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TO THE HONORABLE
ROBERT CHARLES WINTHROP, LL. D.,
WHO WAS, FOR MANY YEARS,
SPEAKER OF THE HOUSE OF REPRESENTATIVES OF MASSACHUSETTS ;
AND WHO, AFTERWARDS, AS SPEAKER OF THE HOUSE OF REPRESENTATIVES OF THE
UNITED STATES, FOR THE THIRTIETII CONGRESS,
PERFORMED THE DUTIES OF THAT OFFICE WITH SINGULAR ABILITY;
IS S HUMBLY DEDICATED
AS A TESTIMONIAL OF RESPECT AND AFFECTION
A U T H O R.
The intelligent reader of history needs scarcely to be informed,
In compiling the following work, I have endeavored to present
The reader of the following pages, who is acquainted with the
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 ignorata, 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 of 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.
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 quent 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, Hackwill, 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