and by whom it is served, it is commonly against him that complaints are instituted,1 or actions brought 2 for executing the orders of the assembly.3 In cases of this kind, the sergeant communicates the fact to the assembly, who thereupon assumes his defence, and orders the expense thereof to be defrayed out of its contingent fund. Vacancies in this office may occur, and be filled, in the manner already mentioned.5 SECTION IV.— CHAPLAIN. 338. It has been the immemorial usage, in both houses of parliament, to commence the sitting of each day with the reading of prayers. In the lords, this service is performed by the youngest bishop present, or, if none are present, by any peer in holy orders In the commons, prayers are read by a chaplain appointed by the speaker, or, as he is called, Mr. Speaker's Chaplain. It appears to have been the practice, at least, after the establishment of protestantism, in the time of Elizabeth, for the clerk of the house to read prayers, from the book of common prayer, and for the speaker also to read a special prayer composed by himself and "fitly conceived" for the time and purpose, every morning during the session. Some of the speaker's prayers, which are preserved in the journals, are composed in a style, which would do credit to any bishop of the time. It is probable, that this practice was discontinued during the civil wars and the commonwealth. The present practice has prevailed for many years. Mr. Speaker's chaplain, besides a pecuniary compensation, usually receives some advancement in the church, for his services in that capacity. Absence from prayers was anciently punished by a small fine, for the use of the poor. At the present day, no fine is payable for non-attendance, but presence in a particular seat at prayers entitles the member to hold the same seat for the day. 6 339. In the legislatures of the United States, it is the general practice for each branch, soon after its organization, to elect a chap 1 J. of H. III. 748, 752, 754; Ann. of Cong. I. 865. 2 J. of H. 15th Cong. 2d Sess. 135. 3 The leading cases, in which the power of a legislative assembly to commit is established, are, in England, that of Burdett v. Abbott, reported in the fourteenth volume of East's Reports, and, in this country, that of Anderson v. Dunn, reported in the sixth vol ume of Wheaton's Reports. In the former case, the action was brought against the speaker, and in the latter, against the sergeant. Sir Francis Burdett, also, brought an action against the sergeant-at-arms. 4 J. of H. 15th Cong. 2d Sess. 135. 5 J. of H. 21st Cong. 1st Sess. 9; J. of H. 22d Cong. 2d Sess. 374. 6 Appendix, VII. lain, who attends at the commencement of each day's sitting, and prays with the members, after the manner of the sect or denomination to which he belongs. The two branches of congress, in pursuance of a joint resolution, previously agreed upon for the purpose, elect each a chaplain of a different sect, who exchange with one another weekly. SECTION V. PRINTER. 340. In modern times, the substitution of printing for reading in legislative assemblies has become so general, that it is usual to appoint some one to the office of printer to the assembly. In the house of commons, this appointment is usually left with the. speaker. With us the choice is generally made by the assembly itself; either by means of an election, in the ordinary way, or by receiving proposals, and giving the appointment to the person, whose terms, on the whole, are the most advantageous. In assemblies, where there is but little printing required, the usage sometimes is, to authorize the presiding officer or the clerk, on each particular occasion, to employ some one for the purpose. In whatever manner, however, a printer may be employed, he is, for the time being, the servant of the assembly; and, as such, responsible for the custody and safe-keeping of all papers and documents intrusted to his care, and bound to secrecy in all cases, where secrecy is enjoined, either expressly or by the nature of the subject. He is also entitled to the protection of the house in the discharge of his duty.1 The printing of congress is of such importance, and of such vast extent, that it is the subject of regulation by law. Each house employs its own printer. 1 The powers and duties of this officer, in the house of commons, have within a few years given rise to the only controversy of much importance, touching parliamentary privilege, which has occurred in modern times. The immediate occasion was the publication, in pursuance of an order of the house of commons, by the Messrs. Hansard, printers of the house, of certain reports of the inspectors of prisons, in one of which, a book published by a bookseller named Stockdale, was described in a manner which he conceived to be libellous. Stockdale brought his action against the printers. The question primarily involved was whether the house of commons could authorize the publication of a libel. The house took the side of their printers, and passed several resolutions, asserting their own privileges, and their exclusive jurisdiction of all questions in which they were involved. But the claim of privilege set up by the defendant was disallowed by the court of King's Bench. See Post, § 433. OF THE PLACE AND MANNER OF SITTING OF A LEGISLATIVE 341. Under this head of the subject, it is proposed to give an explanation of several matters, which are essential to or connected with the orderly proceeding of a legislative assembly, in the transaction of its business, namely; of the place and manner of sitting; of the continuation, and close, of the daily sitting; of the personat deportment of the members during the sitting; of the manner of speaking; of the rule of decision; of the several forms of taking a question to ascertain the sense of the assembly; of the journal or record of the proceedings; of the printing of bills and other documents; and of the attendance and pay of the members. SECTION I. PLACE AND MANNER OF SITTING. 342. The rooms, necessary for the holding of a legislative assembly, consist of a principal hall or chamber, of a sufficient size for the ordinary sitting of the members, when occupied with business; a number of smaller rooms adjoining, or in the same building with, the principal hall, for the use of committees; a room adjoining the principal chamber, for the use of the presiding officer; one or more apartments for the accommodation of the recording officers, and the custody of their papers, journals, and records; one or more rooms for the sergeant-at-arms, suitable for the restraint of persons in his custody; and one or more rooms to be used as ante-rooms, for persons in attendance by order of the assembly or otherwise. To these must be added a conference room, for occasional meetings of the two branches. 343. The place where the assembly is to sit, being designated and appointed beforehand by law, and to be changed only by legal authority, no valid meeting can be held, or business transacted, at any other place. The place of meeting is in the possession of the assembly while sitting, and of its appropriate officers when not in session. The assembly itself, as an aggregate body, and the per sons of its members individually, while sitting, are sacred and inviolable, and cannot rightfully be interfered with, in any manner, by any other tribunal or authority whatever.1 This principle is so essential, that when violated, the government itself is attacked; and, if the violation is continued, the government is for the time overturned. The assembly, also, has the absolute control of the place of its sitting, and may exclude therefrom, at its pleasure, all strangers, that is, all persons who are not its members, even though they are members of a coördinate branch, or of some other department of government. It is hardly necessary to remark, that, the assembly may compel the observance of a proper decorum by all persons, whom it allows to be present at its proceedings. On the other hand, the mere place of sitting is no sanctuary; and, when the assembly is not in session, is no more inviolable than any other private or public apartment.2 3 344. In theory, the internal proceedings of all deliberative bodies, legislative as well as others, are supposed to be conducted with closed doors, and in secret; the result only of their deliberations being made known, according to the subject-matter, or the persons interested, either by public proclamation, or by being announced to the parties, who are called in for the purpose; and in courts of justice, juries, courts-martial, committees, and, indeed, in almost every variety of deliberative bodies, not legislative in their character, the practice conforms to the theory. In regard to legislative assemblies, though supposed, with certain exceptions, which will be mentioned, presently, to sit with closed doors, they are all now practically and to a greater or less extent open to the public. 1 An instance of the invasion of a legislative assembly by another coördinate branch of the government occurred in the reign of Charles I. and was among the last acts of that infatuated and unfortunate sovereign. I allude to his going into the house of commons, on the 4th of January, 1641, while the house was sitting, for the purpose of seizing certain members, whom he had accused of high treason. This incident is probably familiar, as it is described in the books of history. Those who wish to see it more fully set forth, will find an account of it in Rushworth's Historical Collections, vol. IV. p. 474. This event also constitutes a sort of epoch in parliamentary law. Mr. Hatsell, in his collection of Precedents, omits every thing that occurred in parliament from this time, until the restoration, in 1660; the precedents of proceedings during this period not being in his opinion of such a character as to entitle them to any weight or authority. 2 An attempt was made in 1815, by a member of the house of commons to make the chamber of the house a sort of sanctuary. Lord Cochrane, (then in the naval service, afterwards Lord Dundonald,) a member, having been indicted and convicted for a conspiracy, was committed by the court of King's Bench to prison. He escaped therefrom, and took refuge in the house, at a time when the house was not sitting, although at a time when, by law, the sitting might have commenced. He was pursued by the marshal, and arrested in the house, and taken back to prison. The matter was investigated by a committee, who came to the conclusion, that the privileges of the house had not been violated. 3 Pemberton, 25. 345. In both branches of parliament, the proceedings were conducted with closed doors from the earliest times, down to less than a hundred years ago; though it is not improbable, that a few persons were always occasionally allowed to be present, by the connivance of the officers or members, till the number became quite considerable, and a sort of system was established, upon which admission to these bodies could be obtained by a limited number of persons; but this always was and now is a matter of mere connivance, and not of right; and the proceedings of these bodies are supposed, even at the present day, to be conducted in private; accommodation is indeed provided in each for the reporters for the newspapers; for a limited number of the members of the other house; and for a very few other persons occasionally present; but, all this is a mere matter of indulgence; and the house may notwithstanding be cleared of all but members, at any moment, without debate or delay, and upon the demand of any single member. The exclusion of strangers from these bodies, though their presence is connived at by the officers and members, can at any time be enforced without a previous order of the house, all that is necessary, for this purpose being that some member should take notice of their presence, and should communicate that fact to the house; in the house of commons, the speaker is then obliged to order them to withdraw without putting a question. Strangers are present in either house only by sufferance, and upon no other ground has their presence been recognized.1 346. In this country, with the exceptions alluded to, all the legislative assemblies are, in theory, and until a comparatively recent period, were in fact, closed against the public; all the provincial legislatures probably sat with closed doors; the proceedings of the old confederation congress were always in secret; and it was not until the fourth congress which commenced in the year 1795,2 that, after a long struggle, the doors of the United States senate, when sitting in a legislative or judicial capacity,3 were thrown open to the public. The public have since been admitted to the debates in all our legislative bodies; in some by the permission of the assemblies themselves; in others by constitutional right. In the first, unless the theoretical character of those bodies should be considered as changed by long usage and the nature of our government and institutions, it would seem, that it could not be compe 1 May, 207. 2 J. of S. II. 33, 34. 3 The doors are still closed when the senate is sitting in its executive capacity. |