LAW AND PRACTICE OF LEGISLATIVE ASSEMBLIES. ),i - Kim IC ~i;"" T x a I i a m I U t a t i a - r i r a u a. I 1( ELEMENTS OF THE LAW AND PRACTICE OF LEGISLATIYE ASSEMBLIES IN THE UNITED STATES OF AMERICA. BY LUTHER STEARNS CUSHING. BOSTON: LITTLE, BROWN AND COMIPANY. 1 85 6. g /fij Entered according to Act of Congress, in the year 1856, by LUTHER S. CUSHING, In the Clerk's Office of the District Court of the District of Massachusetts. CA Mi BRIDGE: ALLEN AND FARNHAM, STEREOTYPERS AND PRINTERS. ROBERT CHARLES WIINTHROP, LL. D. TO THE HONORABLE WHO WAS, FOR MANY YEARS, SPEAKER OF THE HOUSE OF REPRESENTATIVES OF MASSACHUSETTS; AND WHO, AFTERWARDS, AS SPEAKER OF -THE IIOUSE OF REPRESENTATIVES OF THE UNITED STATES, FOR THIE TIIIRTIETII CONGRESS, PERFORMED THE DUTIES OF THAT OFFICE WITH SINGULAR ABILITY; THIS VOLUME IS HUMBLY DEDICATED AS A TESTIMONIAL OF RESPECT AND AFFECTION BY THE AU T H OR. I i t if ADVERTISEMENT. TIRE intelligent reader of history needs scarcely to be informed, that all the principles of civil liberty which now bear so abundant fruit, at least, in this country, first germinated in, or were introduced into, the British Parliament, especially the House of Commons; and this circumstance has furnished an almost irresistible temptation to indulge in political disquisition; but I have resolutely abstained from every thing like it in the following pages, and have confined myself to a statement of the law and practice of parliament as a matter of fact merely. In compiling the following work, I have endeavored to present the American reader with as much of the law and practice of parliament, as could, by any possibility, be useful, either as illustration or authority, to the members who compose our legislative assemblies. The reader of the following pages, who is acquainted'with the science of parliamentary law, only as it is set forth in the brief manuals hitherto published in this country, or the small English treatises "published in the seventeenth century, will, doubtless, be astonished to find it so copious; while those who are more familiar with the voluminous collections of the debates and journals of Parliament and of Congress, will be equally astonished to find that the science of parliamentary law can be compressed into so small a compass. Sir Edward Coke, who had been speaker of the House of Com (vii) ADVERTISEMENT. mons in one of Queen Elizabeth's parliaments, says, in his Fourth Institute, when discoursing of the high court of parliament, that "as every court of justice has laws and customs for its direction, some by the common law; some by the civil and canon law; some by peculiar laws and customs; so the high court of parliament subsists by its own laws and customs; that it is the law and custom of parliament, that all weighty matters therein concerning the peers of the realm or commons, ought to be determined, adjudged, and discussed, according to the course of parliament, and not by the civil law, nor yet by the common law used in the more inferior courts;" and, quoting from Fleta, a much more ancient author, he adds, in the margin, Ista lex ab omnibus est quaerenda, a multis igiworata, a paucis cognita. If this remark was a statement of fact, merely, it was not only true at the time it was uttered, but it is doubtless true at the present day; the law of parliament, though diligently sought by all, being still unknown to many, and known only to a few. It was, however, the enunciation of a principle, probably in relation to the matter of privilege, and was made and repeated at a time when the law and custom of parliament was what each house saw fit to make it, and when the proceedings of parliament were conducted with closed doors and in secret, and were not known, in fact, or supposed to be so, until they were officially promulgated; for which reason, the judges, Sir Edward Coke says, ought not to give any opinion of a matter of parliament. But it is no longer true as it was in the time o)f Sir Edward Coke, that the law of parliament is vague and uncertain. It is' now a branch of the common law and as well settled as any other; and it may be known and determined beforehand, with, at least, as much facility and certainty, as any other part of the civil or criminal law. Of this vast and comprehensive topic, thus brought within the domain of science, it is proposed, in the following pages, to treat of that part only which belongs to the two houses' of parliament, irrespective of any orders of either house, except those which embody their law and practice. viii *b ADVERTISEMENT. The subject of this work is what may be denominated the common parliamentary law as modified in our legislative assemblies. The common parliamentary law of this country consists of the following elements: - 1. The law of parliament, or that which belongs to every legislative assembly of English origin, by the mere fact of its creation. The best evidence of this is to be found in the usages of the house of commons. In this country, it is common for each assembly, besides the common parliamentary law, to be governed by its own rules and orders. 2. Usages introduced by practice into this country, and which do not depend for their existence upon any rule or order. The most prominent if not the only proceeding of this kind is the motion to reconsider. This motion is usually regulated in each assembly by a special rule. 3. Proceedings, which occasionally take place in parliament, but are in frequent use in this country. An appeal from the decision of the presiding officer, on a point of order, is of this kind. 4. Modifications introduced by constitution. The most common provision of this sort is the requisition that certain questions shall be taken by the yeas and nays of the members. A very frequent provision of the same kind is, that every assembly shall be governed by its own rules and orders. 5. Proceedings, which very commonly prevail, and which depend, for their existence, upon the rules and orders of each assembly, and which would not exist unless specially provided for by rules and orders for the purpose. Thus, it is generally established, in our legislative assemblies, that certain motions shall be decided. without debate; that motions may be withdrawn, modified, or divided, at the pleasure of the mover; and that amendments shall be in, harmony with the proposition to be amended. In the execution of this plan, I have consulted,-besides the works on the general subject, Hackwvill, Scobell, and Elsyng, published about the middle of the seventeenth century; the work of Pettyt, published towards the close of the seventeenth century; and that of Hatsell, the first edition of which was published towards the: ADVERTISEMENT. close of the eighteenth; and the scientific treatises of Mr. May, recently published;- the Journals of the Lords and Commons; the various works on controverted elections; and the debates in the two houses of parliament from the earliest to the latest times. Of the earlier debates, down to the year 1803, there are two principal series. The first consists of Sir Symonds D'Ewes's journals of Queen Elizabeth's parliaments; the first volume of the journals of the commons, during the parliaments of James First and Charles First; Grey's Debates, after the restoration, in ten volumes; Commons and Lords' Debates; Parliamentary Register, of which there are two series; Debates in Parliament, and the Cavendish Debates, of which three numbers only have been published. The second series is contained in Hansard's Parliamentary His tory, extending from the earliest times to the year 1803. The former has been more frequently referred to, as the latter, for the most part, omits points of order. Hansard's, sometimes called Cobbet's, Parliamentary Debates, extend in three series, from about the year 1803, to the present time. The series is indicated in each case by its number. I have consulted for the American practice, the Journals and Debates in the two Houses of Congress. The Journals and Debates of the Congress of the Confederation hate also been consulted for the same purpose. The Journals of the first thirteen congresses, having been reprinted, are cited by the number indicating the volume; those of the fourteenth, and succeeding congresses, are referred to by the congress and session. The references to all these works, and to several others of a legal or miscellaneous character,, will be readily known, and need not be particularly described. The only scientific treatises on parliamentary law, recently published, are those of Mr. May, whose larger work has lately reached its third edition. Whenever it is cited in the following treatise, without an indication of the edition, the second is always referred to. His smaller work, on the rules and orders of the House of Comnions, is one of the best summaries that I have ever seen. Mr. Jefferson's Manual, which has been so frequently republished, has been consulted, and freely used, both as regards the parliamentary x ADVERTISEMENT. law of England and the changes which it has undergone in this country. I commenced accumulating materials for this work, and began the writing of it many years ago, and might have been longer in bringing it to a close; but, admonished by ill and uncertain health, that if I would make sure of benefiting my fellow-countrymen, in this respect, I must terminate the work speedily, I have made what haste I could, consistently with the leisure afforded me from other pursuits. I do not mention this in order to deprecate criticism. The book has been prepared according to its original plan, and is now presented to the public, in the style in which it was proposed. I can, however, say with Mr. Jefferson" in the preface to his Manual: -" 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... the effects of which.may be accuracy in business, economy of time, order, uniformity, and impartiality." The references, which are over four thousand in number, and might have been almost indefinitely increased, are. not, in all cases, available as direct authority for the positions to which they are cited. In such cases, they indicate merely where the same or a similar subject is treated of. With the exception of those to the Journals of the Lords and Commons, the references are chiefly made, not from the books themselves, but from extracts or digests made by me or under my immediate direction; it is probable, there fore, that if the passage referred to is not found at the page cited, it will be on an adjoining page. The work is divided into nine parts, each of which is distinct by itself; and this division is not only natural and scientific in its character, but will also enable the reader, by means of the titles pre fixed to the several parts, to turn to and examine any particular subject, without the labor of going over the whole. The author of the Lex Parliamentaria, in the conclusion of his treatise, addresses himself to the people of Great Britain, in lan guage which is equally applicable to the people of the United States, namely: " There is nothing that ought to be so dear to the Commons of Great Britain, as a Free Parliament, that is, a xi ADVERTISEMENT. House of Commons every way free and independent;... free in their persons;'free in their estates; free in their elections; free in their returns; free in their assembling; free in their speeches, debates, and determinations; free to complain of offenders; free in their prosecutions for offences; and therein free from the fear or influence of others, how great soever; free to guard against the encroachments of arbitrary power; free to preserve the liberties and properties of the subject, and yet free to part with a share of those properties, when necessary for the service of the public." L. S.C. BOSTON, May 1, 1856. x*l TABLE OF CONTENTS. PAGE 1-5 PRELLMINARY PART FIRST. OF THE ELECTION OF THE MEMBERS. CHAPTER FIRST. OF CONSTITUENCIES. CHAPTER SECOND. OF THE PERSONS COMPETENT TO BE ELECTORS. SECTION I. Of persons excluded by the common political law from the right of suffrage.............. I. Of the constitutional qualifications requisite for the exercise of the right of suffrage......... 1. Citizenship............ 2. Freedom......... 3. Residence........ 4. Property............. 5. Payment of a tax....... 6 to 12. Other qualifications......... . 9-12 13-16'. 16-20, 17 1 7' 1 7' 20 20, 20 b (Xiii) CONTENTS. SECTION III. Of disqualifications for the exercise of the right of suffrage 20-23 1. Paupers............ 21 5. Persons convicted of certain crimes.... 21 ,s~ ~ 6. Persons of color..........22 2, 3, 4, 7. Other disqualifications.......23 CHAPTER THIRD. OF THE PERSONS COMPETENT TO BE ELECTED. SECTION I. Of qualifications and disqualifications by the common politi cal law............. II. Of qualifications expressly required..... IIL Of disqualifications expressly declared..... 1. Disqualifying offices or employments. 2. Personal disqualifications...... CHAPTER FOURTH. OF THE MODE OF ELECTION. SECTION I. Of the right to vote..................... II. Of the different modes of voting....... 1. Oral suffrage......... 2. Ballot..........., IlL Of the principle upon which the result of an election is de termined.......... 1. Plurality........ 2. Majority......... 3. Origin and introduction of the majority principle. CHAPTER FIFTH. OF THE RETURN OF THE PERSONS ELECTED. CHAPTER SIXTH. OF CONTROVERTED RETURNS AND ELECTIONS. SECTION I. Of the tribunal and mode of proceeding.... 54-64 II. Of rights of membership, as affected by the form or substance of the return.............. 64 III. Of elections of, and votes given for, disqualified persons. 66 IV. Of elections as affected by proceedings injurious to the free dom of election............. 67-71 1. Riots..............68 2. Bribery..............68 xiv 24-26 26-30 30-33 31 32 34-36 36-43 37 39 43-48 44 45 47 . 49-52 CONTENTS. SECTION V. Of elections as affected by the qualifications and conduct of the returning officers.......... PART SECOND. OF THE CONSTITUTION OF A LEGISLATIVE ASSEMBLY. CHAPTER FIRST. OF THIE ASSEMBLING, QUALIFYING, AND ORGANIZING OF A LEGISLATIVE ASSEMBLY. SECTION I. Preliminary proceedings in the house of commons in Eng land......... . II. Preliminary proceedings in the legislative assemblies of th United States........... III. Quorum......... IV. Compelling attendance of absent members. V. Organization........ CHAPTER SECOND. OF THE OFFICERS OF A LEGISLATIVE ASSEMBLY. Presiding officer.. Recording officer.. Executive officer.. Chaplain.... Printer.... CHAPTER THIRD. OF THE PLACE AND MANNER OF SITTING OF A LEGISLATIVE ASSEMBLY, AND OF THE FORMAL PROCEEDINGS THEREIN FOR THE TRANSACTION OF BUSINESS. TN I. Place and manner of sitting.......... 136-145 II. Opening, continuation, and close, of the daily sitting. 145-151 III. Personal deportment of the members, whilst the assembly is sitting.............. 152 IV. Manner of speaking........... 153-1'55 xv 71-77 82-86 86-94 94-101 . 101-103 103-109 SECTIO-W 1. II. III. IV. V. . 110-127 .. 128-133 133 134 .. 135 SECTI CONTENTS. SECTION V. Of the several forms of taking the question, in order to ascertain the sense of a legislative assembly.... 155-167 VI Of the principle or rule of decision in a legislative assem bly......... VII. Of the journal or record of the proceedings.. VIII. Of the printing by order of a legislative assembly. IX. Of the attendance and pay of the members.. CHAPTER FOURTH. OF THE FUNCTIONS OF THE EXECUTIVE IN CONNECTION WITH THE LEGISLATIVE DEPARTMENT............ 182-186 CHAPTER FIFTH. OF VACANCIES, AND ELECTIONS TO FILL TIIEM. Refusal to accept....... Refusal to qualify........ Resignation........ Expulsion........ Adjudication of a controverted return and election Death.......... Disqualification....... Acceptance of disqualifying or incompatible offices Of vacancies in the congress of the United States. CHAPTER SIXTH. OF THE SESSION, ADJOURNMENT, PROROGATION, ASSEMBLING BY PROCLAMA TION, AND DISSOLUTION OF A LEGISLATIVE ASSEMBLY. Session...... Adjournment..... Prorogation..... Assembling by proclamation Dissolution...... xvi 16 7 168-1 75 1 75-1 77 1 7 7-182 SECTION 1. IT. ill. iv. V. VI. I vii. Vill. ix. 192 193 193 1 93 194 194 195 195 . 196-200 SECTION I. . II. Ill. IV. V. . 200-206 206 ..207-209 209 210 CONTENTS. PART THIRD. OF THE PRIVILEGES AND INCIDENTAL POWERS OF A LEGISLATIVE ASSEMBLY. CHAPTER FIRST. OF THE GENERAL NATURE OF THE PRIVILEGES AND INCIDENTAl POWERS OF A LEGISLATIVE ASSEMBLY...... CHAPTER SECOND. OF THE PERSONAL PRIVILEGES OF THE MEMBERS. SECTION I. 224 226 229 233 235 assembly... II. Of proceedings by the authority of the court to which the process is returnable III. Of proceedings by the authority of some other competent tribunal.. Exemption from service as jurors or witnesses Freedom of debate and proceeding... Privilege of franking...... Personal disabilities incident to membership. CHAPTER THIRD. OF THE COLLECTIVE OR AGGREGATE PRIVILEGES OF A LEGISLATIVE ASSEMBLY. 1, 2. Elections; officers 3. Rules of proceeding xvii . 215-222 223-241 236 123 7 238 241 242-244 244 244 Ill. Ill. IV. V. 246 247 b * CONTENTS. Attendance and service of its members.. Secrecy of debates and proceedings. Expulsion or discharge of a member.. Protection against personal violence Protection against slanderous and libellous attacks. Protection against corruption... Right to be informed by public officers.. Right to require opinions of the judges. Right of investigation... Freedom from interference... CHAPTER.FOURTH. OF THE INCIDENTAL POWERS OF A LEGISLATIVE ASSEMBLY. SECTION I. Of the incidental jurisdiction of a legislative assembly. 1. Civil jurisdiction.... 2. Criminal jurisdiction... 3. Jurisdiction of contempts... II. Of the mode of proceeding by a legislative assembly, in the exercise of its judicial functions... 1. Civil proceedings... 2. Criminal proceedings... 3. Proceedings in case of contempt.. 265 III. In what manner the judgments of a legislative assembly are enforced...... 265 IV. Of the punishments which a legislative assembly may inflict 266-268 1. Fine...... 266 2. Imprisonment..... 267 3. Reprimand..... 268 4. Expulsion..... 268 V. In what manner and to what extent the incidental powers of legislative assemblies in the United States have been affected by constitutional and legal provisions.. 268-272 ART. I. Incidental powers relating to members. 269 II. Incidental powers relating to persons not members..... 270 xviii 4. 5. 6. 7. 8. 9. 10. ii. 12. 13. 247 250 .250 2r) 1 251 252 252 253 253 254 257-259 258 258 .259 260-265 260 262 CONTENTS. PART FOURTH. OF THE POWERS AND FUNCTIONS OF A LEGISLATIVE ASSEMBLY AS SUCH. CHAPTER FIRST. OF THE GENERAL POWERS OF A LEGISLATIVE ASSEMBLY IN THE MAKING OF LAWS SECTION I. Powers of the assembly as an aggregate body. 1. Legislative powers of parliament... 2. Legislative powers as restricted by constitutional pro visions in the United States.. II. Powers of the members individually.. CHAPTER SECOND. OF THE RELATION OF THE DIFFERENT BRANCHES OF THE LEGISLATIVE DEPARTMENT TO ONE ANOTHER. SECTION I. Of the good correspondence and harmony which ought to prevail between the different branches... II. Of the duty of each branch to facilitate the proceedings of the others..... III. Of the interference of any of the branches in the proceed ings of the others..... CHAPTER THIRD. OF THE EVIDENCE AND INFORMATION ON WHICH PARLIAMENTARY PROCEEDINGS ARE FOUIJNDED. SECTION I. Of the nature of the evidence upon which a parliamentary proceeding may be founded.. II. How the different kinds of evidence are applicable. III. Of the evidence of common fame... IV. Of the statemonts of members.. V. Of other sources of evidence.... xix 277-283 . 27 7 - 281 283-288 289 290 291 293 293 294 294 295 CONTENTS. CHAPTER FOURTH. OF THE FORMS IN WHICH T4IE POWER OF' LEGISLATION IS EXERCISED BY A LEGISLATIVE ASSEMBLY. SECTION I. Classification and description of the different kinds of bills. 297-302 1. Public bills..... 299 2. Private bills...... 300 3. Judicial bills..... 301 II. Of certain classes of laws which are withheld from the legis lative authority, or regulated by constitutional provisions 302-304 CHAPTER FIFTH. OF THE RULES OR LAWS BY WHICH TIIE PROCEEDINGS OF ASSEMBLY ARE REGULATED. SECTION I. General view of the forms and rules of proceeding. 304 II. Sources of parliamentary rules.... 306-311 I. Usages...... 306 II. Resolutions..... 306 III. Precedents...... 307 IV. Orders...... 308 1. Standing orders.... 309 2. Sessional orders.... 309 3. Occasional orders.... 310 V. Statutes...... 310 III. Of the rules by which legislative assemblies in this country are governed...... 311-313 IV. Of the forms in which the proceedings of a legislative assem bly are expressed...... 313-316 1. Motion or vote..... 313 2. Order...... 314 3. Resolution..... 314 4. Address...... 315 xx A LEGISLATIVE CONTENTS. PART FIFTH. OF COMMUNICATIONS BETWEEN THE DIFFERENT BRANCHES OF A LEGISLATIVE BODY, AND BETWEEN THEM OR EITHER OF THEM AND OTHER BODIES OF PERSONS. CHAPTER FIRST. OF COMMUNICATIONS BETWEEN THE TWO BRANCHES. SECTION I. Communications by message... II. Communications by conference.. III. Communications by committees... CHAPTER SECOND. OF COMMUNICATIONS BETWEEN THE TWO BRANCHES, OR EITHER OF THEM AND THE EXECUTIVE. SECTION 1. Of communications from the sovereign to the two houses or either of them............. 348-357 I. Communications by the sovereign in person, or by commissioners........... 349 II. Communications of the sovereign by message. 351 II. Of communications from the two houses, or either of them, to the sovereign............ 357-360 CHAPTER THIRD. OF ACCOUNTS, PAPERS, RETURNS, PRESENTED IN PURSUANCE OF OR DERS, OR IN OBEDIENCE TO ACTS OF PARLIAMENT... 360-369 CHAPTER FOURTH. OF WITNESSES, AND THEIR ATTENDANCE AND EXAMINATION BEFORE EITHER HOUSE OR COMMITTEES. SECTION I. Of the occasions on which an examination of witnesses may take place........... 369 II. Of the several modes of obtaining or compelling the attend ance of witnesses.......... 370-3 79 IlL. Of the examination of witnesses........ 379-395 -t xxi ..320-327 ... 32 7-34 7 .. 347 CONTENTS. SECTION IV. Of the privileges of witnesses...... ART. 1. Freedom from arrest, in coming, staying, and returning......... 1..L IUt ~5b~lUll * * * *,, 2. Discharge from arrest.. II. Protection of a witness against the conse quences of the disclosures made by him in his evidence....... III. Protection against abuse and insult, personal violence, and injury actual or threatened to person or property... 399 V. Of misconduct on the part of witnesses, or other persons, relative to their attendance and examination.. 400-404 VI. Of other matters relating to witnesses and their examination 404-406 CHAPTER FIFTH. OF HEARING PARTIES INTERESTED. Rights of members to their seats.... Infliction of punishment.. Inquiries respecting the conduct of public officers Bills of attainder and of pains and penalties. Private bills............ Public bills, and other measures of a public character CHAPTER SIXTH. PUBLIC OFFICERS SUBJECT TO THE ORDER OF THE ASSEMBLY. ON I. Returning officers............ II. Prosecution and punishment of offenders... III. Publishing or distributing the orders of the house. IV. Rendering assistance to the officers of the house. V. Preservation of the peace in the place where the parliament is sitting......... VI. Right of the house of lords to call on the judges to give their opinions on questions of law...... VII. Right to refer matters to public officers... CHAPTER SEVENTH. OF PETITIONS. SECTION I. Of the right of petition........... 432-439 II. Of petitions as to their form....... 439-449 ART. I. As to the material upon which, and the manner in which, a petition is to be written.. 439 xxii 395-400 395 395 396 1. Protection. 397 SF,CTION T. II. III. IV. V. Vi. 410 410 . - 411 411 ... 411 412 SECTI 417 418-425 425 426 428-430 430 431 1. CONTENTS. ART. II. As to the several parts of a petition III. As to the signing of a petition. IV. As to matters extraneous to a petition Of petitions as to their substance........ 449Of the presentation and reading of petitions.. 454Of certain classes of petitions, in reference to which the preliminary proceedings are peculiar.... 465 ART. I. Election petitions.... II. Petitions relating to or affecting an election case....... III. Petitions charging or implicating members IV. Petitions for relief out of the public money V. Petitions against tax bills.. VI. Private petitions and previous petitions. VI. Of the present practice with regard to the presentation of petitions......... VII. Of subsequent proceedings on petitions... PART SIXTH. OF THE FORMS AND METHODS OF PROCEEDING IN A LEGISLATIVE ASSEMBLY. FIRST DIVISION. MOTIONS. CHAPTER FIRST. OF MOTIONS IN GENERAL. SECTION I. Introductory....... II. Notice of motion.... III. Making and withdrawal of motions CHAPTER SECOND. OF MOTIONS CONSIDERED WITH REFERENCE TO THEIR SUBSTANCE. 502-509 CHAPTER THIRD. OF MOTIONS CONSIDERED WITH REFERENCE TO THEIR FORM. XI(iii SECTION 111. IV. V. 467 468 468 469 470 471-476 476 . 481-485 485-491 - 491 509-513 CONTENTS. CHAPTER FOURTH. OF MOTIONS CONSIDERED WITH REFERENCE TO THE TIME ThIEY ARE MADE........ CHAPTER FIFTH. OF MOTIONS FOR THIE DISPOSITION OF OTHIER BUSINESS. SECTION I. Of motions to amend........ ART. I. General rules applicable to amendments II. Amendments considered with reference to their substance....... III. Amendments considered with reference to their form........ 1. Amendments by leaving out words 2. Amendments by inserting words. 3. Amendments by leaving out and inserting 4. Division of a proposition into two or more questions...... 5. Filling blanks..... 6, 7, 8, 9. Addition, separation, transposition, num bering of paragraphs, formal words IV. Of the congruity of amendments as required by rule in this country..... II. Of motions to postpone....... 1. Effect of an order for postponement, on the (lay on which it is made. 2. Effect of, between the day of the making of the order and the day assigned 3. Effect of, on the day assigned. 4. Effect of, after the day assigned. 5. Of the effect of the motion to postpone, according to parliamentary usage in this country'..... III. Of motions to commit....... IV. Of motions to suppress....... ART. I. Adjournment.......... II. Orders of the day...... III. Previous question...... 1. Of the previous question according to the commnon parliamentary law. 2. Of the previous question as used by legis lative assemblies in the United States. IV. Amendment.. CIIAPTER SIXTII. OF TIIE ORDER, SUCCESSION, AND PRECEDENCE OF MOTIONS. SECTIONI. Of motions relating to and connected with the question pending 563-581 xxiv . 513-515 516-53 7 51 7 519 523 523 526 526 528 531 533 533 537-543 538 538 539 541' 542 543 544-562 544 547 549 550 555 561 CONTENTS. ART. I. Subsidiary questions..... II. Incidental questions..... 1. Questions of order 5 2. Reading papers..... 3. Withdrawal of a motion... 4. Suspension of a rule... 5. Of taking the question by yeas and nays SECTION II. Of motions related to, or connected with, some subject which is deemed to be of paramount importance.. 1. Questions of privilege.. 2. Privileged questions... III. Of motions relating to the general course and order of pro ceeding.......... IV. Of the order, succession, and precedence, of motions, as es tablished by rule in this country..... V. Of the general course or order of business in a legislative assembly......... SECOND DIVISION. ORDER IN DEBATE. CHAPTER FIRST. WHAT CONSTITUTES A DEBATE, AND HEREIN OF THE MEMBERS WHO ARE TO SPEAK, AND OF THEIR PERSONAL DEPORTMENT WHILE SPEAKING. SECTION I. Of the grounds upon which preferences are allowed in assign ing the floor to particular members..... Exc. I. The original mover of a proposition on its being first debated...... II. A new member, on his first rising to address the house....... III. The member who rose last to speak, when the debate was adjourned.... IV. Members entitled to the floor on grounds of preference, irrespective of their peculiar character....... II. Personal deportment of members in speaking. CHAPTER SECOND. OF THE RULE THAT NO MEMBER IS TO SPEAK, UNLESS TO A QUES TION ALREADY PENDING OR TO INTRODUCE A QUESTION. c .xxv 563 567 56 7 572 574 575 579 581-589 581' 585 589 590 592 599-604 599 601 602 602 604-606, 606-615-1 CONTENTS. CHAPTER THIRD. OF THE RULE THAT NO MEMBER IS TO SPEAK MORE THAN ONCE TO TILtE SAME QUESTION. SECTION I. What is understood by a speaking.. II. What is understood by the same question CHAPTER FOURTH. OF THE RULE THAT A QUESTION IS OPEN FOR DEBATE UNTIL IT IS FULLY PUT ON BOTH SIDES...... CHAPTER FIFTH. OF THE RULES RELATING TO RELEVANCY IN DEBATE. SECTION I. As to the question itself......... II. As to the manner of speaking to the question.. CHAPTER SIXTH. OF THE RULES RELATING TO THE SOURCES FROM WHICH THE STATEMENTS INTRODUCED BY A MEMBER IN DEBATE ARE DERIVED. SECTION I. Statements made by members of their own knowledge or be II. Matter introduced from the journals or papers of the house other public records...... III. Matter introduced from extraneous sources.. CHAPTER SEVENTH. OF THE RULES RELATING TO THE PRESERVATION OF ORDER, DECENCY, AND HARMONY AMONG THE MIEMBERS. SECTION I. As to the manner in which the individual members are to be designated......... II. As to the exemption of members from being personally ad dressed or appealed to, in debate, by other members IlL. As to the exemption of members from being personally re marked upon, or, in other words, as to personality in debate.......... CHAPTER EIGHTH. OF THE RULES RELATING TO THE PRESERVATION OF THE HAR MONY AND INDEPENDENCE OF THE SEVERAL BRANCHES OF THE xxvi 616 618-625 626 . 628-632 632-638 639 640 641-645 646 647 648-657 LEGISLATURE. . 658-666 CONTENTS. CHAPTER NINTH. OF THE RULES RELATING TO REGULARITY OF PROCEEDING. CHAPTER TENTH. OF THE RULES RELATING TO THE RESPECT DUE FROMI THE MEMBERS TO THE HOUSE TO WHICH THEY BELONG, - TO ITS POWERS, ACTS, AND PROCEEDINGS, - AND TO THE GOVERNMENT AND LAWS OF THE COUNTRY........... CHAPTER ELEVENTH. OF PROCEEDINGS WITH REFERENCE TO DISORDERLY OR UNPARLIAMENTARY WORDS, OR IRREGULARITY IN DEBATE. SECTION I. Of proceedings to prevent or correct irregularity in debate. 675-682 II. Of proceedings to compel a member to explain, retract, or apologize, for disorderly words......... 682-686 ART I. As to the time when the complaint for disor derly words must be made.... 683 II. As to the mode of proceeding for obtaining the order of the house to take down the words, and taking them down and verifying them. 684 III. As to subsequent proceedings.... 686 CHAPTER TWELFTH. RULES FOR THE CONDUCT OF MEMBERS PRESENT IN THE HOUSE DURING A DEBATE.......... THIRD DIVISION. OF ASCERTAINING THE SENSE OF THE ASSEMBLY ANY QUESTION BEFORE IT. CHAPTER FIRST. OF THE RIGHT AND DUTY OF MEMBERS TO VOTE. CHAPTER SECOND. OF THE DIFFERENT MODES OF TAKING A QUESTION. SECTION 1. Of taking the sense of the house by their common consent. xxvii 666-671 671-6 74 687 IN REFERENCE TO . 692-694 695 CONTENTS. II. Of taking the sense of the house by the voices... 696-698 [II. Of taking the sense of the house by a division.. 698-705 IV. Of the differences between the two houses in the mode of taking the question.......... 705-707 V. Of some usages and methods in the taking of questions, which are peculiar to this country....... 707 CHAPTER THIRD. OF THE QUESTION THUS TAKEN. CHAPTER FOURTH. OF THIIE DISALLOWANCE OR ADDITION OF VOTES. SECTION I. Of the allowance of votes refused. II. Of the disallowance of votes received PART SEVENTH. OF COMMITTEES AND THiEIR FUNCTIONS. FIRST DIVISION. SELECT C OMMITTEES. CHAPTER FIRST. OF THE DIFFERENT KINDS OF SELECT COMMITTEES CHAPTER SECOND. APPOINTMENT OF SELECT COMMITTEES. SECTION I. As to who may be of a committee.... II. As to the number of members... JII. As to the time of appointment..... IV. As to the mannier of appointment of a select committee. ART. I. Appointment of a select committee on motion II. Appointment of a select committee by ballot III. Other modes of appointment... xxviii SF,CTION I I 708-711 712 712-718 724 726 727 728 729-736 729 733 735 CONTENTS. CHAPTER THIRD. POWER AND AUTHORITY OF SELECT COMMITTEES. SECTION I. Of the powers with which committees are invested, to enable them to discharge the duties of their appointment; or, in other words, of the incidental powers of committees. ART. I. As to the time of sitting... II. As to the place of meeting... III. As to sending for persons, papers, and records IV. As to reporting from time to time. II. Of the powers of committees as to the subjects referred to them............... CHAPTER FOURTH. FORMS OF PROCEEDINGS IN SELECT COMMITTEES. CHAPTER FIFTH. OF INSTRUCTIONS TO COMMITTEES CHAPTER SIXTH. OF OTHER INTERMEDIATE PROCEEDINGS IN THE HOUSE WITH REF ERENCE TO COMMITTEES............. CHAPTER SEVENTH. OF THE REPORT. CHAPTER EIGHTH. OF MAKING THE REPORT, AND PROCEEDINGS THEREON,. SECOND DIVISION. COMM0ITTEES OF THE WHOLE. CHAPTER FIRST. APPOINTMENT OF A COMMITTEE OF THIE WHOLE -xxix 737-740 737 739 739 740 741 . 742-745 746 748 749-755 . 755-761 764 c * CONTENTS. CHAPTER SECOND. SITTING OF A COMMITTEE OF THE WHOLE CHAPTER THIRD. CHAIRMAN AND CLERK OF THE COMMITTEE. CHAPTER FOURTH. DUTIES OF THE SPEAKER AND OTHER OFFICERS OF THE HOUSE WHILE THE HOUSE IS IN COMMITTEE OF THE WHOLE... CHAPTER FIFTH. PROCEEDINGS ON GOING INTO A COMMITTEE OF THE WHOLE CHAPTER SIXTH. OF THE PROCEEDINGS IN COMMITTEE OF THE WHOLE. SECTION I. Quorum............. II. Authority of the committee........ III. Making motions, and speaking in committee of the whole IV. Formal motions......... CHAPTER SEVENTH. OF THE REPORTS OF COMMITTEES OF THE WHOLE. SECTION 1. Resolutions............. II. Direction to move the house or to state a fact.. III. Special reports........ IV. Report of the subject-matter referred to the committee. CHAPTER EIGHTH. OF MAKING THE REPORT, AND PROCEEDINGS THEREON CHAPTER NINTH. OF SOME PARTICULAR COMMITTEES... THIRD DIVISION. JOINT COMMITTEES.. xxx 764 765-767 76 7-769 769-771 772 772 773-776 776 778 779 779 780 780 . 781-788 . 789-791 xxxi CONTENTS. PART EIGHTH. OF THE PASSING OF BILLS. FORM OF STATUTES, AND THE MODE OF HISTORY OF THE PRESENT PASSING THEM. FIRST DIVISION. PUBLIC BILLS. CHAPTER FIRST. INTRODUCTORY CHAPTER SECOND. OF THE INTRODUCTION OF THE SUBJECT OF A BILL INTO THE HOUSE. SECTION I. Petition....... If. Address or message...... III. Reading of some document or message IV. Motion............ CHAPTER THIRD. OF THE INTERMEDIATE PROCEEDINGS BETWEEN THE INTRODUCTION OF THE SUBJECT AND THE INTRODUCTION OF A BILL. SECTION I. Debates of the house.. II. Heads; articles; resolutions. III. Committee.... CHAPTER FOURTH. OF THE AUTIIORITY FOR THE INTRODUCTION OF A BILL. SECTION I. Leave or order to bring in a bill. II. Committee to prepare and bring in a bill. . 795-798 . 800-804 804 804 805 806 806 808 . 808-811 . 811-814 814 CONTENTS. CHAPTER FIFTH. OF THE PREPARATION OR DRAWING AND THE DIFFERENT PARTS OF A BILL. II. Preamble....... III. Statement of the enacting authority.. IV. Purview or body of the act... V. Provisos....... VI. Schedules....... VII. Date........ VIII. Of the general preparation of a bill. CHAPTER SIXTIH. OF THE PRESENTATION AND RECEPTION OF A BILL. CHAPTER SEVENTH. OF THE SEVERAL STAGES THROUGH WHICH A BILL PASSES CHAPTER EIGHTH. OF THE FIRST READING OF A BILL AND ORDER FOR SECOND. CHAPTER NINTH. OF THE SECOND READING AND ORDER FOR COMMITMENT.. CHAPTER TENTH. OF INSTRUCTIONS TO COMMITTEES... CHAPTER ELEVENTH. OF COMMITMENT AND AMENDMENT... CHAPTER TWELFTH. OF THE REPORT OF THE COMMIITTEE, AND PROCEEDINGS CHAPTER THIRTEENTH. OF THE ENGROSSMENT AND THIRD READING. CHAPTER FOURTEENTH. OF THE PASSING.6 xxxii SECTION 1. Title . 816-818 818 819 820 821 822 822 823-826 . 826-829 829-833 . 834-840 . 840-843 . 843-845 845-854 THIF,RF.o,,; 855-858 858-864 864 CONTENTS. CHAPTER FIFTEENTH. OF AMENDMENTS BETWEEN THE TWO HOUSES. CHAPTER SIXTEENTH. OF THE AUTHENTICATION OF BILLS BETWEEN THE TWO HOUSES. 883-885 CHAPTER SEVENTEENTH. OF COMMUNICATIONS BETWEEN THE TWO HOUSES RELATIVE TO THE PASSING OF BILLS........... CHAPTER EIGHTEENTH. OF BILLS WHICH ARE REQUIRED TO BE COMMENCED IN ONE HOUSE IN PREFERENCE TO THE OTHER. CHAPTER NINETEENTH. OF THE RULE WHICH PRECLUDES TIHE SAME QUESTION FROM BEING A SECOND TIME PRESENTED DURING THE SAME SESSION IN ITS APPLICATION TO BILLS. SECTION I. Of the application of the rule in general.... II. Of the application of the rule, when leave has been given or refused, or an order made or rejected, to prepare and bring in a bill for a particular purpose..... Ill. Of the application of the rule whilst a bill is pending IV. Of the application of the rule when a bill has been rejected. V. Of the application of the rule when a bill has been passed VI. Of the application of the rule to the different stages of a bill and to amendments........ CHAPTER TWENTIETH. OF SOME PARTICULAR PROCEEDINGS, WITH REFERENCE TO BILLS, WHICH ARE OUT OF THE ORDINARY COURSE. SECTION I. Withdrawal...9 II. Rejection... III. Laying aside... IV. Dropping...9 CHAPTER TWENTY-FIRST. OF COMMUNICATIONS BETWEEN THE TWO HOUSES RELATIVE TO THE REASONS OR GROUNDS FOR TIIE PASSING OF BILLS.. 910-914 xxxiii 865-883 886-888 889-892 894-896 896 89 7 898 899 901 902-906 907 908 909 CHAPTER TWENTY-SECOND. CONTENTS. OF THE ROYAL ASSENT, OR APPROVAL BY THE EXECUTIVE.. 914-925 CHAPTER TWENTY-THIRD. OF SEVERAL MISCELLANEOUS MATTERS CONNECTED WITH THE ING OF BILLS............. SECOND DIVISION. PRIVATE BILLS. CHAPTER FIRST. OF THE STANDING ORDERS, AND PROCEEDINGS PECULIAR OF PRIVATE BILLS. SECTION I. Notices.............. II. Parliamentary agents........ IIL Private bill office........ IV. Examiners of petitions............ V. Standing orders committee...... VI. Committee of selection....... VII. Chairman of the committee of ways and means; counsel to Mr. Speaker; government boards..... VIII. Time for proceeding with private bills 9 IX. Conducting of the proceedings...... X. Time for presenting petitions....... XI. Private bills not to be brought in, but upon petition.. CHAPTER SECOND. OF THE DEPOSIT, PRESENTATION, AND REFERENCE OF THE PET AND PROCEEDINGS THEREON...... CHAPTER THIRD. BRINGING IN AND FIRST AND SECOND READINGS OF PRIVATE BILLS 947-949 xxxiv . 926-932 TO THE PASSING 936 937 938 938 939 939 939 940 940 941 941 . 942-947 CONTENTS. CHAPTER FOURTH. COMMITMENT, AND PROCEEDINGS IN COMMITTEE. SECTION I. Of the constitution of the committees on private bills, and of their proceedings in unopposed bills........ 949-956 II. Of the proceedings of committees on opposed bills.. 956-961 III. Of the duties of the committee as to reporting their proceed * * * *.. CHAPTER FIFTH. OF THE REPORT OF THE COMMITTEE, AND PROCEEDINGS THEREON; RECOMMITMENT; THIRD READING; PASSING; AMENDMENTS BE TWEEN THE TWO HOUSES......... -.. CHAPTER SIXTH. DIFFERENCES IN THE MODES OF PROCEEDING BETWEEN THE TWO HOUSES............ CHAPTER SEVENTH. OF PRIVATE BILLS AFTER RECEIVING THE ROYAL ASSENT; AND OF FEES AND COSTS.............. PART NINTH. IMPEACHMENT APPENDIX. I. Of the continuity and permanence of the senate of the United States............ II. Writ for the election of the members of the house of commons T'he writ to the sheriff, on a general election 9 III. Of the liability of returning officers...... IV. Origin of the majority principle........ V. Return of a writ of election........ Indenture of return for a county. xxxv ings. 961-963 963-967 967-972 973-975 . 979-989 993 993-995 993 995 996 998 998 CONTENTS. Speaker's warrant......... 1. Copy of the warrant issued in Duane's case. J. of S. III. 60......... 2. Copy of the warrant issued by the speaker of the house of commons in the case of the sheriff of Middlesex. May, 72......... 3. Copy of summons for witnesses in the house of repre sentatives of the United States... The speaker's prayer during the session... Bill passed by the miscounting of votes..... Taking of the yeas and nays....... Freedom of speech and debate....... Extract from President Polk's message, declining to furnish papers.......... Division of a question....... Appeal from the speaker's decision in the house of commons Appointment of committees....... Of grand committees and committees of the whole house. Amendments between the two houses..... The act for preventing occasional conformity 1 ID...1027 xxxvi 999 999 1000 1000 1001 1002 1003 1004 vii. Vill. ix. X. xi. 1004 1005 . 1006-1008 1008 . 1009-1018. 1019-1024 1019 . xii. xiii. xiv. xv. xvi. INDEX LAW AND PRACTICE LEGISLATIVE ASSEMBLIES. PRELIMINARY. 1. THE political science of modern times, in its analysis of the different functions of civil government, under whatever name or form they may be exercised, has arranged them all in three grand divisions, denominated the legislative, the executive, and the judicial. In all modern constitutional governments, each of these classes of functions is appropriated to a separate and distinct department, which is intended to be, and to a greater or less extent is, practically independent of either, or both of the others.' The most important of these departments, both because of the nature of its functions, and because it is necessarily the depositary of so much of the absolute power of the people, as they see fit to intrust to their government, and do not confer upon other departments, is the legislative. 2. The department of legislation, in the greater number of modern States, and in every one of the States composing the American Union, as well as in the government of the Union itself, consists of two separate and distinct branches, possessing independent and In Maine, the constitution of which contains the latter provision, it has been held, on that ground, that the offi ce o f justice of te peace is incompatible with that of sheriff, deputy sheriff, or coroner. See Chapman v. Shaw, Greenleaf's Reports, III. 372; Opinion of the Justices, etc., Same, III. 484; and Bamford v. Melvin, Same, VII. 14. 1 The separation has been deemed so essential in this country, that it has been provided for, in express terms, in the constitutions of many of the States; and several of them declare also not only that the departments shall be separate, but that no person or persons, belonging to one, shall exercise any of the powers belonging to either of the others, except in cases expressly permitted. (1) . OF 1 LEGISLATIVE ASSEMBLIES. coordinate powers; both of which must concur in every act of legislation; each of which is composed of a sufficient number of members to give it the character of a deliberative assembly; and whose concurrent acts, in matters of legislation, are (with two or three exceptions) subject to a negative, either absolute or qualified, on the part of the executive power. 3. Of these two branches in the legislatures of this country, though they are in fact equal in power and dignity, the one, being a smaller and more select body, is usually regarded as the upper house, and the other, consisting of a larger and less select body of members, as the lower. The members of the former, commonly called the senate, are usually required to possess certain peculiar qualifications, as to age and residence; are chosen by more numerous constituencies, and sometimes by a comparatively select, that is, a more highly qualified body of electors; and are not unfrequently elected for longer terms of office. The members of the latter, variously known as representatives, burgesses, commons, or delegates, are chosen by smaller constituencies; sometimes, by a more popular suffrage, that is, by electors of less qualifications; and often, for shorter periods of official duty. There are States, however, in which the qualifications of the electors, the term of office, and the conditions of eligibility, are precisely the same, in reference to both branches. 4. The functions of the upper and lower houses, though absolutely the same in matters of legislation, (with certain exceptions which will be adverted to hereafter,) are, in some of the States of the Union, essentially different in certain respects, in which their powers have been specially enlarged or restricted by the fundamental law; the former, for example, sometimes exercising the functions of an executive council, as in the federal government, or of a judicial tribunal, in the last resort, as formerly in the State of New York; and the latter, (not unfrequently, however, in conjunction with the other,) sometimes electing or appointing to office, either in the first instance, or, in the case of a failure to elect, on the part of electors, whose duty it is, in the first instance, to make certain elections. There is one matter, however, within the usual and ordinary powers of the two branches, in reference to which their functions are essentially different, namely, the impeachment and trial of public officers for official misconduct, in which the offender is impeached or accused by the lower house, and tried and sentenced by the upper. 5. From a general view of some of the characteristic features 2 LEGISLATIVE ASSEMBLIES. of the legislative assemblies of this country, it is manifest, that their original type is to be found in the parliament of Great Britain; upon the model of which they have all been formed, with such modifications and changes, as have been found necessary to adapt them to the various circumstances and wants of the people. The most striking of these differences are, that, in this country, both branches are elected by the people for specified terms, and that the members of the lower house (and of the other also, either wholly or in part) are apportioned among and elected by their several constituencies, upon the principle of equality; 1 whereas, in England, the house of lords is composed of members who are not elected at all, but who sit as members, during their lives, in virtue of hereditary or conferred right, as the nobility or temporal lords, or of their appointment to high dignities in the church, as the archbishops and bishops, or lords spiritual; and the members of the house of commons, though elected, are not apportioned among the several constituencies and elected upon the principle of equality of representation, but chiefly upon the principle of corporate or municipal right. 6. Besides these differences between the British parliament and the legislative assemblies of the United States, there is another of not less importance, namely, that the existence and powers of the -former rest only upon custom and tradition, aided by occasional statute provisions; whereas the latter are founded in, and for a great part regulated, limited, and controlled by, written fundamental laws or constitutions. 7. There is still another difference, not inferior perhaps in im portance, which is, that the British parliament can only be con vened at the pleasure of the sovereign, who is invested with full power both to convene and dissolve it, and is only required by law not to suffer a longer period than three years to elapse between the dissolution of one parliament and the convening of another; while, in the several governments of the American Union, the meetings, periods of existence, and manner of dissolution, of the legislative assemblies, are all provided for and regulated by the fundamental laws. 8. The legislative department, however carefully separated and kept distinct both from the executive and judicial departments, and though exercising coordinate and independent functions, is never theless by its very nature, the depositary of so much of the supreme 1 Constitution of Massachusetts, Part II. Chap. I. Sect. III. 3 LEGISLATIVE ASSEMBLIES. and absolute power as the people see fit to embody in their form of government; for, whilst the functions of the executive and the judiciary are precisely marked out by fixed laws antecedently enacted, and, from the nature of those powers, do not admit of any enlargement or extension by their own act, the legislative department may control, regulate, and limit the executive and the judiciary, by general prospective provisions of law, and may also act on every emergency, not otherwise previously provided for, (whether it require executive, legislative, or judicial interference,) in virtue of the supreme legislative power with which it is intrusted. 9. In this country, there are three kinds of legislative assemblies, namely, first, those of the several States; second, that of the United States; and third, those of territories not yet formed into States. The legislatures of the States are chosen directly by the people thereof, and are the depositaries of their exclusive, original, sovereign power. They possess all the legislative authority which can be exercised within their respective jurisdictions, except so far as they are restrained therefrom by constitutional enactment, either express or implied in their own constitutions or in that of the United States. These are equal in number, of course, to the several States. The legislative assembly of the Union denominated the Congress of the United States, is one of derivative and limited powers, exercising only those functions with which it is invested, for the general welfare, and the benefit of all the States, either expressly, or by necessary implication. One of its branches, the upper, is chosen by the legislatures of the States; its existence is continued and perpetual;1 the other branch is chosen directly by the people of the respective States.2 The Congress of the United States also exercises exclusive legislation, in all cases whatsoever, within the District of Columbia, and over all places purchased by the government of the United States, with the consent of the States in which the same are situated, for arsenals and other public works of a like character. The only remaining class of legislative assemblies in this country consists of those of territories subject to the dominion of the United States and not yet formed into States. These are created by and depend wholly for their existence upon acts of Congress. Territorial governments, according to their importance, generally, have 1 Appendix, I. delegates are entitled to seats, as such, after 2 Senators and representatives are entitled the erection of the territory, for which they to seats, even though their election as such serve, into a State, so long, at least, as any took place before the admission of their State part of their original constituency remains. into the Union, (Cong. Globe, IV. 134); and (Case of IPaul Feariny, Clarke & Hall, 127.) 4 LEGISLATIVE ASSEMBLIES. a legislature consisting either of a single branch appointed by the president, or one consisting of two branches, the most numerous of which is chosen by the people. These governments are, of course, merely temporary. The distinguishing character of territorial legislatures is that all their acts are subject to the approval or disapproval of Congress. These governments differ also, in another respect, from those of the States; they are not represented at all in the senate of the United States; and in the other branch only by delegates, who have no right of voting therein. 10. The legislative assemblies of Canada, and of other colonies and provinces of Great Britain, which appear to be formed and conducted, even more closely than our own, upon the model of the British parliament, and occasional assemblies, which are not legislative in their character, though they exercise analogous functions, such as constitutional conventions and the like, are not, except so far as they are governed by the common parliamentary law, embraced within the plan of this work. 11. The laws relating to the election and constitution of these legislative bodies; the rules by which they are governed and regulated; and the forms and methods in which their proceedings are conducted, constitute a peculiar branch of jurisprudence; which, from having been first treated of with reference to, the parliament of Great Britain, is denominated parliamentary law, or the law of parliament. 12. In considering the various topics embraced under the head of parliamentary law, it will be convenient to arrange them in the following order: - FIRST, Of the Election of the Members of a Legislative Assembly; SECOND, Of its Constitution; THIRD, Of the Privileges and Incidental Powers of such a body; FOURTH, Of its General Powers and Functions; FIFTH, Of the Communications which take place between the different Branches, and between them or either of them, and the Executive, other official bodies or persons, individuals, or the public in general; SIXTH, Of the Forms and Methods of Proceeding; SEVENTH, Of Committees and their Functions; EIGHTH, Of the Passing of Bills; NINTH, Of Impeachment. 1* Jo 5 LAW AND PRACTICE OF LEGISLATIVE PART FIRST. OF THE ELECTION OF THE MEMBERS. ASSEMBLIES. 4 LAW AND PRACTICE OF LEGISLATIVE ASSEMBLIES. PART FIRST. OF THE ELECTION OF THE MEMBERS. 13. IN this part, will be considered: - First, Constituencies; Second, the Persons competent to be Electors; Third, the Persons competent to be Elected; Fourth, the Mode of Election; Fifth, the Return of the Persons Elected; and, Sixth, Controverted Returns and Elections. CHAPTER FIRST. OF CONSTITUENCIES. 14. The fundamental idea of a representative government is, that a large number of persons select from themselves a smaller number, or, it may be, a single person, to represent and act for them, in the performance of those functions which constitute government. It is immaterial, in this respect, whether the whole body of the electors act together in the selection, or whether they act by divisions, each of which elects its proportion of the delegated body; and, where the electors are divided into separate bodies, for this ,t~~~~~~~~~~~~ ~~~~(9) LEGISLATIVE ASSEMBLIES. purpose, it is immaterial whether the division is by classes, or orders, as of the different trades or professions, or by means of local and territorial boundaries; inasmuch, as in all these forms, the essential principle of representation is attained and secured. In this country, the first and the last are the only forms in use; the former, with one or two exceptions, in the election of the chief executive magistrates of the several States, and the latter in the election of the members of the legislative assemblies. 15. For the purpose, among others, of electing the members of legislative assemblies, the States are respectively divided and sub divided into counties, towns, cities, districts; each of which, for the purposes for which such division or subdivision takes place, constitutes a municipal corporation or body politic. In some of the States, the smaller divisions, towns and cities, for example, elect each of them one or more of the members of the popular branch of the legislature; in others, these smaller corporations are united, two or more of them together, into districts, for the same purpose; while, in all the States, the members of the more select or senatorial branch are elected, either by counties, each of which comprises several smaller subdivisions of cities or towns, or by districts composed of several counties. 16. These different kinds of constituencies have given rise to two different modes of proceeding in making and determining elections, and authenticating the right of membership, or, in other words, of returning the members elected. The return of a member, as the term is used in this country in a popular sense, denotes the election merely, as when it is said, that such a person is returned, that is, elected, a member; but in its proper and technical sense, it denotes the instrument by which the election is authenticated, or certified from the constituent to the representative body. Where all the electors of a constituency assemble together in one place, and give in their votes to one set of municipal officers, such officers act ministerially in receiving the votes, and also judicially in determining the result of the election; but where the electors assemble in different places, and give in their votes to as many different sets of municipal officers, the latter for the most part act merely in a ministerial capacity, in receiving the votes and transmitting certificates or records of them to a central board of officers, to whom the judicial functions of determining the election and returning the members elected are delegated.' 1 Biddle and another v. Winy, Clarke & Hall, which are in question, it is clear, that they so 504. Where receiving officers exercise their far act judicially. judgment, in receiving or rejecting votes, 10 [PART L CONSTITUENCIES. 17. Whether, however, the electors vote by districts composed of several smaller municipal bodies, or those of the same constituency vote together, the meetings for the purpose are held in the same manner, governed by the same rules, and conducted by the same officers; the only difference being, as already observed, that, in the first case, the votes are received by one set of officers, and the election determined by another; whereas, in the second case, both these functions are performed by the same officers. 18. The constituencies above described are those into which each State and territory is divided, for the choice of the members of the local legislatures; those which relate to the election of the members of Congress, or the legislature of the Union, remain to be briefly noticed. In this respect, the Congress of the United States is peculiar; the population and territory, of which its constituencies are composed, being already represented, for the general purposes of government, in their local legislatures. 19. The number of the members of which the house of representatives is from time to time to consist, according to the constitution, being first determined by Congress, and apportioned among tile several States, two methods have been practised in their election, namely, they have been chosen by general ticket, as it is called, or by the district system. According to the former, the qualified voters of each State elect, at one election, and on one ballot, the whole number of members to which such State is entitled. According to the latter method, the States are divided by their own legislatures into suitable territorial districts, each of which is entitled to elect one member. Where a State is only entitled to one member, these two systems are, in effect, the same. Sometimes, where a territorial division cannot conveniently be made, a district is double; or in other words, is large enough to be allowed to elect two members instead of one. In these districts, the election of members of Congress is conducted in the same manner, and by the same officers, as other elections. 20. The immediate constituents, that is, the elective power, of the senate of the United States, are the several States themselves, in their aggregate or municipal capacity; the constitution providing that the senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof. 21. It would seem to be clear, from this language, that the requisition of the constitution of the United States, in regard to the election of the senate, would not be complied with, unless its members were elected by the legislatures of the several States, by legis CHAP. I.] 11 LEGISLATIVE ASSEMBLIES. lative acts, that is, in the same way that laws are passed by the concurrent act of the two branches, approved by the executive. But the practice has so long prevailed, and been silently acquiesced in by the senate, of electing its members by joint ballot of the two branches of a State legislature, in which the members constitute one aggregate body, and in which the less numerous branch is dissipated and lost in the larger, that it is perhaps too late now to call in question this latter mode. Still, as it is not competent for the members of a legislative assembly to do any ordinary act of legislation, by a proceeding in joint ballot, an election, effected by the members of a legislative assembly in that manner, cannot properly be said to be a choice by the legislature.1 CHAPTER SECOND OF THE PERSONS COMPETENT TO BE ELECTORS. 22. The right of suffrage is regulated in part by what may be called the common political law, but chiefly, by the constitutions and'laws of the several States. The federal constitution contains no provisions of its own touching the qualifications of electors of representatives, but adopts those of the several States; declaring that the electors in each State, to offices under the constitution of the United States, shall have the qualifications requisite for electors of the most numerous branch of the legislature of such State. of the senate is dissipated and lost in the more numerous vote of the assembly. This construction has become too convenient, and has been too long settled by the recognition of senators so elected, to be now disturbed, though I should think, if the question was a new one, that when the constitution directed that the senators should be chosen by the legislat ure, it meant not the members of the legiselature per capita, but the legislature in the true technical sense, being the two houses acting in their separate and organized capacities, with the ordinary constitutional right of negative on each other's proceedings." Kent's Commentaries, I. 225. 1 Chancellor Kent had already expressed his doubts on this subject: —"There were difficulties, some years ago, as to the true construction of the constitution in the choice of senators. They were to be chosen by the legislature, and the legislature, was to prescrib e t he times, pla e s, and m anner, of holding elections for senators, and congress are authorized to make and alter such regulation, except as to the place. As the legislature may prescribe the manner, it has been considered and settled, in New York, that the legislature may prescribe that they shall be chosen by joint vote or ballot of the two houses, in case the two houses cannot separately concur in a choice, and then the weight 12 [PART 1. CHAP. II.] PERSONS COMPETENT TO BE ELECTORS. 23. The exercise of this right lying, as it does, at the foundation of all free institutions of government; it is provided, in express terms, in many of the State constitutions, that electors shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest, on the days of election, during their attendance at, going to, and returning therefrom; and that no elector shall be obliged to do duty in the militia on any day of election, except in time of war or public danger. These provisions are both found in the constitutions of Maine, Virginia, Illinois, Michigan, Iowa, and California; the former only in those of Connecticut, Pennsylvania, Delaware, Alabama, Mississippi, Tennessee, Louisiana, Kentucky, Ohio, Indiana, Missouri, Arkansas, and Texas; and in almost all the States though bribery is an offence at common law, there are constitutional provisions or laws, to secure the freedom and purity of elections. 24. By the common political law of England and of this country, when not otherwise specified in a particular State, by its constitution or laws, certain descriptions of persons are deemed to be excluded from exercising the right of political suffrage, even though not prohibited therefrom by any express constitutional or legal provision. The persons thus excluded are minors, idiots and lunatics, women, and aliens. With these exceptions, all persons, possessing the qualifications required, and not subject to any of the disabilities specified, by the constitution or laws of the States, in which they live, may vote at all elections therein. In considering the subject of the right of suffrage, therefore, it will be convenient, first, to notice briefly the general exceptions alluded to; second, to enumerate the qualifications required, and, third, the disabilities pronounced, by the constitution and laws of the several States. It must be recollected, however, that the persons enumerated above, as excluded from exercising the right of suffrage by the common political law, if mentioned in the constitution or laws of a State, are, of course, governed exclusively by the provisions thereof, irrespective of the common political law. SECTION I. OF PERSONS EXCLUDED BY THE COMMON POLITICAL LAW FROM THIE RIGHT OF SUFFRAGE. 25. Infants, or persons under the age of legal majority, are excluded from voting, on the same general ground, on which they are prohibited from doing any other legal act, namely, their presumed want of capacity. The age of twenty-one is the period of 2 13 LEGISLATIVE ASSEMBLIES. majority for males, throughout the United States; and that age is completed according to the common law, on the beginning of the day preceding the day of the anniversary of the person's birth.1 26. In the constitutions of many of the States, the age necessary to qualify one to be an elector is mentioned; in some, the language is "twenty-one years of age" or "twenty-one years of age and 2 upwards;" in others, it is, "above the age of twenty-one years." The intention is perhaps the same in both cases; but, according to a strict legal construction, the latter phraseology would exclude the day of arrival at full age, and so prevent one from voting, until the next day after; whereas the former would allow him to vote on that day. 27. Idiots and lunatics are also excluded from voting for the same general reason, - their want of capacity, -which disqualifies' them from the doing of other legal acts: the former being perpetually disabled, and the latter temporarily so, while in the state of insanity.3 In regard to lunatics, whether their malady is periodical or constant in its nature, there seems no reason to doubt, that their right to vote, like their capacity to do other legal acts, will depend upon their mental condition at the time of the election; and, if, at that time, their condition of mind is such, that a will or deed then made would be valid, or an agreement then entered into binding in law, their votes ought to be received. Drunkenness is regarded as a temporary insanity.4 28. Several of the State constitutions contain express provisions relating to this subject. By those of Delaware, Ohio, and New Jersey, it is provided, that "no idiot or insane person shall enjoy the right of an elector;" the constitution of Virginia declares, that, "the right of suffrage shall not be exercised by any person of unsound mind;" and by those of Rhode Island, Maryland, and Wisconsin," lunatics and persons non compotes mentis are excluded from the right of suffrage." In cases of constitutional or legal prohibition to exercise the right of suffrage by these persons, it is presumed, that the principle stated in the preceding paragraph is equally applicable. 29. The rule of exclusion from the right of suffrage, on the 1 Kent's Commentaries, II. 232; Rogers on I Okehampton, Fraser, I. 162, 164; BridgeElections, 86. water, Peckwell, I. 109; Bedford, Perry & 2 The word "or" is sometimes used in- Knapp, I. 129. stead of" and." The difference is not mate- 4 Wigan, Falconer & Fitzherbert, 695; Monrial. mouth, Knapp & Ambler, 413. V 14 [PART I. PERSONS COMPETENT TO BE ELECTORS. ground of want of capacity, refers only to defects of mind, and not to those which are merely physical, or of the bodily organs and senses; consequently, no mere bodily defect, as of one or more of the senses, or physical infirmity, as from sickness or other cause, is sufficient to preclude one from the right of suffrage, though it may prevent him from exercising that right; and it has accordingly been held, that a deaf and dumb person,' if possessed of such a measure of intelligence, as to understand the nature of the right to vote, and to be competent to take the oath required by law, (if any), is entitled to his right of suffrage, and may give his vote, either orally or by ballot, through the instrumentality of some person, who is accustomed to interpret his signs.2 30. If the exclusion of females from the right of suffrage was limited to married women, whose "legal existence and authority are, in a degree, lost or suspended, during the continuance of the matrimonial union," 3 as a consequence of the principle of the. common law, by which husband and wife are regarded as one person, the reason of the exclusion would probably be found in a supposed subjection to the authority of their husbands; but, as unmarried women of full age, and competent to perform other legal acts, are equally excluded from voting, the reason must be more comprehensive than any supposed marital restraint. The ground assigned by the philosophic historian Guizot, -that women, being destined by the law of their sex for a state of existence purely domestic, are therefore incapable of deciding upon those interests, which are involved in questions of political suffrage, -probably embodies the sense of mankind on this subject.4 31. In the constitutions of all the States, except that of Georgia, women are impliedly excluded from the right of suffrage by the use of descriptive words, in the affirmative, which restrict it to persons of the male sex; but, in none of them, are women expressly excluded by negative words. By the constitution of Georgia, "citizens and inhabitants," possessing the other requisite qualifications, are entitled to vote.5 The disability of women to vote, it must be recol length, in Lieber's Political Ethics, Part II. Book IV. Chap. I. 269, 270. 5 But though women cannot vote, instances have occurred in Eingland, in which they have taken a part in elections, and have actually, in person, or by attorney, made or joined in making the return. The return from Gattou, in 1628, was made by Mrs. Capley, et omnes inha bitantes, (Carew, 1. 245). In the 14th of 1 The constitutions of Virginia and Kentucky provide, that in all elections, the votes shall be given openly, and not by ballot, but that dumb persons, entitled to suffrage, may vote by ballot. 2 Rogers on Elections, 87, 88; Letcher v. Moore, Clarke & Hall, 757. 3 Kent's Commentaries, II. 129. 4 See the remarks of Guizot quoted at C-HAP. 11.] 15 LEGISLATIVE ASSEMBLIES. lected, applies only to municipal proceedings; in moneyed and other corporations not municipal, in which they are shareholders, women vote like any other proprietors. 32. The only remaining description of persons, who are excluded from the right of suffrage, is that of aliens; who, being persons born without the territorial boundaries of the United States, and therefore presumed to be the subjects or citizens of some other government, are not supposed to possess such a knowledge of our institutions, or to be so exclusively attached to them, as to render it safe or proper that they should be intrusted with any portion of the political power; and this principle is so essential and fundamental, that no constitutional or legal provision is necessary to exclude aliens from voting; but they are considered as so excluded, by the common political law already alluded to, unless the right of suffrage is expressly conferred upon them by the constitution or laws of tho State in which they live.1 When aliens become naturalized, they acquire, with some exceptions, all the political rights, which belong to natural born citizens. In several of the State constitutions, citizenship is inserted expressly, as a descriptive qualification; in others it is only inferrible from the use of equivalent terms. SEcTION II. OF THE CONSTITUTIONAL QUALIFICATIONS REQUISITE FOR THIE EXERCISE OF TIlE RIGHIT OF SUFFRAGE. 33. In the constitutions of the several States, there are numerous and various qualifications expressly prescribed; the possession of one or more of which is made essential to entitle a person to be an elector. The following is an enumeration of the qualifications thus prescribed, namely: 1st, citizenship; 2d, freedom; 3d, residence for a certain specified period; 4th, possession of a certain amount or description of property; 5th, payment of a tax; 6th, taking a prescribed oath; 7th, settlement within the State; 8th, performance Elizabeth, the return from Aylesbury was made by Dame Dorothy Packington, describing herself as widow, late wife, of Sir John Packington, knight, lord and owner of the town of Aylesbury; declaring that she had chosen, named, and appointed Thomas Litchfield and George Barden, Esquires, to be her burgesses of her said town of Aylesbury; and, notifying and approving to be her own act whatsoever the said burgesses should do in the service of the queen in parliament, as fully and wholly as if she might be present there in person. (Male, 242, note.) No case of this 16 [ PART I. I kind has probablv occurred since the revolution; and the only way in which women have interfered in elections in modern times has been by bringing their personal influence into the canvass. By the old constitution of New Jersey, adopted in 1776, 11 all inhabitants," possessed of certain qualiflcations tlierein required as to property, were allowed to exercise the right of suffrage. Under this constitution, it is said, that women were formerly accustomed to vote. 1 Mass. Reports, VII. 523; Cushing, Story & Josseylnls Reports, 119. CHIAP. II.] PERSONS COMPETENT TO BE ELECTORS. of military duty; 9th, labor on the highways; 10th, to be a housekeeper, or head of a family; 11th, to be quiet and peaceable; and 12th, to be of a good moral character. It is proposed to notice, very briefly, some of the most important of these various qualifications, indicating, at the same time, the States in whose constitutions they are resDectively found. 1. Citizenship. 34. In all the constitutions, citizenship is required as a qualification for the exercise of the right of suffrage; in some generally; in others, that of the particular State; and in others again, citizenship of the United States. But these terms are immaterial, inasmuch, as by the constitution of the United States, congress is authorized to establish a uniform rule of naturalization; and the citizens of each State are entitled to all the privileges of citizens in the several States. The constitutions of Indiana, Wisconsin, and Michigan, dispense with this requisition in part, in favor of persons of foreign birth, who have declared their intention to become citizens of the United States, conformably to the laws thereof. 2. Freedom. 35. In the constitutions of Vermont and Connecticut, the word "freeman" occurs, as descriptive of a qualification to vote; in these cases, the term refers only to a person who is a member or "free" of the State, regarded as a municipal corporation. In the constitutions of other States, in which the word is found, it merely means one who is not a slave; in this latter sense, it is wholly superfluous. 3. Residence. 36. By the constitutions of all the States, residence within the State for a certain period, and, for a portion of that period, within the particular county,1 district, city, or town, in which one proposes to vote, is prescribed as a requisite to the exercise of the right of suffrage. In describing this qualification, the terms used are different, in different constitutions; being, in some of them, "inhabitant," -in some, "resident," and, in others, "citizen," of the State or county; all of which, however, may be regarded as nearly equivalent to the legal term "domicil,"2 or, as it is defined in the constitution of Massachusetts, the place "where one dwelleth or hath his home." 3 I Constitution of Massachusetts, chap. I., sect. 2, article 2. 2* See Kelly v. eHarris, Clarke & Hall, 260. 2 Metcalf's Reports, T. 245. 17 LEGISLATIVE ASSEMBLIES. 37. In the constitutions of Maine, Rhode Island, New Jersey, New York, Virginia, Indiana, Illinois, Arkansas, Texas, Iowa, Ohio, Florida, Missouri, Wisconsin, Alabama, and Delaware, it has been thought expedient to provide, that persons in the military, naval, or marine service of the United States (and in Maine the provision is extended to persons in the service of that State) shall not be considered as resident in those States, so as to entitle them to vote therein, by reason of being stationed in any garrison, barrack, or military place, within their limits.1 But, this provision, according to the general principles of the law of domicil, must be wholly unnecessary, at least, in all cases, where such military station belongs or has been ceded to the United States, with the usual concomitants of exclusive jurisdiction.2 38. The constitutions of New York, Maine, and California, also provide, that the residence of a student at any seminary of learning shall not entitle him to the right of suffrage in the town where such seminary is established. The question thus settled, being one of frequent occurrence, and not without difficulty, as depending on the law of domicil;-it cannot be deemed superfluous to settle it by an express provision. The constitutions of the two last-named States make a further exception, as to residence, of persons kept at any almshouse or other asylum, at public expense, and of persons confined in any public prison. 39. The constitution of Mississippi contains a provision, (and a similar one is found in that of Texas,) that where an elector happens to be in any county, city, or town, other than that in which he resides, or to have removed thereto within four months preceding an election, he may vote therein for any public officer, for whom he might have voted, if he had remained at home, or had not removed his residence. 40. The constitution of Georgia, after providing for a residence in the county, where one claims a right to vote, dispenses with it altogether in case of invasion; in which case, it declares, that if the inhabitants of a county are driven therefrom, so as to prevent an election therein, such inhabitants being a majority of the voters of such county, may proceed to an election in the nearest county not in a state of alarm. This kind of qualification being required in almost every State, in some form or other, it will be useful to suggest some of the rules which are applicable to it. 1 See Biddle and another v. W/ng, Clarke & 2 Opinion of the Justices, sc., Cushing, S. Hall, 504, 512. and J., 416. 18 [PART 1. CHAP. II.] PERSONS COMPETENT TO BE ELECTORS. 41. In the first place, the residence must be nett preceding the election; so that, if a voter, regularly qualified in point of residence, removes from the place of his domicil, and becomes an inhabitant of some other place, and afterwards returns to the former, he will not be entitled to resume his right of suffrage there, on the strength of his previous residence; but he must again acquire the right by renewing and continuing his residence for the requisite period. By the constitution of Pennsylvania, the period of residence otherwise required is shortened, in the case of a qualified voter who removes from the State and returns. 42. Secondly, the moment a voter changes his residence, and acquires a new domicil, he loses his right to vote in the former, because he no longer resides there; but he does not acquire a right to vote in the latter, until he has resided there the requisite length of time; the popular notion that a man, having once become a voter, must always afterwards have a right to vote somewhere, and consequently, that he retains a right to vote in one place until he acquires it in another, is wholly unfounded. This principle of political common law, which is the necessary result of the law of domicil, applied to the constitutional requisition of residence, is controlled by the constitutions of Maryland, Louisiana, and Missouri, which declare, expressly, that a voter, removing from one voting district to another, shall not lose his right to vote in the former, until he has acquired a right to vote in the latter. 43. Thirdly, it is perhaps scarcely necessary to observe, that the time of residence requisite to qualify an elector will run on and be attained, notwithstanding that during the whole or a portion of the same time, he may be otherwise disqualified; as, for example, in the case of a minor, or alien, or of one disqualified by the nonpayment of a tax, or the want of the requisite property qualification. It would be otherwise, of course, if residence coexistent with some other form of qualification, was required.1 Harvard College v. Gore, Pick. V. 370, 375, that the term "inhabitant" in the constitution and laws of Massachusetts implied " citizenship," reported against the validity of the election. No question, was taken on the report, except to recommit it; the house apparently agreeing to the report, but the member resigned his seat, and no discussion took place. On the contrary in the case of Biddle v. Richards, in which the election of the delegate from Michigan to the house of representatives in congress was contro 1 The constitution of Massachusetts prescribes that every member of the house shall, for one year, at least, next preceding his election, have been an inhabitant of the town from which he shall be chosen. In the case of f~alden, Cushing, S. and J., 377, the sitting member, who was an alien born at the time of his election, had resided in Malden for more than a year, but had been naturalized only a few w eek s. T he comm itt ee on elec t ions, on the strength of the decision of the Supreme Judicial Court of the State, in the case of 19 LEGISLATIVE ASSEMBLIES. 4. Property. 44. In five of the States, Connecticut, New York, (as to men of color only,) Rhode Island, and North and South Carolina, is the property qualification, in its direct form, still requisite; many of those of the older States, in which it was formerly required, having since abolished it, and the newer States, (those admitted into the Union since the year 1800,) with some exceptions, never having made it a qualification. 5. Payment of a Tax. 45. This form of the property qualification, if it may be termed such, is retained in several of the States, namely, Massachusetts, Connecticut, New York, (as to persons of color,) Pennsylvania, Rhode Island, Delaware, North Carolina, South Carolina, and Georgia; but, in Massachusetts, persons legally exempt from taxa-' tion are placed upon the same footing with those who have paid their taxes; and in Georgia, the condition is the payment of all taxes which may have been required of the elector, or which he may have had an opportunity of paying. 6 to 12. Other Qualifications. 46. The other qualifications, which have been enumerated, do not seem to require any particular notice. In Vermont and Connecticut, an oath is required; in the latter a legal settlement within the State; in Rhode Island, Florida, and Connecticut, in certain cases, the performance of military duty, or legal exemption therefrom; in Virginia an elector must formerly have been a housekeeper or head of a family; 2 and in Connecticut, of a good moral character. SECTION III. - OF DISQUALIFICATIONS FOR THE EXERCISE OF THE RIGHT OF SUFFRAGE. 47. Besides the negative disqualifications resulting from the want of the required qualifications, certain descriptions of persons, although otherwise qualified, are expressly disqualified by the constitutions of some one or more of the States, namely: 1, paupers; verted on the ground above mentioned, the 1 These provisions exist in so great number house held that the laws of Michigan, which and variety, in the constitutions and laws of required residence for a year, and citizenship, the several States, that a few only of the most as a qualification for office, were complied prominent can be adverted to, in this treatise. with by residence for a year, and citizenship 2 See Draper v. Johnston, Clarke & Hall, 702. at the time of the election. Clarke & Hall, 407. 20 [PART L CHAP. II.] PERSONS COMPETENT TO BE ELECTORS. 2, persons under guardianship; 3, Indians not taxed; 4, persons excused from taxation at their own request; 5, persons convicted of certain crimes; 6, persons of color; and, 7, persons in the military, naval, or marine service of the United States. A brief notice of some of the principal of these disqualifications will suffice. 1. Paupers. 48. Paupers, in consequence of their dependency of situation, and want of the common necessaries of life, which render it improbable that they will exercise a free choice, are expressly disqualified from voting by the constitutions of Maine, Massachusetts, New Hampshire, New Jersey, Delaware, Rhode Island, and Virginia. The term "pauper," in the precise and technical meaning, which it has acquired in this country, is understood to designate a person, who, either upon his own request, or otherwise, receives aid and assistance for himself, or his family, from the public provision made by law for the support and maintenance of the poor.2 49. In England, the receiving of parish relief, for the ordinary support and maintenance, either in whole or in part, of the voter or his family, within a year, previous to the election, is held to be a disqualification; 3 in this country, the situation of the voter, at the time of the election only, or at the time of taking the preliminary steps, if any are requisite, to the exercise of the right of suffrage, would probably be regarded; and it seems immaterial, whether the support is wholly or only in part derived from the public provision made for the poor; the reason of the disqualification being equally applicable in both cases. 5. Persons convicted of certain Crimes. 50. Convictions of certain crimes furnishes so obvious a ground of disqualification, both as a punishment for crime, and as conducing to the purity of elections, that it is expressly inserted as such, for the crimes therein respectively enumerated, in the constitutions of Rhode Island, Connecticut, New Jersey, Delaware, Virginia, Maryland, Louisiana, Wisconsin, and California. In the constitutions of New Jersey and Delaware, it is further provided, and in those of New York, Florida, Tennessee, and Indiana, it is declared, that laws may be passed disqualifying persons convicted 1 Male on Elections, 290. 2 Sturbridge v. Holland, Pickering's Reports, II. 459. 21 3 Male on Elections, 290. LEGISLATIVE ASSEMBLIES. of crimes, from exercising the right of suffrage. This disqualification, like other consequences of conviction, would probably be held to be removed by the exercise of the ordinary pardoning power; but the disqualification is to continue, by the constitution of Rhode Island, until the party is expressly restored to his right of suffrage by an act of the general assembly; by that of New Jersey unless he is pardoned and restored by law to the right of suffrage, and by that of Wisconsin restored to civil rights. 51. The conviction mentioned in the preceding paragraph must undoubtedly have taken place before the tribunals of the State, in which the convict claims a right to vote, according to the laws of such State; but by the constitution of Missouri the disqualification is also extended to persons convicted of any felonious or infamous crime in any foreign country or any State in the Union, or who are become fugitives from justice, on account of the com-% mission of such crime; provided it be not one of a political nature, or one which would not be considered felonious or infamous in Missouri. 52. In England, it seems, that conviction of any crime denominated a felony disqualifies, by the common law of parliament; 1 but, in this country, where the word felony has a much greater extent and variety of meaning, such a conviction would not probably be held a disqualification, unless expressly so provided by constitution or law; 2 still, in the case of conviction for any offence, which subjects the offender to confinement as a punishment, he would, of course, in the mean time, while such imprisonment lasted, be precluded from exercising the right of suffrage as effectually as if he was thereby disqualified. 6. Persons of color. 53. The constitutions of Connecticut, New Jersey, Delaware, Maryland, Pennsylvania, Virginia, South Carolina, Tennessee, Indiana, Louisiana, Mississippi, Illinois, Missouri, Ohio, Florida, Kentucky, Michigan, Arkansas, Iowa, Wisconsin, California, and Alabama, among the terms which they respectively use to describe the qualifications of electors, employ the word " white;" while the constitutions of New York, North Carolina, Indiana, Texas, and Tennessee, contain provisions, by which persons of color are variously disqualified, in express terms. In order to present the subject 2 This is the case by the constitution of Delaware. 22 [PART 1. I &dbury, Phillips, 181,189. CHiAP. III.] PERSONS COMPETENT TO BE ELECTED. under a single point of view, these provisions may all be enumerated under the head of disqualifications. In the first-mentioned.States, therefore, persons who are not white; — in New York, men of color, except under certain conditions: -in North Carolina, negroes, mulattoes, and persons of mixed blood (that is, descended from negro ancestors, to the fourth generation inclusive, though one ancestor of each generation may have been a white person);-in Indiana, negroes, and mulattoes; in Texas, Africans and the descendants of Africans; -and, in Tennessee, persons, who, by reason of their color or descent, are not competent witnesses in a court of justice against a white man;-are disqualified from being electors. In other States, in some of which Indians 1 are in whole or partly disqualified, color affords no ground of disqualification. 2, 3, 4, 7. Other Disqualifications. 54. In Maine, Rhode Island, and Massachusetts, persons under guardianship for whatever cause; -in Maine and Texas, Indians not taxed;- in New Hampshire, persons excused from taxation at their own request;- in Rhode Island, members of the Narraganset tribe of Indians; - and, in New Jersey, Delaware, Virginia, Florida, Louisiana, Indiana, Illinois, Arkansas, Texas, Iowa, Missouri, and Alabama, persons (sometimes the restriction applies only to those under the rank of officers) in the naval or military service of the United States; -are disqualified from being electors.2 CHAPTER THIRD. OF THE PERSONS COMPETENT TO BE ELECTED. 55. Eligibility to the legislative assemblies of the States or of the Union depends almost entirely upon constitutional provision; it being a general principle, that no further conditions of eligibility can be required by law than are specified in the constitution under which it is made, but for the reasons already suggested in regard to 1 See Biddle and another v. Wing, Clarke of the several States may have escaped no& Hall, 504, 411. tice; but those above given, which are among 2 It is not improbable, that some of the dis- the most prominent, are, it is believed, suffiqualifications enumerated in the constitutions cient for the purposes of this work. 23 LEGISLATIVE ASSEMBLIES. the competency of electors, it will be convenient to consider the subject of eligibility to office, first, under the head of qualifications and disqualifications by the common political law, second, under the head of the qualifications required, and, third, under that of the disqualifications specified, by the several State constitutions. SECTION I. -OF QUALIFICATIONS AND DISQUALIFICATIONS BY THE COMMON POLITICAL LAW. 56. The same descriptions of persons, namely, minors,1 idiots and lunatics,2 women,3 and aliens,4 who have already been mentioned as excluded from the right of suffrage, by the common political law, are also prohibited, and for the same reasons, from being elected to any political office whatever. Such persons, consequently, cannot be members of a legislative assembly, even in those States where the constitution is silent with reference to their eligibility. 57. It may also be laid down as a general principle, founded in the nature of representative government, which supposes the electors except in particular instances to elect from among themselves, that no person can be elected to any office, who is not himself possessed of the requisite qualifications for an elector; and, consequently, that whatever other and different qualifications or disqualifications may be specified, every person, who is voted for as a member of a legislative assembly, must at all events possess the qualifications and be free from the disqualifications which attach to the character of an elector.5 In the States of Connecticut, New Jersey, Wisconsin, Louisiana, Ohio, California, and Rhode Island, the electors and elected are expressly put upon the same footing as to qualifications. In almost all the constitutions, the qualifications of members of the legislature are particularly specified. Where these qualifications are of the same nature with those required of an elector, either wholly or in part, the latter are of course superseded to the same extent; as, for example, where residence is required as a qualification both to elect and be elected, but different periods of time are prescribed in the two cases. 58. In England, minors have frequently been chosen and returned members of the house of commons, and their election as frequently 1 Flintshire, Peckwell, I. 528. See ante, 4 Ante, ~ 32. ~ 25, 26. 5 See the constitutions of Vermont and Mas* 2 Ante, ~ 27, 28. sachusetts; -Amer. Const. 71, 78, 87. 8 Ante, ~ 29, 30, 81. 24 [PART I. CHAP. III.] PERSONS COMPETENT TO BE ELECTED. declared void. Party or caprice, however, sometimes adopted a different doctrine, and allowed them to sit; till at length, the ques tion was settled by a statute passed in the 7 and 8 of William III., by which minors under the age of twenty-one were declared ineligi ble and their election void. Notwithstanding this statute, however, minors have been since occasionally returned as members of the house of commons, and have been permitted to sit without com plaint. The great orator and statesman, Charles Jame~ Fox, was, it is said, under age when he first became a member of the house of commons; but though he participated in the debates, he is said not to have voted, until after he had attained the legal age. Other instances of minors sitting as members have doubtless occurred, both in England and in this country. 59. In England, also, there have been conflicting resolutions of the commons, in regard to the eligibility of persons in holy orders; but for the most part, such persons have been declared incapable of sitting. The question was very fully considered in 1801, in the case of John Horne Tooke, who having been returned a member was objected to, as being in priest's orders. A committee was thereupon appointed to examine the journals and records, for precedents; and, upon their report, and a motion made, that the reverend John Horne Tooke, "being at the time of his election in priest's orders, was and is incapable of sitting" as a member, the motion' was negatived. An act of parliament was thereupon passed, in order to remove all doubts, by which it was declared, that no person, having been ordained a priest or deacon, or being a minister of the Church of Scotland, shall be capable of being elected a member of the house of commons. The reason for passing this statute can scarcely have been any supposed incompetency of persons in holy orders, for the performance of legislative duties; seeing that the higher dignitaries of the church have an equal place among the hereditary legislators of the land; but is rather to be found, in the fact, that a proper attendance upon their parliamentary duties would necessarily interfere with and prevent the discharge of those higher duties which belong to the solemn trust reposed in them for the cure of souls. In this country there are several of the States, as for example, Maryland, North Carolina, South Carolina, Kentucky, Missouri, and Texas, in which ministers of religion are excluded from the legislative function; and, unless expressly ex-, eluded, such persons are clearly eligible, and have frequently been returned as members, and have sat as such, both in the legislative assemblies of the States and in congress. In Massachusetts, it~ 3 25 LEGISLATIVE ASSEMBLIES. was attempted, in the year 1788, but without success, to set aside the election of a minister of the gospel, as a member of the house of representatives, on the ground, that those who impose taxes upon the people ought to be those only who pay a proportion of those taxes, which ministers of the gospel were not then obliged to do.1 60. Idiots and madmen, according to the English authorities, are clearly ineligible, as having no judgment, and are therefore incapable of executing the trust of a member;2 but lunatics, that is, persons whose insanity is subject to periodical intermissions, are eligible during their lucid intervals.3 Deaf and dumb persons are also said to be ineligible; 4 but this must be considered as doubtful, since the great improvements which have been made in modern times in the education of the deaf and dumb. Persons who are totally blind are not, for that reason, ineligible; and many such persons have sat in parliament, as well as in the legislative assemblies of this country. SECTION II. OF Q(UALIFICATIONS EXPRESSLY REQUIRED. 61. The following are the various qualifications prescribed by the constitutions of the several States and of the United States, the possession of one or more of which is necessary to qualify a person for election as a member of a legislative assembly, namely: 1st, citizenship for a certain period;5 2d, arrival at a certain age; 3d, residence within the State for a certain period, and, for a part thereof, within a particular district; 6 4th, the possession of a freehold, or other specified property of a certain value; and, 5th, payment of a tax. As these qualifications have already been considered, in reference to electors, it will only be necessary to call attention to one or two particulars, having reference to their application to the competency of persons to be elected. 62. In England, residence within the constituency to be represented has not been for a long period deemed necessary to qualify one for election to the house of commons; though an ancient statute (1 Henry V., c. 1; 23 Henry VI., c. 15,) which was not repealed until the 14 George III., c. 58, (1774,) required, that none but residents in the counties, cities, and boroughs where they are 1 Gray, Cushing, S. & J., 28. 4 Male on Elections, 34. 2 Whitelocke, I. 461. 5 See Ramsay v. Smith, Clarke & IHall, 28; 3 Hate oil Farliameint1 110i +rampounl 9 Case of Albert alat af e b], Oct. 1566; D'Ewes, 126; Rogers on Elections, 6 See Case of Phillip B. Key, Clarke & Hall, 48; Male on Elections, 34. 224; and Case of John Bayley, Same, 411. 26 [PART L PERSONS COMPETENT TO BE ELECTED. chosen, should be elected; but this law had been long disregarded, and says Whitelocke, "by time and connivance to contrary practice, is become as if it had not been made." 63. This dispensation with the requisition of residence enables constituencies to select their members from any part of the kingdom; in consequence of which, it frequently happens, that the same person is elected and returned for two or even more different places. When this occurs, the member makes his election, soon after the house assembles, for which of these places he will serve; and a new election takes place for the other. But a member can only be thus chosen for two or more places on the occasion of a general election, when all the elections are going on at the same time and none of the persons elected are as yet returned; for as soon as a member is returned, he is considered as the representative of the whole people, as well as of the particular constituency by which he is returned; and, hence, when a special election takes place to fill a vacancy, although the constituency may elect its member without regard to residence, yet a person already returned is not eligible. 64. The constitution of the United States requires that representatives and senators should reside within the State for which they are chosen; and the constitutions of the several States, except South Carolina, that members of the legislature should reside within the district or place, which they are chosen to represent. In South Carolina it is only necessary that members should reside within the State. This is the only State, it is believed, in which the members of its legislative assemblies are not required to reside within the constituencies for which they are elected. 65. The constitution of the United States having prescribed the qualifications required of representatives in congress, the principal of which is inhabitancy within the State in which they shall respectively be chosen; leaving it to the States only to prescribe the time, place, and manner of holding the election; it is a general principle, that neither congress nor the States can impose any additional qualifications. It has therefore been held, in the first place, that it is not competent for congress to prescribe any further qualifications, or to pass any law which shall operate as such. Upon this ground, it has been decided by the house of representa 1 In the convention, which was called in of the most distinguished of its members were 1853, to revise the constitution of Massachu- elected by and sat for constituencies, inll which setts, and which depended entirely upon a law they did not reside. of the previous year for its existence, many 27 C]AAP. III. LEGISLATIVE, ASSEMBLIES. tives in congress, that a clause in the apportionment law of June 25, 1842, which required that each State should first be districted for the purpose, and that elections should take place in the districts, respectively, was void, and that elections by general ticket therein were valid.1 66. It has been decided also, upon the same principle, that it is not competent for any State t6 add to or alter them; 2 and, therefore, where a law of the State of Maryland, by which it was provided, that two representatives should be chosen from a particular district, required also that one of them should reside in one part of the district, and the other in another part, the requisition as to residence was held void by the house of representatives.3 67. The qualifications of an elector are, in general, referrible to the time when the lists of votes are prepared, or when the right of suffrage is to be exercised. Those of a member. which are expressed in a great variety of forms, sometimes relate to the time of election; sometimes to that of exercising the functions of membership; and are sometimes required by reason of their nature, or of some express provision, to continue during the whole period of membership. 68. Where the language used is, that "no person shall be a representative or senator," as in the constitutions of the United States, Maine, and many others, "shall be entitled to a seat," or "shall be a member unless, &c.," as in the constitution of Missouri; -in these cases, the point of time, to which the qualifications thus alluded to are to be referred, is that of being qualified and assuming the functions of a member. 69. The following phrases, namely: " any person may be elected," as in the constitution of Virginia;-" no person shall be capable of being elected," as in those of Newr Hampshire and Vermont; - " when elected," as in the constitution of the United States; -" at the time of his election," as in that of Kentucky;- - "no person shall be eligible to a seat in the house unless, &c.," as in that of South Carolina; refer the time of the qualification, in connection with which they are used, to the day of the election. 70. Where the qualification of a particular age is described by the terms " attained to the age of," as in the constitutions of the United States, Virginia, Mississippi, and Alabama; -"arrived at the age of," as in that of Maine; " not of the age of," as in that 1 See Cong. Globe, XV. 80; Same, XIII. the districts for which they are respectively 178, 276. elected; and this requisition has hitherto been 2 The law of Massachusetts requires that complied With. members of congress shall be inhabitants of 3 Barney v. Mc Creery, Clarke & Hall, 167. 28 [PART 1. CHAP. III.] PERSONS COMPETENT TO BE ELECTED. of New Hampshire; —" shall not have attained the age of," as in those of Georgia, Kentucky, Tennessee, Louisiana, Illinois, Missouri, Delaware; the qualification is completed on the day of attaining the age prescribed; but, where the expression is, "above the age of," as in the constitution of Maryland, the qualification is not complete, until the day of attaining the given age has expired. 71. Where citizenship, residence, possession of property, or any other qualification is required for a certain number of years, "preceding," or "next preceding," or "above [so many] years next preceding," or "previous to" the election or some other event, the day of that event is to be excluded. 72. The term "usually," in the phrase "shall have usually resided," seems to be wholly unnecessary; the qualifying force of it being included in the idea of residence. 73. In several of the constitutions a clause is inserted, that residence shall not be effected by an absence from the State, on business of the State, or of the United States; (the constitution of Mississippi adds, or on a visit or necessary private business;) but this exception can hardly have been provided for any-other reason than out of abundant caution; as, by the law of nations, persons temporarily absent from the place of their residence, on public (or even private) business, do not thereby incur the loss or even suspension of their domicil.1 74. In reference to electors, it seems to be immaterial, if they are duly qualified on the day on which they give their suffrage, whether they continue to be so afterwards or not. In reference to persons elected members of a legislative assembly, to remain in office for a certain time, there seems to be as much reason for requiring that they should continue to be duly qualified during the whole of the term, as that they should have possessed the requisite qualifications at the time of their election. But, unless there is an express provision to that effect, it does not seem to be necessary that the qualifications of members should continue.2 75. The property qualification, though generally given up as to electors, still exists in some of the States, as to the persons to be elected. In Massachusetts, until a recent amendment of the constitution, every member of either branch was required to possess a certain amount of estate. But this qualification was practically of .K 1 Case of John Bailey, Clarke & Hall, 44; senators) and New Hampshire, it is expressly Case of John Forsyth, Clarke & Hall, 497. provided, that the qualification of residence, 2 Storv on the Constitution, III. 95. In and in North Carolina, that of property,Maine, Massachusetts, Pennsylvania (as to shall continue during the term. 3* . 29 LEGISLATIVE ASSEMBLIES. little effect, in consequence of the difficulty of proof; it being held, that the burden of proof was in all cases upon those who questioned the member's qualification, and that no member ought to be called upon, in the first instance, to prove himself a qualified member, m according to the constitution.1 In England, where a property quali fication is required of members of parliament, the difficulty of proof is obviated, by making it the duty of every member, when he takes the oath, to deliver in at the same time, a declaration accom panied by a specification of his qualification as to property. With out such declaration, no member is at liberty to sit or vote; and a false declaration is punishable as a misdemeanor. SECTION III. -OF DISQUALIFICATIONS EXPRESSLY DECLARED. 76. Besides the negatiye disqualifications resulting from the want of the requisite qualifications, the several constitutions enumerate many others of a positive character; but as they are altogether too numerous to be examined in detail, it will be most convenient to consider them in two classes; first, those which result from the holding of an office, or from an employment or profession, the functions of which are deemed incompatible with the duties of a member; and, second, those which are of a personal nature, and peculiar to the individual. 77. The offices and employments, the possession or exercise of which disqualifies one from being chosen or acting as a member of a legislative assembly, are particularly enumerated in the several constitutions. In the constitution of the United States the only provision of this kind is, that no person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not when elected be an inhabitant of that State in which he shall be chosen. The State constitutions enumerate, sometimes in much detail, three classes of official persons whom they interdict, in some form or other, from legislative functions, namely, all persons exercising or possessing offices under the authority of the United States, and all persons connected with the executive or judicial department of the government of each particular State. In England, persons connected with the administration of the executive branch of the government always have seats in one or the other of the houses of 1 Pembroke, Cushing, S. & J., 22, note. 30 [ PART I. PERSONS COMPETENT TO BE ELECTED. parliament; in this country, such persons are carefully excluded from legislative functions. This difference between the constitution of parliament and that of the legislative assemblies of this country has led to important differences in the parliamentary practice of the two countries, to which allusion will be made in another place. 1. Disqualifying Offices or Employments. 78. Disqualifications of this kind result from the holding of certain offices, or from the exercising of certain employments, commissions, and professions, the functions of which are deemed incompatible with the proper discharge of the duties of a member, but of which one may divest himself at pleasure, and which are therefore relative rather than absolute. In general, as these disqualifications are not derived from the personal character of the individual, or inflicted by way of punishment, they do not render him ineligible, that is, incapable to be elected, but prevent him from assuming the functions of a member until they are removed.1 But this depends upon the language used in reference to each particular disqualification, and the time to which it relates. Thus, where it is said, that no person, holding a particular office, &c., "shall have a seat; "-" shall be a member;" -" shall at the same time have a seat;" -" shall hold a seat;" -" shall be capable of having a seat; "-"shall be capable of being a member; " - shall be capable of holding any office; "- " shall act as a member;" the disqualification relates to the time of assuming the functions of a member; 2 but where the following terms are used, namely,"shall be incapable of being elected;"-" shall be eligible to a seat;" " shall be eligible as a candidate for; "-" shall be ineligible; " the disqualification relates to the time of the election. 79. The offices, which are most usually declared in express terms to be incompatible with the functions of legislation, are those of a judicial character. It may perhaps be doubted, whether such a declaration is necessary. The separation of the several departments of government from one another is in this country so fundamental and essential, that a judge, at least, of any of the higher courts, would hardly be considered eligible to the legislature, although not expressly excluded. In England, the judges of the higher courts are excluded from being members of the house of commons, on 1 Paynter's Practice at Elections, 55; Doug- 297; Case of Elias Earle, Same, 814; Case of lass, I. 143; Douglass, II. 450. George ~]fumt7ford, Same, 316; Sullivaz, Cush 2 See HIammond v. Ilerrick, Clarke & Hall, ing, S. & J., 39. C.HAP. III.] 31 LEGISLATIVE ASSEMBLIES. account of their being required to attend as assistants in the house of lords; and for the further reason, that their judicial functions are considered as incompatible with the character of representatives of the people. They are not, however, expressly excluded by any statute, and the exclusion does not apply to all persons who exercise judicial functions. 2. Personal Disqualfcations. 80. This description of disqualifications results either from the doing of some act of a criminal nature, as, in Tennessee, duelling and bribery, and, in Mississippi, denying the being of a God, or a future state of rewards and punishments, or from the conviction of some crime or offence, which, by the constitution alone, or the constitution and laws1 of a State, is declared to be a ground of exclusion from a seat in the legislature. In some of the States, it is the commission of the crime which disqualifies; in others and the greater part, a conviction is also necessary. The offence, which, more commonly than any other, is made a disqualification, is that of bribery in obtaining an office or appointment. 81. It seems to be immaterial, in regard to personal disqualifications, whether the time to which they refer is that of the election, or that of assuming the functions of a member; inasmuch, as they are not in the power of the party himself, and cannot be put off at pleasure. Where they are inflicted as a punishment, the exclusion is either perpetual or for a time limited.2 In the latter case, the disability is, of course, removed by the expiration of the time; in both cases, it may, in general, be entirely abrogated by a pardon. 82. Expulsion, from a former or from the same legislative assembly, cannot be regarded as a personal disqualification, unless specially provided by law.3 83. In concluding the subject of disqualifications, it is proper to remark, that no person is excluded from being elected, by reason of his not being, at the time of the election, in a situation to assume or perform the functions of a member; thus, one who is temporarily absent from the country, or is sick, or imprisoned, 1 In some of the States, authority is ex- a perpetual, but, in others, only a temporary, pressly given by the constitution to the legis- disqualification. Where disqualification follative power, to inflict disqualification as a lows a conviction on impeachment, it may be punishment for certain crimes. either for a time or perpetual. 2 In most of the States, a conviction of brib- 3 See Wilkes's Case, Male on Elections, 46; ery, in obtaining an office or appointment, is Rogers on Elections, 75. 32 [PART L MODE OF ELECTION. either for debt, or as a punishment, may nevertheless be elected, and may take upon himself the functions of a member, when he returns, or recovers, or is discharged from his confinement. One who is imprisoned for debt, either on mesne process, or in execution, may not only be elected but will be entitled to be discharged from his imprisonment for the purpose of attending his duty as a member.1 84. It seems necessary also to remark, that a member may be expelled, or discharged from sitting, as such, which is the same thing in milder terms, for many causes, for which the election could not be declared void.2 CHAPTER FOURTH. OF THE MODE OF ELECTION. 85. The convening of a parliament in Great Britain is a branch of the royal prerogative, to be exercised by the sovereign, at his pleasure; the only restriction put upon it by law being, that no parliament can last for a longer period than seven years, and that the sovereign cannot allow a greater period than three years to elapse between the dissolution or expiration of one parliament and the calling of another; and, when the calling of a parliament is determined upon by the king in council, a royal proclamation is issued, directing the lord chancellor to summon the peers, and to send out writs for the election of members of the house of commons.3 The writs being sent out accordingly to the sheriffs of the several counties, those officers issue precepts to the proper officers of the cities and boroughs, within their several counties, for the election of members therein, and proceed themselves to call county meetings for the election of members for their several counties. The legislative assemblies of the colonies and provinces belonging to the British Empire are convened in the same manner by their local governors. 86. In this country, the place of royal prerogative is supplied, so 1 This subject will be considered at length, treating of the expulsion of a member as a under the head of privilege. punishment. 2 This subject will be again adverted to in 5 Appendix, ILI. CHAP. IV.] 33 4. LEGISLATIVE ASSEMBLIES. far as analogous powers exist in our governments, by written constitutions which generally prescribe the time for the election, as well as for the meeting, of the legislative assemblies. The election of the members being also provided for and regulated by the constitutions and laws, the municipal officers appointed for the purpose take the proper measures for effecting the election, in the manner required by law, without any previous command or warrant from any other authority, but merely in the regular discharge of their official duties. 87. The duties of these officers consist in preparing beforehand, (where required by law,) the lists or registers of the qualified voters, -in notifying the times and places for the meetings of the electors,-in receiving, counting, and declaring the votes,-in deciding whether any and who among the persons voted for are elected, - and in returning or certifying the election of the members chosen. In some of the States and in reference to certain elections, these duties are all performed by the same set of officers; in others, they are distributed among several.2 88. It would not be practicable, within the limits of this work, to present a complete view of the election laws even of a single State; nor does the subject require more than a statement of some of the leading principles, which are or may be common to all systems. It will be sufficient, therefore, to consider briefly: 1st, the right to vote; 2d, the different modes of voting; and 3d, the principle upon which the result of an election is to be determined. SECTION I. OF THE RIGHT TO VOTE. 89. Every person, possessing the qualifications required by the constitution and laws of the State in which he resides, and not disqualified thereby, has a right to give his vote at all elections for whomsoever he pleases, whether a candidate or not, and whether eligible or not;3 but, in order to entitle any one to exercise this right, it is necessary that he should have previously done every thing incumbent upon him by the laws, either in getting his name inscribed on the list of qualified voters, or in establishing his right by proper evidence at the polls. 1 Such neglect of duty, or abuse of official judicial capacity; in the former, in receiving authority, as will be sufficient to set aside an the votes and returning the persons elected; election, will be treated of further in the see- in the latter, in determining questions relating tion on controverted elections. to the right to vote, and in deciding upon the 2 In the performance of them, the officers result of the elections. act partly in a ministerial, and partly in a 8 Male on Elections, 30, note. 34 [PART L MODE OF ELECTION. 90. If an elector, therefore, having a legal right to vote, and having done every thing incumbent on him to entitle him to exercise his right, is wilfully and maliciously prevented from voting, by the officers whose duty it is to receive his vote, he may maintain an action on the case for damages against such officers; on the general ground, that, wherever the common law gives a right, or prohibits an injury, it also gives a remedy by action. 91. Equality being essential to the right of suffrage, that is to say, each qualified voter being the equal in point of right of every other voter, whatever difference there may be in other respects between them, no person can be permitted to give more than one vote at the same election. If a second vote is given, it will not only be void, but if given knowingly and corruptly, will, in most, probably in all the States, subject the voter to punishment. The rule is the same, whether there is only one person to be elected, or whether two or more persons are to be chosen at the same time. In the latter case, each elector must vote for all the persons who are to be chosen, or as many of them as he pleases, by one and the same act; he cannot be permitted to give his vote first for one, and, after some interval, to come again to the polls, and vote for another; such a mode of voting by instalments would introduce the utmost confusion.2 92. This principle is only applicable to the same trial or attempt to elect; for if no election is effected at the first trial, and a second attempt takes place, or a new election is ordered, electors may not only vote again, but give their vote for a different or even opposing candidate;3 nor in case of an equality of voices, have returning officers, as such, any right to vote a second time, and give a casting vote, in order to determine the election, or, which is the same thing, to return one of the candidates in preference to the other. This authority may be conferred upon returning officers, as it is by the constitution of Missouri in regard to elections of sheriff and coroner, by the constitution or laws of their State; but if no such authority is given them, returning officers, if qualified as electors, vote merely as such. 93. Where, however, several persons are to be chosen at the same time, unless there is some express provision of law to the contrary, or it is manifestly impracticable from the nature and situation of the constituency, or by reason of other circumstances, there is nothing to prevent the election of several persons from being 1 Appendix, III. tions, 136; Draper v. Johnston, Clarke & Hall, 2 Bridgewater, Peckwell, I. 109; Comm. 703. Jour. XIII. 90; Same, XV. 135; Male on Elec- 3 Winchelsea, Glanville, 21. CHAP. IV.] 135 LEGISLATIVE ASSEMBLIES. made separately; and where there is any doubt as to the number of persons to be elected, it is exceedingly important, if it can be done, that they should be so elected; for, where more persons are chosen and returned than a constituency is entitled to elect, if they are all chosen at once, the whole election will be void; 1 but if chosen separately, the election of those only will be void, who are chosen after the proper number has been elected.2 The reason is, that in the first case, it is impossible to discriminate among the persons elected, and to assign the election to any of them, in preference to the others;3 whereas, in the case of separate elections, the right of the constituency being exhausted, when the requisite number has been elected, all the further proceedings are merely nugatory. SECTION II. OF TEE DIFFERENT MODES OF VOTING. 94. Of all the modes of election, which have been practised among different nations, and at different times, two only are in general use in the United States, namely, the viva voce or oral, and the ballot or written, suffrage. In the constitutions of New Hampshire, Vermont, Massachusetts, and Rhode Island, the method of voting by ballot is considered to be established as the method in general use, and is sanctioned either in express terms or by equivalent language; in those of the following named States, it is expressly required, with some unimportant exceptions, in all general elections, namely: Maine, Connecticut, New York, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina, Florida, Alabama, Mississippi, Louisiana, Tennessee, Ohio, Indiana, Illinois, Michigan, Texas, Iowa, Wisconsin, and California; in the constitutions of four States, namely, Virginia, Kentucky, Georgia, and Arkansas, is the system of viva voce or oral suffrage prescribed at all general elections; while in those of Pennsylvania, California, Missouri, Florida, Louisiana, Tennessee, Ohio, Michigan, Alabama, inhabitants of any town or city were entitled to elect, and the state of the vote therefor was preserved, that the election of the proper number should be determined by the votes given respectively for each. 2 West Spr-ingfield, Cushing, S. &4'J., 64; Bat~h, Same, 73; Dighton, Same, 74; Oxford, Same, 75; Sutton, Same, 80,154; Belchertozwn, Same, 103; Westford, Same, 141; Malden, Same, 293. 3 See Cong. Globe, VII. 135. I The lgw of Massachusetts provides, that "if, at any election, a greater number of candidates, than the number to be elected, shall severally receive a majority of the whole number of ballots, a number equal to the number to be elected, of such, as have the greatest excess over such majority, shall be deemed and declared to be elected." Rev. Sts. c. 4, ~ 13. Perhaps, in that State, it would be held, under this provision, that if a greater number of members were returned than the It 36 [PART I. MODE OF ELECTION. Iowa, North Carolina, Kentucky, Wisconsin, Arkansas, (in certain cases,) and Indiana, this system is required to be pursued only in elections by the legislature. Where the system of oral suffrage prevails, the elector makes a declaration to the returning officer, or to some person appointed by him, of the person or persons for whom he votes; which declaration is entered in a book provided for the purpose, called the poll book. In elections by ballot, each voter gives his suffrage by means of a piece of paper, or other convenient material, having the name of the person for whom he votes written or printed on it, which he deposits in a box, or urn, or other suitable receptacle provided for the purpose by the proper officers, and kept in their custody during the election. The distinguishing feature of the oral suffrage is publicity; that of voting by ballot, secrecy. When the particular mode is prescribed by law, or established by usage, no other can be regularly pursued.1 The importance of the subject renders it proper to describe these modes of proceeding, and to state the principles applicable to each, with some degree of minuteness. 1. Oral Suffrage. 95. In England, where members of parliament are elected by oral suffrage exclusively, the mode of proceeding is as follows: - The electors being assembled together for the purpose of the election, the sheriff or other returning officer usually inquires of them, in the first instance, whom they elect to serve them in parliament. The candidates are thereupon proposed; each of them, to the requisite number, being nominated by one elector, and seconded by another. If no more candidates are proposed than are required to be chosen, those who are named, being thus silently agreed to, are to be declared duly elected, and immediately returned. 96. If opposing candidates offer themselves, or are proposed by the electors, the returning officer determines upon the view who are the choice of the major part of the electors, and makes declaration accordingly. If the electors are unanimous, or a few only dissent, it is easy to determine the election in this manner; but, if the returning officer is in doubt, or a poll is demanded, either by a candidate or an elector, (which demand must be made in due time, that is, before the majority is declared upon the view, or within a reasonable time afterwards,) the officer must then proceed 1 Easton v. Scott, Clarke & Hall, 272. 4 CHAP. IV.] 37 4. LEGISLATIVE ASSEMBLIES. to take the poll, or, in other words, to try the question by the numeration of the voices, in the manner already mentioned. When the votes have all been thus taken, and counted, the returning officer announces to the electors which of the candidates have the requisite number of voices, and declares them to be duly elected. An election, at which there are opposing candidates, is said to be contested. 97. In taking the poll, it frequently happens, that objections are made to particular votes, which are of a nature to require a more deliberate examination, than the hurry of the moment will admit of; or that doubts arise, in regard to votes, which may be removed on further inquiry. In such cases, it is usual for the returning officer to receive the votes, subject to his ulterior determination, whether to admit or reject them.1 Votes received in this manner, which are denominated queried votes, must be examined and decided upon immediately on closing the poll, and before declaration of the election; and, if the returning officer is thereupon satisfied that they ought not to be received, or if the parties neglect or refuse to make them good, they are to be struck off the poll; otherwise they are allowed to remain. 98. Where votes are merely questioned in this manner, and a scrutiny is not called for, the returning officer has no authority to strike off any other votes; but if a scrutiny is demanded by a candidate, or by two or more electors, and the returning officer deems it necessary, (which is a matter entirely within his discretion,) the whole poll is then open to revision. A scrutiny is defined to be a general reconsideration, by the returning officer, or by other persons appointed by him, of the entire poll, or of the validity of particular votes; or an examination of the grounds of certain claims, which have been respectively received or rejected; and amending the poll by correcting or establishing the decisions so made, as they may prove to have been erroneous, or otherwise.2 99. When an elector has once voted in this form, he is not at liberty afterwards at the same trial to change his vote; but if, after it has been reduced to writing, that is, entered on the poll book, it appears to have been taken down for a wrong candidate, by mis 1 Male, 140. a return, which he did, of Lord Hood and Mr. 2 In the contested election for Westminster, Fox. The inconvenience of this case led to in 1784, the returning officer granted a scru- the passing of a statute, regulating polls and tiny, which lasted not only until after the scrutinies, which among other things provides, return day of the writ, but for several months that no scrutiny shall be protracted beyond after the sitting of parliament. The house of the return day of the writ. commons at length directed the officer to make 38 [ PART 1. MODE OF ELECTION. take, the vote may be corrected on clear and satisfactory evidence of the mistake, provided application be made for that purpose to the returning officer, before the close of the poll.1 100. The poll is to be closed, when all the electors who intend doing so may be presumed to have voted. But, as a man is not compellable to give his suffrage at all, or at any particular time, but at such period of the poll only, as he thinks will best serve the candidate to whom he gives it, or best suit his own convenience, it is left to the impartial discretion of the returning officer, regulated by common usage, to determine what time he will allow, towards the end of the poll, for the voters to come in. It is usual to make three proclamations at a small interval from each other, that the poll is about to be closed at a certain time, which is a fair notice to the remaining voters to come in. At the time appointed, the poll book is closed.2 101. When all the proceedings, which may intervene between the taking of the poll, and the declaration of the result, have been brought to a close, the returning officer declares who are elected, and proceeds forthwith to make his return.3 102. Such is an outline,- very briefly sketched,- of the manner in which an election of a member of parliament is conducted in England. The form of proceeding, in those parts of the United States, where oral suffrage is practised, is the same in substance; with such modifications as may have been introduced by the constitution and laws of each particular State. 2. Ballot. 4 103. A ballot may be defined to be a piece of paper, or other suitable material, with the name written or printed4 upon it of the person to be voted for; 5 and where the suffrages are given in this form, 6 each of the electors, in person,7 deposits such a vote in a box was considered to be a question exclusively within the competency of the inspectors to decide. Adams v. Wilson, Clarke & Hall, 373. 6 Where the form of a ballot, or the manner of depositing it in the box, is prescribed by law, ballots must be prepared and deposited accordingly, or they will be rejected by the returning officer. Latimer v. Patton, Clarke & Hall, 69; Adams v. Wilson, Same, 373; Reed v. Corden, Same, 353. 7 See, as to voting by proxy, Case of John Richards, Clarke & Hall, 95,99; Case ofJoseph B. Varnum, Same, 112; Lynn, Cushing, S. & J., 255; Jackson v. TVay2ne, Clarke & Hall, 57, 59. I Male, 136. 2 Male, 173. 3 The form of this instrument will be described hereafter. 4 Printed votes are written votes, within the meaning of the provision in the constitution of Massachusetts, that 11 every member of the house of representatives shall be chosen by written votes." 2enshaw v. Foster, Picekering's Reports, IX. 312. 5 Where a ballot had the name of a candidate printed on it, but was defaced by a single stroke of a pen drawn over it, it was held by the inspectors, to be a blank vote; and this 39 C.HAP. IV.] LEGISLATIVE ASSEMBLIES. or other receptacle provided for the purpose, and kept in the custody of the proper officers. 104. Where two or more persons are to be elected to similar offices, at the same time, they may be voted for separately, that is, at separate ballotings; or they may be voted for all together on the same ballot; in the latter case, each ballot must contain no more (though it may contain fewer) names, than the number of persons to be elected; for, where more names are on a ballot than the number of persons to be voted for, it is impossible for the returning officers to determine which of them (amounting to the requisite number) the voter intends; and, consequently, such a vote must be rejected for uncertainty.1 105. Where several persons are voted for on the same ballot, for the same office, it is of no consequence to annex to the several names the offices for which they are respectively intended; but where different officers are thus voted for, it is essential that each of the names should be accompanied by a designation of the office, for which the voter intends it; and, if there is no such designation, the ballot must be rejected for uncertainty. 106. If a ballot happens to have the same name written or printed on it more than once, it is not therefore to be rejected; because, as it is but one piece of paper, it cannot be counted as more than one vote; and, though the same name is written on it several times, it is yet but one name. Thus, where ballots are prepared for distribution in the usual way practised in some of the States, that is, by the name of the candidate being written or sprinted several times on the same slip of paper, for the purpose of being cut up into separate ballots, and being nearly cut apart, but so as to adhere together at one end, and an elector inadvertently puts two votes not entirely separated into the box, they will be counted as one ballot, unless there are circumstances present, which afford a presumption of a fraudulent intent, in which case, they must either be rejected, or the whole ballot set aside. 107. Where several different officers, or sets of officers, are to be elected at the same election, two modes of receiving the votes may be practised, namely; either to receive all the ballots into one box, 1 In the case of Washburn v. Ripley, Clarke but this decision cannot be sustained upon & Hall, 679, the Committee on Elections held, any other principle, than that an elector may that a ballot, having three different names on vote against one man, without voting for it, and another, having two different names on another, which Lord Mansfield, in Rex v. it, given at a balloting for a member of con- Monday, Cowper, 530, declared could not be gress, might each of them be counted as a done. single ballot, in making up the whole number; 40 [PART I. MODE OF ELECTION. in which case, each ballot, besides the name of the candidate voted for, must contain also a designation of the office, and the ballots may either be separated, or the names be contained all on one sheet; 1 or to have as many boxes as there are officers, or sets of officers to be voted for, in which case, the several boxes must be labelled with the designation of the office, and the votes for each be deposited in the appropriate box. Where the first mode is adopted, the intention of a voter can only be known from the designation on his vote; where the other mode is used, it can only be known from the designation of the box in which the ballot is deposited; 2 but if ballots, which bear a designation for one office, are put into the box appropriated and designated for another, such votes are not necessarily to be counted for the latter.3 108. When an elector has once voted, in this form, that is, when he has placed a ballot in each box (if there be more than one) in which votes are to be received, whether he has thereby fully exercised his right of suffrage or not, he cannot be permitted to add to, or to alter his vote,4 any more than when the voting is oral, not even when he has by mistake voted differently from what he intended. A mistake occurring on the part of the officers conducting the election, by which a voter is made to vote differently from what he intended, may as well be corrected where the voting is by ballot, as where it is oral. 109. If the material, of which a ballot is composed, is suitable for the purpose, that is, convenient in point of size and shape, and * sufficiently durable, and the writing or printing on it is legible and permanent, it can hardly be of any consequence what the material is, or in what manner the name is put upon it; unless these matters are particularly regulated by law. It is equally unimportant what sort of receptacle is used for receiving the ballots, provided it is sufficient to contain them and can be made reasonably secure.5 110. The name on a ballot being an essential part of it, it should be so written or printed, as to designate the person intended beyond any reasonable doubt. Where there are several persons United States, it appeared, flthat a large gourd was used for receiving the ballots; which during the adjournment of the poll, was se, cured by being carefully stopped, and tied up in a handkerchief; and it was held, that the direction of the law of Tennessee, requiring that the ballots should be placed in a box locked or otherwise well secured, was thereby sufficiently complied with. Clarke & Hall, 601.4* CHAP. IV.] 41 1In the city of Boston, the ballots atre all brought in on one sheet. 2 Washburn v. Ripley, Clarke & Hall, 679. 3 Case of Thomas Nasht, Jr., Cushing, S. & J., 439. 4 Washbur-n v. Ripley, Clarke & Hall, 679; Ante, ~ 97. 5 In the case of Arnold v. Lea, decided in 1830 by the house of representatives of the LEGISLATIVE ASSEMBLIES. of the same name in a constituency, all of whom are in fact equally eligible, and one of them has been designated as a can didate, ballots bearing that name are, by a reasonable intend ment, and without any further designation, supposed to be given for such candidate. Questions relating to the name arise from the use of additions or abbreviations, and from the name being mis spelt. 111. Additions to the name, as junior, senior, esquire, and the like, and titles prefixed thereto, as general, colonel, honorable, etc., constituting no part of the name, the general rule is, that they are to be wholly disregarded; so that all ballots, which bear the same name, however different they may be, in respect to such additions and titles, are to be considered as given for one and the same person.1 112. Abbreviations, which are in common use, such as those which usually and frequently occur in writing and printing christian names, must be considered as designating the persons intended with as much certainty as if the names were written at length. In regard to other abbreviations, and to the use of initial letters, in the place of names, no other general rule can be laid down, than that the name must be considered as properly written or printed on the ballot, provided the returning officers understand thereby, beyond a reasonable doubt, for whom the voter intends his vote. 113. When the name of a candidate is misspelt on the ballot, but still bears the same sound, when pronounced according to its orthography, with the true name, it is to be considered as the same to all intents and purposes; but, where the name on a ballot is spelt so differently from the true name of the candidate, for whom, if for any one, the voter probably intends it, as in reality to constitute a different name, though yet so similar as to render it probable that it was intended for such candidate, the only general rule seems to be, to regard such name as the same or as a different one, according the conviction of the returning officers as to the voter's intention.2 Where the name is not only different, but unlike, no question can arise as to the intention; because, it clearly amounts to a mistake 1 Turner v. Baylies, Clarke & Hall, 234; 2 Root v. Adams, Clarke & Hall, 271; MalWilliams v. Bowers, Same, 263; Willoughby v. lary v. Merrill, Same, 330, 331; Colden v. Smith, Same, 265; Guyon v. Sage, Same, 348; Sharpe, Same, 369. Hugunin v. Ten ~yck, Same, 501; Wright v. Fisher, Same, 518; Lynn. Cushing, S. & J., 236. 42 [PARlT I. MODE OF ELECTION. on the part of the voter, as to the name of the person for whom he intends to vote, which, as has already been stated, cannot be corrected. 114. Pieces of paper, of the shape, size, and general appearance of ballots, but without any name on them, placed in the ballot box by qualified voters, under the pretence of voting, are known by the incongruous name of blank votes or ballots; and, in some sections of the country, it is understood, are, or have been allowed to be counted as ballots, in making up the whole number of votes, where an absolute majority is necessary to a choice; on the ground that being cast by qualified voters as and for ballots, they must be received and allowed all the effect, of which they can, by any possibility, be capable, namely, that of being counted against the candidates voted for by the other electors. But this ground is wholly untenable, inasmuch as the right of suffrage is a right on the part of the electors to elect some one to an office, and not a right to prevent an election from being made; and, as all the electors have the same right, it follows, that each of them is bound to exercise his particular right in such a manner, as to allow to every other elector, the free and full exercise of the same right on his part; which would not be the case, if one elector had the power, by means of a blank, to defeat the vote of another for a particular candidate, without himself voting for anybody. Suffrage, being a solemn duty, as well as a fundamental right, ought neither to be neglected nor abused. Lord Mansfield,1 speaking of the election of members of parliament in England, where, as has been seen, the electors give their suffrages orally, said, that the only way of defeating the election of one candidate was by voting for another. The remark is equally just in reference to elections by ballot.2 SECTION III.L -OF THE PRINCIPLE UPON WHICH THE RESULT OF AN ELECTION IS DETERMINED. 115. In all collective bodies of men, assembled and acting together for the purpose of deliberating and deciding upon any 1 In the King v. Monday, Cowper's Reports, 530. 2 Blank votes cannot, of course, be given, where the voting is oral; nor, as will be seen hereafter, can they be supposed to have any effect at all, in elections by ballot, where a plurality alone is necessary to elect; unless indeed, the number of blanks exceeds the highest number of votes given, to any candi date; in which case, an effect might be given to them by regarding the balloting as ineffectual. In the house of representatives in congress, it is declared by a rule, (11,) that in all ballotings of the house, blanks shall be rejected, and not taken into the count in the enumeration of votes, or reported by the tellers. The same principle is declared by law in Massachusetts.- Rev. Sts. c. 13, ~ 4. CHAP. IV.] 43 LEGISLATIVE ASSEMBLIES. subject, or for the purpose of electing to any office, it is an admitted principle, that whatever is done or agreed to by the greater number shall stand as the act or the will of the whole. This principle assumes, as its basis, the absolute and perfect equality of all the individuals, one with another, who enjoy the right of suffrage, in the possession of the elements essential to the determination of any act to be done, or to the formation of any judgment to be pronounced, or to the effecting of any election to be made, as the act, judgment, or choice, of the whole. 116. This equality being conceded,- and, as the foundation of a system of government, it can neither be denied in fact, nor questioned in principle, - it is easy to conclude, first,s- that the knowledge and wisdom of the greater number taken promiscuously will be superior to the knowledge and wisdom of any smaller number of the same body of men; and, secondly, that, as whatever is done or resolved by the greater number affects and operates upon the individuals themselves composing it equally with the others, that which is so done must necessarily possess the quality of justice in a higher degree than the act or resolution of any smaller number would be likely to possess. It is upon these grounds, that the common sense of mankind recognizes the authority of the majority as the only solid foundation of all popular government. 117. The term majority, that is, the greater number, is understood in this country in two significations. In its broadest sense, it denotes the greatest of any number of unequal divisions of the whole body; in its strictest, the greater of any two unequal divisions of the whole body. In the popular elections of this country, both these principles are practically applied; the first being known as the principle of plurality; the other only as that of majority. 1. Plurality. 118. In elections, in which the principle of plurality is adopted, the candidate, who has the highest number of votes, is elected, although he may have received but a small part of the whole; and, where several persons are voted for at the same time for the same office, those (not exceeding the number to be chosen), who have respectively the highest number of votes, are elected. But, where two or more persons have equal numbers of votes, there is no election, and a new trial must take place, unless some other mode of determining the question is provided by law. In some of the States, where the votes are thus divided, the returning officers [PART L 44 MODE OF ELECTION. are authorized to decide between them, and to return which they please; but, unless thus expressly authorized by law, the returning officers have no casting vote. 2. Majority. 119. According to the definition just given, a majority as distinguished from a plurality being the greater of any two unequal divisions of the whole body, the candidate who is elected, where one only is to be chosen, must receive more votes than are given for all the other candidates put together; and, where two or more persons are to be elected at the same time, those who are elected must each of them receive a number not less than the greater of the two nearest unequal numbers, into which the whole number can be divided. If the whole number is an even one, the number necessary to a choice is its half, increased by one; if the whole number is uneven, the number necessary to a choice is the one half of the whole number increased by one; thus, if the whole number is ten, the number requisite to a choice is six; if the whole number is nine, the number requisite to a choice is five. 120. In order to determine the result of an election, on the principle of an absolute majority, it is necessary in the first place, to ascertain the whole number of persons who have voted; which, if the suffrages are taken orally, is effected by counting the names on the poll book; or if the voting is by ballot, by counting the number of ballots.2 121. This mode of ascertaining the whole number, although it seems to be the only practicable one, operates to the disadvantage of those of the candidates, if any, where several persons are voted for on the same ballot, whose names happen to be omitted from some of the tickets; because the number of votes, or majority, necessary for such persons to have, in order to be elected, being determined by counting all the ballots, including those which do not bear the whole number of names, and which, so far as those persons are concerned, are mere blanks, is increased beyond what it would be, if the candidates were voted for separately. 122. On the other hand, another mode of ascertaining the whole number, which has sometimes been adopted, with a view to avoid 1 Winchelsea, Glanville, 21; Ante, ~ 92; 2 Rev. Stat. of Mass. c. 4, ~ 13. See AndoQueen v. Chapman, Modern Reports, VI. 152; ver, Cushing, S. & J. 205. Reed v. Corden, Clarke & Hall, 353; Sundry Citizens v. Sergeant, Same, 516. 45 CHAP. IV.] LEGISLATIVE ASSEMBLIES. the inequality just alluded to, runs into the opposite extreme, and allows those whose names are on all the ballots to be elected by less than a majority. This mode consists in counting all the names on the ballots, and dividing the number by the number of persons to be chosen; the quotient is taken as the whole number of ballots given.1 This mode of proceeding has not been sanctioned. 123. If the candidates on both sides could be numbered consecutively, and each number considered as a separate balloting, these inconveniences attending the voting by general ticket would be remedied. 124. In Massachusetts, when it happens, as it may where an election of several persons is made at one balloting, that more persons have the requisite majority than the number of persons to be chosen, it is provided by statute, that the highest on the list, not exceeding that number, shall be considered as elected.2 The same statute also provides, that if the whole number of persons to be elected cannot be completed, by reason of any two or more having received an equal number of votes, the persons having such equal number shall be deemed not elected. The rules thus established are so reasonable and proper, and so entirely analogous to admitted principles of the law of elections, that they would probably be recognized, even though not sanctioned by any express provision of law. 125. The principles just stated lead to the conclusion, that where in any election, in which an absolute majority is necessary to a choice, the voting is by ballot, and the ballots are received and dealt with in such a manner, as to render it impossible to ascertain the number of persons voting, the whole proceeding is necessarily void. Thus, where two persons were to be elected at one balloting, and some of the voters gave in ballots containing two names, - some were allowed to give in two separate ballots with one name on each, - some gave in only one ballot with but one name on it, and the officers presiding at the election divided those ballots having two names on them into two, before counting,- so that the whole number of persons voting could not be ascertained, the election was held void.3 So where the officers presiding inadvertently omitted to sort and count a considerable part of the ballots.4 1 Charlestown, Cushing, S. & J., 167; Case 3 Wrentham, Cushing, S. & J., 70; Newbary, of William B. Adams, Same, 267; Wrentham, Same, 191; Braintree, Same, 395. Same, 70; Newbury, Same, 191. 4 Andover, Cushing, S. & J., 187. 2 Rev. Sts. c. 4, ~ 13. 46 [PART I. MODE OF ELECTION. 3. Origin and Introduction of the Majority Principle. 126. At the time of the first settlement and colonization of the United States, the elections of members of parliament in England were conducted upon the principle of plurality; which also prevailed in all other elections, in which the electors were at liberty to select their candidates from an indefinite number of qualified persons. Such has been and still continues to be the common law of England; and such is the present practice in that country in all elections. Indeed, what is meant there by the term majority embraces what is denoted with us by the word plurality. 127. In this country, however, the principle of majority, or absolute majority, as it is sometimes called, was early introduced into the law of elections by the colonists of New England; where it has ever since prevailed to a greater or less extent; in some of the States exclusively, in others only partially. 128. In the States, where this principle is established, it is usually provided by the constitution or laws, that an absolute majority shall be necessary to the election of certain officers. But, even in cases where there is no such express provision, an absolute majority is nevertheless required, in some of the States, in the election of officers, in reference to whom no other provision is made. Thus, in Massachusetts, the constitution contains no provision requiring representatives to be elected by absolute majorities, as it does in reference to the governor, lieutenant-governor, and senators; nor, until the year 1836, when the Revised Statutes went into operation, was there any general law, requiring such a majority in the election of representatives or other public officers of any kind; but still in all elections previous to that time, an absolute majority was considered as necessary, by usage and custom, as it has since become by positive statutory enactment. Indeed, the majority principle is so essential and fundamental in Massachusetts, that it prevails in the elections of all private corporations and associations, as well as in those of a municipal character.' 129. In all the States with the exception of some of the New constitution, was adopted by the legislature of 1854, and having been agreed to by the next legislature, and afterwards sanctioned by the people, it has become the supreme law of the land. In Maine, by the seventh article of the amendments to the constitution, the plurality principle has been introduced into the election of representatives. 1 The plurality principle has recently been introduced into this State, in regard to all elections for the choice of town, city, or county officers, by the act of 1854, c. 39, and in regard to the election of members of congress by the act of 1854, c. 70. A n am e ndment to the constitution, extending the same principle to the election of all civil officers under the 4 CHAP. IV.] 47 LEGISLATIVE ASSEMBLIES. England States, on the contrary, the principle of plurality generally prevails in reference to all municipal elections; being specially provided by the constitution or laws or usages of the several States. Whether, in the absence of any particular provision, the plurality or the majority principle would be recognized as the law, must depend, of course, upon the usage in each particular State. 130. It is not unreasonable to suppose, that the diversity, which thus exists in the mode of determining the result of an election, may be the source of corresponding diversities in the political character and history of the different States. But this is a topic, which it would be foreign to our present purpose to consider. It would be interesting doubtless to know what was the origin of this difference, whether it was accidental or intentional,- if the latter, was it the purpose in view, in the establishment of the majority principle, in some States, to secure greater permanence and stability ix the administration of the government, - or was the plurality principle maintained in others, for the purpose of preventing or destroying the influence of third and other minor parties, or whatever were the purposes in view, have those purposes been effected? These are questions, which do not probably admit of a satisfactory answer. The most that can now be done is to indulge in a conjecture, perhaps an ill founded one, that the origin and introduction of the majority principle are to be attributed to the proceedings under the colonial ordinances of Massachusetts, in the elections of the magistrates of the colony.1 131. In connection with this subject, it may be observed, that where there are but two sides to a question, -as for example, where a proposition is made in a deliberative assembly, and the members vote for or against it, - or where a particular person is nominated for office, and the electors vote for or against him, -or where an election of one out of two given persons is to be made,in all these cases, the majority and plurality are one and the same thing. 1 Appendix, IV. 1. t 48 [PART I. CHAP. V.] CHAPTER FIFTH. OF THE RETURN OF THE PERSONS ELECTED. 132. The election of members of parliament takes place, as already remarked, in pursuance of writs issued by the lord chancellor, in obedience to a royal proclamation.1 Like other writs, which require the doing of something by those to whom they are directed, a writ of election is to be executed, and, with the proceedings of the officer indorsed thereon, to be returned 2 into chancery, and there placed in the custody of the clerk of the crown, on or before a certain day named in the writ, called the return day. 133. When an election is effected, a certificate thereof is made, by indentures under the seals of the electors, or some of them, of the one part, and of the returning officer of the other; one part of which is attached to the precept, in the case of borough elections, or to the writ in the case of a county election, and is denominated the return.3 All the indentures of return are attached by the sheriff, to the writ of election, and with it returned by him into chancery.4 134. A writ of election, being returnable on a day named in it, must be returned accordingly, whether an election has taken place or not. Hence, returning officers sometimes make a special return, stating all the facts, where no election has been made; or a double return (as it is called) where they are unable to determine which of two, or of two sets of candidates, has been elected. It must be recollected, that, in England, members of parliament are elected by pluralities; and, consequently, that where the proceedings are regular and proper, there is but one case, in which there can be a failure to elect, namely, when two or more of the persons voted for have the same number of votes. 135. In this country, the election of the members and the convening of a legislative assembly being regulated by the constitution and laws, the proper officers proceed to the election, in the several constituencies, at the time appointed by law, of their own authority, and without any writ or precept from a higher power. With us, therefore, there being no writ or precept in ordinary cases, return 3 Appendix, V. 4 Rogers on Elections, 40. 5 ~....; II 1058 INDEX. SERGEANT-AT-ARMS, 335. duties of, 336, 1062. officers appointed by, 336. actions against, 337. vacancies in office of, 337. rooms of,. 342. to summon witnesses, 945. witnesses in custody of, 946, 948. SESSION, what constitutes, 495, 503, 507, 584. termination of, 495, 503. SETTLEMENT, a qualification of an elector, 46. SICKNESS, as affecting eligibility, 83. SOLICITOR-GENERAL, parliament may require services of, 1052. SOVEREIGN, introduction of name of, in debate, to influence proceedings, irregular, 1715, 1721. legislative power of, 1716. SPEAKER, appointment of committees by, 237. origin of term, 285. decision of, questioned, 387, 1460, 1464, 1752, 1822. when to decide peremptorily, 397, 1809. to put questions to witnesses, 962. questions to, 1564, 1579. to preserve order, 1747, 1765. to explain grounds of opinion, 1753. when to vote, 1806, 1882. to direct proceedings on a division, 1801. questions framed by, formerly, 2130. of house of commons, election of, 219. to be approved by sovereign, 219, 222, 224. prayer of, to sovereign, 225. salary of, 444. and in U. S., difference between, 237, 286. prayer of, see APPENDIX, VII. always a member, 285, 302. functions of, 288, 290, 302. term of office of, 296. none pro tern., 313. cannot present petitions, 1132. in U.S., may present petitions, 1133. SPEAKING, personal deportment of members in, 1549. what is understood by, 1583. moving or seconding equivalent to, 1585. rules respecting, 1582. 1059 INDEX. SPEAKING- continued. allowed a second time in special cases, 1608. more than once in committee of the -whole, 2001. must be to the question, 1618. SPEECH, introduction into, of extracts from journals, etc., 1659. matter from extraneous sources, 1661. STATE LEGISLATURES, functions of, 9, 717, 719. STATUTES, provisions of, when directory, 201. peremptory, 201. as a source of parliamentary rules, 788. form of, and mode of passing, 2046. parts of, 2093. See BILLS. STRANGERS, to withdraw before division, 1800. STUDENTS, not residents, 38. SUPPLY, committee of, 2026, 2031. in congress, 2042. SUPPRESS, motions to, 1389. SUPREMACY. See OATI. TAX, payment of, a qualification of a voter, 45, 47, 54. for a voter, 188. petitions against, 1146. originated in house of commons, 2303. TELLERS, 388. appointment of, 1801. duty of, 1803. disagreement of, 1808. misrepresentation by, 1813. TERRITORIAL GOVERNMENTS, 9. TERRITORIES, delegates from, to congress, 253, 281. TRIBUNE, what, and where used, 379. USAGES, as a source of parliamentary rules, 778. VACANCY, how filled, 135, 452, 480. in senates of certain States, 244. 1060 t I I I i I I, I I INDEX. VETO, of executive, 450, 700. bill may be passed notwithstanding, 414, 2381. power, absolute in Great Britain, 2375. qualified in U.S., 2375. requisitions to exercise of, 2377. VICE-PRESIDENT OF THE UNITED STATES, functions of, as president of senate, 289, 298. VOICES, taking sense of house by, 1794. VOTE, only one, to be given at same election, 91. casting, of returning officers, 92, 118. none, in House of Lords, 288, 302. of presiding officer, 298, 301. why so called, 303, 306. when given, 303, 306, 310. how given, 306, 309, 311. given by mistake, 307. reasons assigned for, 307, 311. queried, 97. scrutiny of, 98. when to be changed or corrected, 99, 108, 1813, 1825, 1828. declaration of, 101. several candidates having equal number of, 124. for unqualified persons, 175. when void, 176. illegal reception and rejection of, 198. reconsideration of, 282. cannot take place in committee, 1915, 2000. by proxy, in house of lords, 401, 434, 1818. may be rescinded; 1260. right and duty of members to, 1784, 1846. by member who should have withdrawn on a division, 1812. members properly in house may be compelled to, 1795, 1800, 1803. different, given by voice and on division, 1795. whether member coming in between first and second putting of question is entitled to, 1797, 1814. members of house of lords may protest against, 1820. accidental omission of, 1825. allowance and disallowance of, 1833. * decision reversed by, 1849. member to be heard on motion to disallow, 1848. improperly refused, motion to allow, 1834. disallowed on account of interest of members, 1839. parties named in bill cannot, 1846. members pecuniarily interested in bill cannot, 1846. may, after disclaiming, 1846. cannot be reconsidered in committee, 1915, 2000. VOTERS. See ELECTORS. 1061 .1 INDEX. VOTES, bill passed by miscounting, APPENDIX, VIII. WAGER, on event of election, 188. WARRANT, time of opening poll not specified in, 203. of presiding officer, 290, 316. APPENDIX, VI. WAYS AND MEANS, committee of, 2026, 2035. in congress, 2042. WITNESSES, members exempt from serving as, 598. attendance of, how compelled, 634, 662, 934, 941, 1902. in House of Lords, sworn, 955. Commons, not sworn, 635, 657, 661,955. in U.S., when sworn, 958. expenses of, 660. subornation of, 630. tampering with, 1014. summoning, 658. occasions for, 930. may be required to produce papers, etc., 936. orders with reference to, 937. for attendance of, 938. service of, 945. disobedience of, 946, 951, 1903. before select committee, 939, 942, 994, 1017. election if members, 941. officers, 944. misconduct of, 944, 993, 1009, 1018. absconding of, 947. if in custody, 948, 962. may be imprisoned, 950, 1011. place of attendance of, 953. inability of, to attend, 951,954. how examined, 959, 966, 968, 974, 985, 992. by whom questioned, 962, 974. answers of, to whom given, 964. cross-examination of, 965. deportment towards, and of, 967, 973, 1020. competency of, 970. temporary withdrawal of, 980, 992. objections to questions to, 978, 981, 989. by witness, 982. when excused from answering, 983. minutes of examination of, 987. may correct mistakes, 988, 991. before committee of the whole, 993, 1016. 1062 INDEX. WITNESSES - continued. privileges of, 996. freedom of, from arrest, 997. protection of, against consequences of disclosures, 1001. abuse, etc., 1006. bills to indemnify, 1005. refusal of, to answer or produce papers, 1011. false testimony by, 1012. prevarication of, 1013. implication of others by testimony of, 1024. custody of papers produced by, 1022. WOMEN, not allowed to vote, 24, 30. when " " " 31. not eligible to office, 56. WRITS OF ELECTION, 193, 447, 451,454, 457. See APPENDIX, II. return of, 132, 135. See APPENDIX, V. not in use, ordinarily, in this country, 135. supersedeas of, 456. YEAS AND NAYS, taking question by, 405, 414, 1493, 1615, 1823. APPELNDIX, IX. when may be taken, 1494. can be called for only once on same question, 1496. debate concerning, 1497. cannot be taken in committee of the whole, 2000. I A 1063 i t I p i x