it up at any moment. This motion is frequently used to destroy or " kill" a measure when it is known that a sufficient vote cannot be obtained to take it up during that session. It can be made when any of the previous motions are pending.
The usual method of stopping debate is for a friend of the measure to call for the previous question, which if ordered brings the assembly at once to a vote on the questions before it, in their order, until the main question is finally disposed of. If any one of the following motions is pending, the previous question is exhausted by the vote on it, and does not cut off debate on any other motion that may be pending, viz.: to postpone to a certain time, to postpone indefinitely, to reconsider, and an appeal. The chairman states this question as follows: " Shall the main question be now put?" If it fails, the debate continues. Other methods of stopping debate are to adopt motions limiting the time allowed each speaker or the number of speeches on each side, or to appoint a time at which debate must cease and the question be put. In ordinary societies, where harmony is important, a two-thirds vote is usually required for the adoption of any of the above motions to cut off debate.
As soon as a motion is introduced, before it has been debated, and only then, any member can object to the consideration of the question; this requiring no second, the chairman instantly puts the question, "Will the assembly consider it?" or, "Shall the question be discussed?" and if negatived the question is dismissed for the session. In ordinary meetings whose sessions are short, and where but few subjects can be considered, this motion is necessary to suppress irrelevant, useless, or contentious questions. But it should require a two-thirds vote to suppress a question without debate. In congress the question is put as follows: "Will the house now consider it?" and a negative vote dismisses the question for the time. The motion to postpone indefinitely is the usual one to suppress a question for the whole session, and the only one available after the question has been debated. It cannot be made while any motion is pending except the original or main question, and yields to all other motions mentioned except to amend.
A motion to lay on the table is often used for this purpose, and, if there is no possibility of obtaining during the session a sufficient vote to take it from the table, it is the preferable one because of its high rank and its being un-debatable.
When a question has been once adopted, rejected, or suppressed, it cannot be again considered in the same session except by a motion to reconsider; and this motion can only be made by one who voted on the prevailing side and on the day the vote was taken which it is proposed to reconsider. In congress it can be made on the next day, and if the yeas and nays were not taken on the vote it can be made by any one. It can be made and entered on the record in the midst of debate, even when another member has the floor; but it cannot be considered until there is no question before the assembly, when, if called up, it takes precedence of every motion except to adjourn and to fix the time to which to adjourn. The rule prohibiting the renewal of a motion does not apply to the motion to adjourn, which can be renewed if there has been mere progress in debate. The subsidiary motions already described can be again introduced if the question has changed in either matter or form.
If the assembly has directed that certain questions shall be considered at a certain time, when that time arrives any member can call for the order of the day; and as it requires no second, the chairman must at once put the question whether the assembly will now take up the order of the day; if it is carried, the subject under consideration is laid aside, and the questions appointed for that time are taken up in their order. But where there is a rule adopted, it must be enforced by the chairman without any question, and a motion to suspend the rules for a particular purpose must be adopted by a two-thirds vote in order to allow that particular thing to be done if it conflicts with the rules. It is the duty of the chairman to announce the business in its order, to enforce the rules, and preserve order; and when any member notices a violation of order, he can call for the enforcement of the rules. While in all such cases the chairman first decides the question, any member can appeal from his decision; and if the appeal is seconded, the chairman states the question thus*: " Shall the decision of the chair stand as the judgment of the assembly?" The chairman can speak to the question without leaving the chair, which is prohibited in all other cases.
If a speaker wishes to read a paper, or a member to withdraw his motion after it has been stated by the chair, it is necessary, if any one objects, to make a motion to grant permission.
If it is desired to have an adjourned meeting of the assembly, it is best some time before its close to move to fix the time to which the assembly shall adjourn. The question is of this form: " That when this assembly adjourns, it adjourn to meet," etc., specifying the time. A motion to amend by altering the time can be made. This motion takes precedence of all others. When it is desired to close the meeting, a member moves to adjourn, which, if unqualified, takes precedence of every motion but the preceding one. - Debate must be confined to the question before the assembly, the remarks being always addressed to the chairman and personalities avoided. The following motions are undeba-table, and excepting the first one they, together with the motion to postpone indefinitely, cannot be amended: to fix the time to which to adjourn; to adjourn, when unqualified; a call for the order of the day; questions relating to the priority of business, or withdrawing a motion, or reading papers, or suspending the rules; an appeal, if it relates merely to indecorum or transgressions of the rules of speaking, or if made while the previous question is pending; an objection to the consideration of a question; to lay on the table, and to take from the table; the previous question; and to reconsider a question which is itself undeba-table. All other questions are debatable, but debate is very limited on the motion to postpone to a certain time, being confined to the propriety of the postponement; while on the other hand the motions to commit, to postpone indefinitely, and to reconsider a debatable question, open for discussion the entire merits of the original question. - In regard to precedence, the ordinary motions rank as follows, and any motion, except to amend, can be made while one of a lower order is pending, but none can supersede one of a higher order: to fix the time to which to adjourn; to adjourn, when unqualified; a call for the order of the day; to lay on the table; the previous question; to postpone to a certain time; to commit, amend, or postpone indefinitely.
The privilege of a reconsideration has been explained under that motion. The other motions are incidental to any question, and take precedence of and must be decided before the questions which gave rise to them. - In order to facilitate business, it is customary in all deliberative assemblies to form committees, whose duty it is to consider and report upon the subjects referred to them. The members are usually appointed by the presiding officer, but are sometimes elected by the assembly. Sometimes the assembly resolves itself into a committee of the whole for the consideration of a particular subject. In this case the chairman is usually named by the presiding officer of the assembly, but he may be chosen by the committee. - In the ordinary course of legislation in congress, a bill is introduced into the house of representatives or senate, on the report of a committee, or on motion for leave by a member after having given at least one day's notice. It must then be read three times on as many different days, unless it is otherwise specially ordered. Usually, however, the second reading immediately follows the first, it being taken for granted that it is by special order.
After the second reading the merits of the bill are usually discussed, and it is determined whether it shall be referred to a committee, amended, or engrossed. If ordered to be engrossed, a day is appointed for the third reading. Having been read a third time, the question is whether the bill shall be passed. The second and third readings are commonly effected by simply reading the title. If the bill pass, it is certified by the clerk and sent to the other house. Having been passed by that body, it is enrolled on parchment, examined by a • joint committee of two from each house, signed by the speaker of the house and the president of the senate, presented to the president of the United States, and upon receiving his signature becomes a law. If it is vetoed, it is returned to that house in which it originated, and by receiving a two-thirds vote of each house will become a law without the executive approval. If not returned by the president within ten days (Sundays excepted) after presentation to him, it becomes a law, unless congress by adjournment prevent its return.
The procedure in regard to the progress of a bill is generally the same in the state legislatures. - See Oushing's "Manual" (1847); "Digest of Rules and Practice of the House of Representatives of the United States," by I. M. Barclay (1868); "Digest of Parliamentary Law," by O. M. Wilson (1869); " The Pocket Manual of Rules of Order for Deliberative Assemblies," by H. M. Robert (1875); and "Warrington's Manual," by W. S. Robinson (Boston, 1875).