Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 105th Congress-Jefferson's Manual of Parliamentary Practice

[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 105th Congress]
[105th Congress]
[House Document 104-272]
[Jeffersons Manual of ParliamentaryPractice]
[Pages 117-313]
[From the U.S. Government Publishing Office, www.gpo.gov]

[[Page 117]]

JEFFERSON'S MANUAL OF PARLIAMENTARY PRACTICE \^{1\

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sec. i.--importance of adhering to rules.

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Sec. 283. Rules as related to the privileges of
minorities.

Mr. Onslow, the ablest among the Speakers of the House of
Commons, used to say, ``It was a maxim he had often heard when he was a
young man, from old

\^{1\ Jefferson's Manual was prepared by Thomas Jefferson for his
own guidance as President of the Senate in the years of his Vice
Presidency, from 1797 to 1801. In 1837 the House, by rule which still
exists, provided that the provisions of the Manual should ``govern the
House in all cases to which they are applicable and in which they are
not inconsistent with the standing rules and orders of the House and
joint rules of the Senate and House of Representatives.'' Rule XLII;
Sec. 938, infra. In 1880 the committee which revised the Rules of the
House declared in their report that the Manual, ``compiled as it was for
the use of the Senate exclusively and made up almost wholly of
collations of English parliamentary practice and decisions, it was never
especially valuable as an authority in the House of Representatives,
even in its early history, and for many years past has been rarely
quoted in the House'' (V, 6757). This statement, although sanctioned by
high authority, is extreme, for in certain parts of the Manual are to be
found the foundations of some of the most important portions of the
House's practice.

Sec. 284. The Manual as a statement of
parliamentary law.

The Manual is regarded by English parliamentarians as the best
statement of what the law of Parliament was at the time Jefferson wrote
it. Jefferson himself says, in the preface of the work:

``I could not doubt the necessity of quoting the sources of my
information, among which Mr. Hatsel's most valuable book is preeminent;
but as he has only treated some general heads, I have been obliged to
recur to other authorities in support of a number of common rules of
practice, to which his plan did not descend. Sometimes each authority
cited supports the whole passage. Sometimes it rests on all taken
together. Sometimes the authority goes only to a part of the text, the
residue being in-

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and experienced Members, that nothing tended more to
throw power into the hands of administration, and those who acted with
the majority of the House of Commons, than a neglect of, or departure
from, the rules of proceeding; that these forms, as instituted by our
ancestors, operated as a check and control on the actions of the
majority, and that they were, in many instances, a shelter and
protection to the minority, against the attempts of power.'' So far the
maxim is certainly true, and is founded in good sense, that as it is
always in the power of the majority, by their numbers, to stop any
improper measures proposed on the part of their opponents, the only
weapons by which the minority can defend themselves against similar
attempts from those in power are the forms and rules of proceeding

ferred from known rules and principles. For some of the
most familiar forms no written authority is or can be quoted, no writer
having supposed it necessary to repeat what all were presumed to know.
The statement of these must rest on their notoriety.
Continued

``I am aware that authorities can often be produced in opposition to
the rules which I lay down as parliamentary. An attention to dates will
generally remove their weight. The proceedings of Parliament in ancient
times, and for a long while, were crude, multiform, and embarrassing.
They have been, however, constantly advancing toward uniformity and
accuracy, and have now attained a degree of aptitude to their object
beyond which little is to be desired or expected.

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which have been adopted as they were found necessary, from time to time,
and are become the law of the House, by a strict adherence to which the
weaker party can only be protected from those irregularities and abuses
which these forms were intended to check, and which the wantonness of
power is but too often apt to suggest to large and successful
majorities, 2 Hats., 171, 172.

``Yet I am far from the presumption of believing that I may not have
mistaken the parliamentary practice in some cases, and especially in
those minor forms, which, being practiced daily, are supposed known to
everybody, and therefore have not been committed to writing. Our
resources in this quarter of the globe for obtaining information on that
part of the subject are not perfect. But 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 for the use of the Senate, the effects of
which may be accuracy in business, economy of time, order, uniformity,
and impartiality.''

_________________

Sec. 285. Necessity of rules of action.

And whether these
forms be in all cases the most rational or not is really not of so great
importance. It is much more material that there should be a rule to go
by than what that rule is; that there may be a uniformity of proceeding
in business not subject to the caprice of the Speaker or captiousness of
the members. It is very material that order, de-

Jefferson also says in his preface, as to the source most desirable at
that time from which to draw principles of procedure:

Sec. 286. Relations of the parliamentary
law to the early practice of Congress.

``But to what system of rules is he to recur, as
supplementary to those of the Senate? To this there can be but one
answer: To the system of regulations adopted for the government of some
one of the parliamentary bodies within these States, or of that which
has served as a prototype to most of them. This last is the model which
we have all studied, while we are little acquainted with the
modifications of it in our several States. It is deposited, too, in
publications possessed by many, and open to all. Its rules are probably
as wisely constructed for governing the debates of a deliberative body,
and obtaining its true sense, as any which can become known to us; and
the acquiescence of the Senate, hitherto, under the references to them,
has given them the sanction of the approbation.''

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cency, and regularity be
preserved in a dignified public body. 2 Hats., 149.

* * * * *

[House Rules Manual -- House Document No. 104-272]
[From the U.S. Government Printing Office Online Database]
[Pages 120-139]
[DOCID:hrmanual-13]

Those portions of the Manual which refer exclusively to Senate
procedure or which refer to English practice wholly inapplicable to the
House of Representatives have been omitted. Paragraphs from the
Constitution of the United States have also been omitted, as the
Constitution is printed in full in this volume.
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sec. iii.--privilege.

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one instance, indeed, it has been relaxed by the 10 G. 3, c. 50,
which permits judiciary proceedings to go on against them. That these
privileges must be continually progressive, seems to result from their
rejecting all definition of them; the doctrine being, that ``their
dignity and independence are preserved by keeping their privileges
indefinite; and that `the maxims upon which they proceed, together
with the method of proceeding, rest entirely in their own breast,
and are not defined and ascertained by any particular stated laws.' ''
1 Blackst., 163, 164.

Sec. 287. Privileges of members of
Parliament.

The privileges of members of Parliament, from small and
obscure beginnings, have been advancing for centuries with a firm and
never yielding pace. Claims seem to have been brought forward from time
to time, and repeated, till some example of their admission enabled them
to build law on that example. We can only, therefore, state the points
of progression at which they now are. It is now acknowledged, 1st. That
they are at all times exempted from question elsewhere, for anything
said in their own House; that during the time of privilege, 2d. Neither
a member himself, his, order H. of C. 1663, July 16, wife, nor his
servants (familiares sui), for any matter of their own, may be, Elsynge,
217; 1 Hats., 21; 1 Grey's Deb., 133, arrested on mesne process, in any
civil suit: 3d. Nor be detained under execution, though levied before
time of privilege: 4th. Nor impleaded, cited, or subpoenaed in any
court: 5th. Nor summoned as a witness or juror: 6th. Nor may their lands
or goods be distrained: 7th. Nor their persons assaulted, or characters
traduced. And the period of time covered by privilege, before and after
the session, with the practice of short prorogations under the
connivance of the Crown, amounts in fact to a perpetual protection
against the course of justice. In

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seems to stand at present on the following ground: 1. The act of arrest
is void, ab initio. 2 Stra., 989. 2. The member arrested may be discharged on
motion, 1 Bl., 166; 2 Stra., 990; or by habeas corpus under the Federal
or State authority, as the case may be; or by a writ of privilege out of
the chancery, 2 Stra., 989, in those States which have adopted that part
of the laws of England. Orders of the House of Commons, 1550, February
20. 3. The arrest being unlawful, is a trespass for which the officer
and others concerned are liable to action or indictment in the ordinary
courts of justice, as in other cases of unauthorized arrest. 4. The
court before which the process is returnable is bound to act as in other
cases of unauthorized proceeding, and liable, also, as in other similar
cases, to have their proceedings stayed or corrected by the superior
courts.

Sec. 288. Privilege of Members of Congress under the
Constitution.

It was probably from this view of the encroaching character
of privilege that the framers of our Constitution, in their care to
provide that the laws shall bind equally on all, and especially that
those who make them shall not exempt themselves from their operation,
have only privileged ``Senators and Representatives'' themselves from
the single act of ``arrest in all cases except treason, felony, and
breach of the peace, during their attendance at the session of their
respective Houses, and in going to and returning from the same, and from
being questioned in any other place for any speech or debate in either
House.'' Const. U.S. Art I, Sec. 6. Under the general authority ``to
make all laws necessary and proper for carrying into execution the
powers given them,'' Const. U.S., Art. II, Sec. 8, they may provide by
law the details which may be necessary for giving full effect to the
enjoyment of this privilege. No such law being as yet made, it

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road very nicely, nor forfeit his protection for a little deviation from that
which is most direct; some necessity perhaps constraining him to it. 2
Stra., 986, 987.

Sec. 289. Privilege as to going and returning.

The time
necessary for going to, and returning from, Congress, not being defined,
it will, of course, be judged of in every particular case by those who
will have to decide the case. While privilege was understood in England
to extend, as it does here, only to exemption from arrest, eundo,
morando, et redeundo, the House of Commons themselves decided that ``a
convenient time was to be understood.'' (1580,) 1 Hats., 99, 100. Nor is
the law so strict in point of time as to require the party to set out
immediately on his return, but allows him time to settle his private
affairs, and to prepare for his journey; and does not even scan his

Sec. 290. Privilege of Members as related to rights of
courts to summon witnesses and jurors.

This privilege from arrest,
privileges, of course, against all process the disobedience to which is
punishable by an attachment of the person; as a subpoena ad
respondendum, or testificandum, or a summons on a jury; and with reason,
because a Member has superior duties to perform in another place. When a
Representative is withdrawn from his seat by summons, the 40,000 people
whom he represents lose their voice in debate and vote, as they do on
his voluntary absence; when a Senator is withdrawn by summons, his State
loses half its voice in debate and vote, as it does on his voluntary
absence. The enormous disparity of evil admits no comparison.

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to produce in court, in obedience to a summons, an original paper from
the files, but has given the court facilities for making copies (III,
2664, 2666; Apr. 15, 1948, p. 4552; Apr. 29, 1948, pp. 5161, 5162; May 6,
1948, p. 5432; Jan. 18, 1950, p. 565; Feb. 8, 1950, p. 1695; Feb. 13, 1950,
p. 1765; Sept. 22, 1950, p. 15636; Apr. 6, 1951, p. 3403; Apr. 12, 1951,
p. 3800; Oct. 20, 1951, p. 13777; Jan. 22, 1953, p. 498; May 25, 1953,
p. 5523; Jan. 28, 1954, pp. 964-65; Feb. 25, 1954, pp. 2281-82; July 1,
1955, pp. 9818-19; Apr. 12, 1956, p. 6258; Apr. 24, 1958, p. 7262; Apr. 29,
1958, p. 7636; Sept. 16, 1974, p. 31123; Jan. 19, 1977, pp. 1728-29), but on
one occasion, where the circumstances warranted such action, the Clerk
was permitted to respond and take with him certified copies of certain
documents described in the subpoena (H. Res. 601, Oct. 29, 1969, p.
32005); and on the rare occasions where the House has permitted the
production of an original paper from its files, it has made explicit
provision for its return (H. Res. 1022, 1023, Jan. 16, 1968, pp. 80-81;
H. Res. 1429, July 27, 1976, pp. 24089-90). No officer or employee,
except by authority of the House, should produce before any court a
paper from the files of the House, nor furnish a copy of any paper
except by authority of the House or a statute (III, 2663; VI, 587; Apr.
15, 1948, p. 4552; Apr. 30, 1948, pp. 5161, 5162; May 6, 1948, p. 5432;
Jan. 18, 1950, p. 565; Feb. 8, 1950, p. 1695; Feb. 13, 1950, p. 1765;
Sept. 22, 1950, p. 15636; Apr. 6, 1951, p. 3403; Apr. 12, 1951, p. 3800;
Oct. 20, 1951, p. 13777; Mar. 10, 1954, pp. 3046-47; Feb. 7, 1955, p.
1215; May 7, 1956, p. 7588; Dec. 18, 1974, p. 40925). In the 98th
Congress, the House adopted a resolution denying compliance with a
subpoena issued by a Federal Court for the production of records in the
possession of the Clerk (documents of a select committee from the prior
Congress), where the Speaker and joint leadership had instructed the
Clerk in the previous Congress not to produce such records and where the
Court refused to stay the subpoena or to allow the select committee to
intervene to protect its interest; the resolution directed the Counsel
to the Clerk to assert the rights and privileges of the House and to
take all steps necessary to protect the rights of the House (Apr. 28,
1983, p. 10417). On appeal from a subsequent district court judgment
finding the Clerk in contempt, the Court of Appeals reversed on the
ground that a subpoena to depose a nonparty witness under the Federal
Rules of Civil Procedure may only be served in the district (of
Maryland) where it was issued. In re Guthrie, 733 F.2d 634 (4th Cir.
1984). Where an official of both Houses of Congress is subpoenaed in his
official capacity, the concurrence of both Houses by concurrent
resolution is required to permit compliance (H. Con. Res. 342, July 16,
1975, pp. 23144-46).

Sec. 291a. Attitude of the House as to demands of the
courts.

The House has decided that the summons of a court to Members to
attend and testify constituted a breach of privilege, and directed them
to disregard the mandate (III, 2661); but in other cases wherein Members
informed the House that they had been summoned before the District Court
of the United States for the District of Columbia or other courts, the
House authorized them to respond (III, 2662; Feb. 23, 1948, p. 1557;
Mar. 5, 1948, p. 2224; Apr. 8, 1948, p. 4264; Apr. 12, 1948, p. 4347;
Apr. 14, 1948, p. 4461; Apr. 15, 1948, p. 4529; Apr. 28, 1948, p. 5009;
May 6, 1948, pp. 5433, 5451; Feb. 2, 1950, p. 1399; Apr. 4, 1951, p.
3320; Apr. 9, 1951, p. 3525; Apr. 12, 1951, pp. 3751, 3752; Apr. 13,
1951, p. 3915; June 4, 1951, p. 6084; June 22, 1951, p. 7001; Sept. 18,
1951, p. 11571; Sept. 27, 1951, p. 12292; Mar. 5, 1953, p. 1658; Mar.
18, 1953, p. 2085; Mar. 11, 1954, p. 3102; July 19, 1954, p. 10904; Apr.
9, 1956, p. 5970; Apr. 10, 1956, p. 5991). The House, however, has
declined to make a general rule permitting Members to waive their
privilege, preferring that the Member in each case should apply for
permission (III, 2660). Also in maintenance of its privilege the House
has refused to permit the Clerk or other officers

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thereof through the Clerk of the House
(see, e.g., H. Res. 12, Jan. 3, 1973, pp. 30-31). In the 95th Congress,
the House for the first time by resolution permitted this same type of
general response whether or not the House is in session or in
adjournment if a court has found that specific documents in possession
of the House are material and relevant to judicial proceedings. The
House reserved to itself the right to revoke this general permission in
any specific case where the House desires to make a different response
(H. Res. 10, Jan. 4, 1977, p. 73; H. Res. 10, Jan. 15, 1979, p. 19). The
permission did not apply to executive session material, such as a
deposition of a witness in executive session of a committee, which could
be released only by a separate resolution passed by the House (H. Res.
296, June 4, 1979, p. 13180). H. Res. 10 of the 96th Congress was
clarified and revised later in that Congress by H. Res. 722 (Sept. 17,
1980, pp. 25777-90) and became the basis for rule L added in the 97th
Congress (H. Res. 5, Jan. 5, 1981, pp. 98-113, see Sec. 946, infra).
A resolution routinely adopted up to the 95th Congress provided that
when the House had recessed or adjourned Members, officers, and
employees were authorized to appear in response to subpoenas duces
tecum, but prohibited the production of official papers in response
thereto; the resolution also provided that when a court found that
official papers, other than executive session material, were relevant,
the court could obtain copies

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tions authorizing the chairman of a
subcommittee to intervene in any judicial proceeding concerning
subpoenas duces tecum issued by that committee, authorizing the
appointment of a special counsel to carry out the purposes of such a
resolution, and providing for the payment from the contingent fund (now
referred to as ``applicable accounts of the House described in clause
1(h)(1) of rule X'') of expenses to employ such special counsel (H. Res.
1420, Aug. 26, 1976, pp. 1858-59; H. Res. 334, May 9, 1977, pp. 13949-
52), authorizing the Sergeant at Arms to employ a special counsel to
represent him in a pending action in federal court in which he was named
as a defendant, and providing for the payment from the contingent fund
of expenses to employ such counsel (H. Res. 1497, Sept. 2, 1976, p.
28937), and authorizing the Chairman of the Committee on House
Administration to intervene as a party in a pending civil action in the
U.S. Court of Claims, to defend on behalf of the House the
constitutional authority to make laws necessary and proper for executing
its constitutional powers, authorizing the employment of special counsel
for such purpose, and providing for the payment from the contingent fund
of expenses to employ such counsel (H. Res. 884, Nov. 2, 1977, p.
36661). The House has authorized the Speaker to take any steps he
considered necessary, including intervention as a party or by submission
of briefs amicus curiae, in order to protect the interests of the House
before the court (H. Res. 49, Jan. 29, 1981, p. 1304). The House has
also on occasion adopted privileged resolutions, reported from the
Committee on Rules, authorizing standing or select committees to make
applications to courts in connection with their investigations (H. Res.
252, Feb. 9, 1977, pp. 3966-75; H. Res. 760, Sept. 28, 1977, pp. 31329-
36; H. Res. 67, Mar. 4, 1981, pp. 3529-33).

Sec. 291b. Judicial appearances on behalf of
House.

While the statutes provide that the Department of Justice may
represent any officer of the House or Senate in the event of judicial
proceedings against such officer in relation to the performance of
official duties (see 2 U.S.C. 118), and that the Department of Justice
shall generally represent the interests of the United States in Court
(28 U.S.C. 517), the House has on occasion authorized special
appearances on its own behalf by special counsel when the prerogatives
or powers of the House have been questioned in the courts. The House has
adopted privileged resolu-

Sec. 292. Attitude of one House as to demands of the
other for attendance or papers.

When either House desires the attendance of
a Member of the other to give evidence it is the practice to ask the
House of which he is a Member that the Member have leave to attend, and
the use of a subpoena is of doubtful propriety (III, 1794). But in one
case, at least, the Senate did not consider that its privilege forbade
the House to summon one of its officers as a witness (III, 1798). But
when the Secretary of the Senate was subpoenaed to appear before a
committee of the House with certain papers from the files of the Senate,
the Senate discussed the question of privilege before empowering him to
attend (III, 2665). For discussion of the means by which one House may
prefer a complaint against a Member or officer of the other, see
Sec. 373, infra.

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Sec. 293. Power of the House to punish for contempts.

So far
there will probably be no difference of opinion as to the privileges of
the two Houses of Congress; but in the following cases it is otherwise.
In December, 1795, the House of Representatives committed two persons of
the name of Randall and Whitney for attempting to corrupt the integrity
of certain Members, which they considered as a contempt and breach of
the privileges of the House; and the facts being proved, Whitney was
detained in confinement a fortnight and Randall three weeks, and was
reprimanded by the Speaker. In March, 1796, the House of Representatives
voted a challenge given to a Member of their House to be a breach of the
privileges of the House; but satisfactory apologies and acknowledgments
being made, no further proceeding was had. * * *

Sec. 294. Decision of the court in Anderson's
case.

The cases of Randall and Whitney (II, 1599-1603) were followed in
1818 by the case of John Anderson, a citizen, who for attempted bribery
of a Member was arrested, tried, and censured by the House (II, 1606).
Anderson appealed to the courts and this procedure finally resulted in a
discussion by the Supreme Court of the United States of the right of the
House to punish for contempts, and a decision that the House by
implication has the power to punish, since ``public functionaries must
be left at liberty to exercise the powers which the people have
intrusted to them,'' and ``the interests and dignity of those who
created them require the exertion of the powers indispensable to the
attainment of the ends of their creation. Nor is a casual conflict with
the rights of particular individuals any reason to be urged against the
exercise of such powers'' (II, 1607; Anderson v. Dunn, 6 Wheaton 204).
In 1828 an assault on the President's secretary in the Capitol gave rise
to a question of privilege which involved a discussion of the inherent
power of the House to punish for contempt (II, 1615). Again in 1832,
when the House censured Samuel Houston, a citizen, for assault on a
Member for words spoken in debate (II, 1616), there was a discussion by
the House of the doctrine of inherent and implied power as opposed to
the other doctrine that the House might exercise no authority not
expressly conferred on it by the Constitution or the laws of the land
(II, 1619). In 1865 the House arrested and censured a citizen for
attempted intimidation and assault on a member (II, 1625); in 1866, a
citizen who had assaulted the clerk of a committee of the House in the
Capitol was arrested by order of the House, but as there was not time to
punish in the few remaining days of the session, the Sergeant-at-Arms
was directed to turn the prisoner over to the civil authorities of the
District of Columbia (II, 1629); and in 1870 one Woods, who had
assaulted a Member on his way to the House, was arrested on warrant of
the Speaker, arraigned at the bar, and imprisoned for a term extending
beyond the adjournment of the session, although not beyond the term of
the existing House (II, 1626-1628).

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exists as one necessary to enable either House
of Congress to exercise successfully their function of legislation. This
latter proposition is one that we do not propose to decide in the
present case, because we are able to decide it without passing upon the
existence or nonexistence of such a power in aid of the legislative
function'' (103 U.S. 189; II, 1611). In 1894, in the case of Chapman,
another contumacious witness, the Supreme Court affirmed the undoubted
right of either House of Congress to punish for contempt in cases to
which its power properly extends under the expressed terms of the
Constitution (II, 1614; In Re Chapman, 166 U.S. 661). The nature of the
punishment which the House may inflict was discussed by the Court in
Anderson's case (II, 1607; Anderson v. Dunn, 6 Wheaton 204).

Sec. 295. Views of the court in Kilbourn's case.

In 1876 the
arrest and imprisonment by the House of Hallet Kilbourn, a contumacious
witness, resulted in a decision by the Supreme Court of the United
States that the House had no general power to punish for contempt, as in
a case wherein it was proposing to coerce a witness in an inquiry not
within the constitutional authority of the House. The Court also
discussed the doctrine of inherent power to punish, saying in
conclusion, ``We are of opinion that the right of the Houses of
Representatives to punish the citizen for a contempt of its authority or
a breach of its privileges can derive no support from the precedents and
practices of the two Houses of the English Parliament, nor from the
adjudged cases in which the English courts have upheld these practices.
Nor, taking what has fallen from the English judges, and especially the
later cases on which we have just commented, is much aid given to the
doctrine, that this power

Sec. 296. Decision of the court in Marshall v. Gordon.

In the case of Marshall v. Gordon, 243 U.S. 521, the Court stated:

Appellant while United States Attorney for the Southern District of New
York conducted a grand jury investigation which led to the indictment of
a Member of the House of Representatives. Acting on charges of
misfeasance and nonfeasance made by the Member against appellant in part
before the indictment and renewed with additions afterward, the House by
resolution directed its Judiciary Committee to make inquiry and report
concerning appellant's liability to impeachment. Such inquiry being in
progress through a subcommittee, appellant addressed to the
subcommittee's chairman, and gave to the press, a letter, charging the
subcommittee with an endeavor to probe into and frustrate the action of
the grand jury, and couched in terms calculated to arouse the
indignation of the members of that committee and those of the House
generally. Thereafter, appellant was arrested in New York by the
Sergeant at Arms pursuant to a resolution of the House whereby the
letter was characterized as defamatory and insulting and as tending to
bring that body into public contempt and ridicule, and whereby appellant
in writing and publishing such letter was adjudged to be in contempt of
the House in violating its privileges, honor, and dignity. He applied
for habeas corpus.

The court held that the proceedings concerning which the alleged
contempt was committed were not impeachment proceedings; that, whether
they were impeachment proceedings or not, the House was without power by
its own action, as distinct from such action as might be taken under
criminal laws, to arrest or punish for such acts as were committed by
appellant.

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distinction between legislative, executive, and judicial
power, and repugnant to limitations which the Constitution fixes
expressly; hence there is no warrant whatever for implying such a dual
power in aid of other powers expressly granted to Congress. The House
has implied power to deal directly with contempt so far as is necessary
to preserve and exercise the legislative authority expressly granted.
Being, however, a power of self-preservation, a means and not an end,
the power does not extend to infliction of punishment, as such; it is a
power to prevent acts which in and of themselves inherently prevent or
obstruct the discharge of legislative duty and to compel the doing of
those things which are essential to the performance of the legislative
functions. As pointed out in Anderson v. Dunn, 6 Wheat., 204 this
implied power in its exercise is limited to imprisonment during the
session of the body affected by the contempt.
No express power to punish for contempt was granted to the House of
Representatives save the power to deal with contempts committed by its
own Members (art. I, sec. 5). The possession by Congress of the
commingled legislative and judicial authority to punish for contempts
which was exerted by the House of Commons is at variance with the view
and tendency existing in this country when the Constitution was adopted,
as evidenced by the manner in which the subject was treated in many
State constitutions, beginning at or about that time and continuing
thereafter. Such commingling of powers would be destructive of the basic
constitutional

The authority does not cease when the act complained of has been
committed, but includes the right to determine in the use of legitimate
and fair discretion how far from the nature and character of the act
there is necessity for repression to prevent immediate recurrence, i.e.,
the continued existence of the interference or obstruction to the
exercise of legislative power. In such case, unless there be manifest an
absolute disregard of discretion, and a mere exertion of arbitrary power
coming within the reach of constitutional limitations, the exercise of
the authority is not subject to judicial interference. The power is the
same in quantity and quality whether exerted on behalf of the
impeachment powers or of the others to which it is ancillary. The
legislative power to provide by criminal laws for the prosecution and
punishment of wrongful acts is not here involved.

The Senate may invoke its civil contempt statute (2 U.S.C. 288d) to
direct the Senate legal counsel to bring an action in Federal court to
compel a witness to comply with the subpoena of a committee of the
Senate. The House, in contrast, may either certify such a witness to the
appropriate United States Attorney for possible indictment under the
criminal contempt statute (2 U.S.C. 192) or exercise its inherent power
to commit for contempt by detaining the recalcitrant witness in the
custody of the Sergeant-at-Arms.

(See also McGrain v. Daugherty, 273 U.S. 135; Sinclair v. United
States, 279 U.S. 263; Jurney v. MacCracken, 294 U.S. 125; Groppi v.
Leslie, 404 U.S. 496.)

[[Page 130]]

the law of nature, and every body of men, possesses the right of
self-defense; that all public functionaries are essentially invested
with the powers of self-preservation; that they have an inherent
right to do all acts necessary to keep themselves in a condition to
discharge the trusts confided to them; that whenever authorities are
given, the means of carrying them into execution are given by necessary
implication; that thus we see the British Parliament exercise the right of
punishing contempts; all the State Legislatures exercise the same power,
and every court does the same; that, if we have it not, we sit at the
mercy of every intruder who may enter our doors or gallery, and, by noise
and tumult, render proceeding in business impracticable; that if our
tranquillity is to be perpetually disturbed by newspaper defamation, it
will not be possible to exercise our functions with the requisite coolness
and deliberation; and that we must therefore have a power to punish these
disturbers of our peace and proceedings. * * *

Sec. 297. Jefferson's statement of arguments for
inherent power to punish for contempt.

* * * The editor of the Aurora
having, in his paper of February 19, 1800, inserted some paragraphs
defamatory of the Senate, and failed in his appearance, he was ordered
to be committed. In debating the legality of this order, it was
insisted, in support of it, that every man, by

[[Page 131]]

Government by the same State laws adopted in each
State, by a law of Congress; that none of these bodies, therefore,
derive those powers from natural or necessary right, but from express
law; that Congress have no such natural or necessary power, nor any
powers but such as are given them by the Constitution; that that has
given them, directly, exemption from personal arrest, exemption from
question elsewhere for what is said in their House, and power over their
own members and proceedings; for these no further law is necessary, the
Constitution being the law; that, moreover, by that article of the
Constitution which authorizes them ``to make all laws necessary and
proper for carrying into execution the powers vested by the Constitution
in them,'' they may provide by law for an undisturbed exercise of their
functions, e.g., for the punishment of contempts, of affrays or tumult
in their presence, &c.; but, till the law be made, it does not exist;
and does not exist, from their own neglect; that, in the meantime,
however, they are not unprotected, the ordinary magistrates and courts
of law being open and competent to punish all unjustifiable disturbances
or defamations, and even their own sergeant, who may appoint deputies ad
libitum to aid him 3 Grey, 59, 147, 255, is equal to small
disturbances; that in requiring a previous law, the Constitution had
regard to the inviolability of the citizen, as well as of the Member;
as, should one House, in the regular form of a bill, aim at too broad
privileges, it may be checked by the other, and both by the Presi-

[[Page 132]]

dent; and also as, the law being promulgated, the citizen will know how to
avoid offense. But if one branch may assume its own privileges without
control, if it may do it on the spur of the occasion, conceal the law in
its own breast, and, after the fact committed, make its sentence both
the law and the judgment on that fact; if the offense is to be kept
undefined and to be declared only ex re nata, and according to the
passions of the moment, and there be no limitation either in the manner
or measure of the punishment, the condition of the citizen will be
perilous indeed. * * *

Sec. 298. Statement of arguments against the inherent
power to punish for contempts.

* * * To this it was answered, that the
Parliament and courts of England have cognizance of contempts by the
express provisions of their law; that the State Legislatures have equal
authority because their powers are plenary; they represent their
constituents completely, and possess all their powers, except such as
their constitutions have expressly denied them; that the courts of the
several States have the same powers by the laws of their States, and
those of the Federal

Sec. 299. Jefferson's suggestion that a law might define
procedure in cases of contempt.

* * * Which of these doctrines is to
prevail, time will decide. Where there is no fixed law, the judgment on
any particular case is the law of that single case only, and dies with
it. When a new and even a similar case arises, the judgment which is to
make and at the same time apply to the law, is open to question and
consideration, as are all new laws. Perhaps Congress in the mean time,
in their care for the safety of the citizen, as well as that for their
own protection, may declare by law what is necessary and proper to
enable them to carry into execution the powers vested in them, and
thereby hang up a rule for the inspection of all, which may direct the
conduct of the citizen, and at the same time test the judgments they
shall themselves pronounce in their own case.

[[Page 133]]

(II, 1598). Congress has, however, prescribed that a witness
summoned to appear before a committee of either House who does not
respond or who refuses to answer a question pertinent to the subject of
the inquiry shall be deemed guilty of a misdemeanor (2 U.S.C. 192). A
resolution directing the Speaker to certify to the U.S. Attorney the
refusal of a witness to respond to a subpoena issued by a House
committee may be offered from the floor as privileged, since the
privileges of the House are involved, and a committee report to
accompany the resolution may therefore be presented to the House without
regard to the 3-day availability requirement for other reports (see
clause 2(l)(6) of rule XI; July 13, 1971, pp. 24720-23). A resolution
with two resolve clauses separately directing the certification of the
contemptuous conduct of two individuals is subject to a demand for a
division of the question as to each individual (contempt proceedings
against Ralph and Joseph Bernstein, Feb. 27, 1986, p. 3061). In the 97th
Congress, the Committee on Energy and Commerce filed a report (H. Rept.
97-898) on proceedings against the Secretary of the Interior James G.
Watt for withholding subpoenaed documents and for failure to answer
questions relating to reciprocity under the Mineral Lands Leasing Act.
Also in the 97th Congress, the House adopted a resolution directing the
Speaker to certify to the United States Attorney the failure of an
official of the executive branch (Anne M. Gorsuch, Administrator,
Environmental Protection Agency) to submit executive branch documents to
a House subcommittee pursuant to a subcommittee subpoena; this was the
first occasion on which the House cited an executive official for
contempt of Congress (H. Res. 632, Dec. 16, 1982, p. 31754). In the
following Congress, the 98th, the House adopted (as a question of
privilege) a resolution reported from the same committee certifying to
the United States Attorney the fact that an agreement has been entered
into between the committee and the Executive Branch for access by the
committee to the documents which Anne Gorsuch had failed to submit and
which were the subject of the contempt citation (where the contempt had
not yet been prosecuted) (Aug. 3, 1983, p. 22692). In other cases where
subsequent compliance had been accomplished in the same Congress, the
House has adopted privileged resolutions certifying the facts to the
United States Attorney to the end that contempt proceedings be
discontinued (see Deschler's Precedents, vol. 4, ch. 15, sec. 21). In
the 98th Congress, the House adopted a privileged resolution directing
the Speaker to certify to the United States Attorney the refusal of a
former official of the executive branch to obey a subpoena to testify
before a subcommittee (H. Res. 200, May 18, 1983, p. 12720).-
In 1837 the House declined to proceed with a bill ``defining the
offense of a contempt of this House, and to provide for the punishment
thereof''

[[Page 134]]

vote until he is sworn, Memor., 107, 108. D'Ewes, 642, col. 2; 643, col. 1.
Pet. Miscel. Parl., 119. Lex. Parl., c. 23.2 Hats., 22, 62.

Sec. 300. Status of Memberelect as to privilege,
oath, committee service, etc.

Privilege from arrest takes place by force of the
election; and before a return be made a Member elected may be named of a
committee, and is to every extent a Member except that he cannot

The Constitution of the United States limits the broad Parliamentary
privilege to the time of attendance on sessions of Congress, and of
going to and returning therefrom. In a case wherein a Member was
imprisoned during a recess of Congress, he remained in confinement until
the House, on assembling, liberated him (III, 2676).

It is recognized in the practice of the House that a Member may be
named to a committee before he is sworn, and in some cases Members have
not taken the oath until long afterwards (IV, 4483), although in the
modern practice Members-elect have been elected to standing committees
effective only when sworn (H. Res. 26, 27; Jan. 6, 1983, p. 132). In one
case, wherein a Member did not appear to take the oath, the Speaker with
the consent of the House appointed another Member to the committee place
(IV, 4484). The status of a Member-elect under the Constitution
undoubtedly differs greatly from the status of a Member-elect under the
law of Parliament. In various inquiries by committees of the House this
question has been examined, with the conclusions that a Member-elect
becomes a Member from the very beginning of the term to which he was
elected (I, 500), that he is as much an officer of the Government before
taking the oath as afterwards (I, 185), and that his status is
distinguished from that of a Member who has qualified (I, 183, 184).
Members-elect may resign or decline before taking the oath (II, 1230-
1233, 1235); they have been excluded (I, 449, 464, 474, 550, 551; VI,
56; Mar. 1, 1967, pp. 4997-5038), and in one case a Member-elect was
expelled (I, 476; II, 1262). The names of Members who have not been
sworn are not entered on the roll from which the yeas and nays are
called for entry on the Journal (V, 6048; VIII, 3122), nor are such
Members-elect permitted to vote or introduce bills.

Sec. 301. Relations of Members and others to
privilege.

Every man must, at his peril, take notice who are members of
either House returned of record. Lex. Parl., 23; 4 Inst., 24.

On Complaint of a breach of privilege, the party may either be
summoned, or sent for in custody of the sergeant. 1 Grey, 88, 95.

[[Page 135]]

not in effect waive the privilege of the House. 3 Grey, 140, 222.

The privilege of a Member is the privilege of the House. If the Member
waive it without leave, it is a ground for punishing him, but can-

Although the privilege of Members of the House of Representatives is
limited by the Constitution, these provisions of the Parliamentary law
are applicable, and persons who have attempted to bribe Members (II,
1599, 1606), assault them for words spoken in debate (II, 1617, 1625) or
interfere with them while on the way to attend the sessions of the House
(II, 1626), have been arrested by order of the House by the Sergeant-at-
Arms, ``Wherever to be found.'' The House has declined to make a general
rule to permit Members to waive their privilege in certain cases,
preferring to give or refuse permission in each individual case (III,
2660-2662).

In United States v. Helstoski, 42 U.S. 477 (1979), the Supreme Court
discussed the ability of either an individual Member or the entire
Congress to waive the protection of the Speech or Debate Clause. The
Court found first, that the Member's conduct in testifying before a
grand jury and voluntarily producing documentary evidence of legislative
acts protected by the Clause did not waive its protection. Assuming,
without deciding, that a Member could waive the Clause's protection
against being prosecuted for a legislative act, the Court said that such
a waiver could only be found after an explicit and unequivocal
renunciation of its immunity, which was absent in this case. Second,
passage of the official bribery statute, 18 U.S.C. 201, did not amount
to an institutional waiver of the Speech or Debate Clause for individual
Members. Again assuming without deciding whether Congress could
constitutionally waive the Clause for individual Members, such a waiver
could be shown only by an explicit and unequivocal expression of
legislative intent, and there was no evidence of that in the legislative
history of the statute.

[[Page 136]]

Sec. 302. Parliamentary law as to questioning a Member in
another place for speech or debate.

For any speech or debate in either
House, they shall not be questioned in any other place. Const. U.S., I,
6; S. P. protest of the Commons to James I, 1621; 2 Rapin, No. 54, pp.
211, 212. But this is restrained to things done in the House in a
parliamentary course. 1 Rush, 663. For he is not to have privilege
contra morem parliamentarium, to exceed the bounds and limits of his
place and duty. Com. p.

Sec. 303. Relation of the courts to parliamentary
privilege.

If an offense be committed by a member in the House, of which
the House has cognizance, it is an infringement of their right for any
person or court to take notice of it till the House has punished the
offender or referred him to a due course. Lex. Parl., 63.

Sec. 304. Breach of privilege to refuse to put a question which
is in order.

Privilege is in the power of the House, and is a restraint to the
proceeding of inferior courts, but not of the House itself. 2 Nalson,
450; 2 Grey, 399. For whatever is spoken in the House is subject to the
censure of the House; and offenses of this kind have been severely
punished by calling the person to the bar to make submission, committing
him to the tower, expelling the House, &c. Scob., 72; L. Parl., c. 22.
It is a breach of order for the Speaker to refuse to
put a question which is in order. 1 Hats., 175-6; 5 Grey, 133.

Where the Clerk, presiding during organization of the House, declined
to put a question, a Member put the question from the floor (I, 67).

[[Page 137]]

under pretenses of treason, &c., to take any man from his service in the
House, and so, as many, one after another, as would make the House what
he pleaseth. Dec'l of the Com. on the King's declaring Sir John Hotham a
traitor. 4 Rushw., 586. So, when a member stood indicted for felony, it
was adjudged that he ought to remain of the House till conviction; for
it may be any man's case, who is guiltless, to be accused and indicted
of felony, or the like crime. 23 El., 1580; D'Ewes, 283, col. 1; Lex.
Parl., 133.

Sec. 305. Parliamentary law of privilege as related to
treason, felony, etc.

And even in cases of treason, felony, and breach of
the peace, to which privilege does not extend as to substance, yet in
Parliament a member is privileged as to the mode of proceeding. The case
is first to be laid before the House, that it may judge of the fact and
of the ground of the accusation, and how far forth the manner of the
trial may concern their privilege; otherwise it would be in the power of
other branches of the government, and even of every private man,

Where Members of the House of Representatives have been arrested by
the State authorities the cases have not been laid first before the
House; but when the House has learned of the proceedings, it has
investigated to ascertain if the crime charged was actually within the
exceptions of the Constitution (III, 2673), and in one case where it
found a Member imprisoned for an offense not within the exceptions it
released him by the hands of its own officer (III, 2676).

Sec. 306. Practice as to Members indicted or
convicted.

The House has not usually taken action in the infrequent
instances where Members have been indicted for felony, and in one or two
instances Members under indictment or pending appeal on conviction have
been appointed to committees (IV, 4479). The House has, however,
adopted a resolution expressing the sense of the House that Members
convicted of certain felonies should refrain from participation in
committee business and from voting in the House until the presumption of
innocence is reinstated or until re-elected to the House (see H. Res.
128, Nov. 14, 1973, p. 36944), and that principle has been incorporated
in the Code of Official Conduct (clause 10 of rule XLIII). A Senator
after indictment was omitted from committees at his own request (IV,
4479), and a Member who had been convicted in one case did not appear in
the House during the Congress (IV, 4484, footnote). A Senator in one
case withdrew from the Senate pending his trial (II, 1278), and on
conviction resigned (II, 1282). In this case the Senate, after the
conviction, took steps looking to action although an application for
rehearing on appeal was pending (II, 1282).

[[Page 138]]

to affect the person of a member, it is the practice immediately to
acquaint the House, that they may know the reasons for such a
proceeding, and take such steps as they think proper. 2 Hats., 259. Of
which see many examples. Ib., 256, 257, 258. But the communication is
subsequent to the arrest. 1 Blackst., 167.

Sec. 307. Parliamentary law as to arrest of a
Member.

When it is found necessary for the public service to put a Member
under arrest, or when, on any public inquiry, matter comes out which may
lead

Sec. 308. A breach of privilege for one House to encroach
or interfere as to the other.

It is highly expedient, says Hatsel, for
the due preservation of the privileges of the separate branches of the
legislature, that neither should encroach on the other, or interfere in
any matter depending before them, so as to preclude, or even influence,
that freedom of debate which is essential to a free council. They are,
therefore, not to take notice of any bills or other matters depending,
or of votes that have been given, or of speeches which have been held,
by the members of either of the other branches of the legislature, until
the same have been communicated to them in the usual parliamentary
manner. 2 Hats., 252; 4 Inst., 15; Seld. Jud., 53.

[[Page 139]]

opinion of the King on any bill or proceeding depending in
either House of Parliament, with a view to influence the votes of the
members, 2 Hats., 251, 6.

* * * * *

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[Page 139]
[DOCID:hrmanual-14]

Sec. 309. Relations of the Sovereign to the Parliament
and its Members.

Thus the King's taking notice of the bill for suppressing
soldiers, depending before the House; his proposing a provisional clause
for a bill before it was presented to him by the two Houses; his
expressing displeasure against some persons for matters moved in
Parliament during the debate and preparation of a bill, were breaches of
privilege, 2 Nalson, 743; and in 1783, December 17, it was declared a
breach of fundamental privileges, &c., to report any opinion or
pretended

* * * * *
sec. vi.--quorum.

Sec. 310. Necessity of a quorum during business, including
debate.

In general the chair is not to be taken till a quorum for
business is present; unless, after due waiting, such a quorum be
despaired of, when the chair may be taken and the House adjourned. And
whenever, during business, it is observed that a quorum is not present,
any member may call for the House to be counted, and being found
deficient, business is suspended. 2 Hats., 125, 126.

[House Rules Manual -- House Document No. 104-272]
[From the U.S. Government Printing Office Online Database]
[Pages 139-140]
[DOCID:hrmanual-15]

In the House of Representatives the Speaker takes the Chair at the
hour to which the House stood adjourned and there is no requirement that
the House proceed immediately to establish a quorum, although the
Speaker has the authority under clause 6 of rule XV to recognize for a
call of the House at any time. The question of a quorum is not
considered unless properly raised (IV, 2733; VI, 624), and it is not in
order for the Speaker to recognize for a point of no quorum unless he
has put the pending question or proposition to a vote. While it was
formerly the rule that a quorum was necessary for debate as well as
business (IV, 2935-2949), under the procedure put in effect in the 95th
Congress such is not the case. In the 94th Congress, it was established
by rule that certain proceedings in the House did not require a quorum
(clause 6 of rule XV).

sec. vii.--call of the house.

[[Page 140]]

be fully called over. Then the absentees are called a second time,
and if still absent, excuses are to be heard. Ord. House of Commons, 92.

Sec. 311. Parliamentary rules for call of the House.

On the
call of the House, each person rises up as he is called, and answereth;
the absentees are then only noted, but no excuse to be made till the
House

They rise that their persons may be recognized; the voice, in such a
crowd, being an insufficient verification of their presence. But in so
small a body as the Senate of the United States, the trouble of rising
cannot be necessary.

Orders for calls on different days may subsist at the same time. 2
Hats., 72.

[House Rules Manual -- House Document No. 104-272]
[From the U.S. Government Printing Office Online Database]
[Pages 140-142]
[DOCID:hrmanual-16]

Rule XV of the House of Representatives provides for a procedure on
call of the House. Members of the House do not rise on answering.
* * * * *

* * * * *
sec. ix.--speaker.

Sec. 312. Election of Speaker.

When but one person is
proposed, and no objection made, it has not been usual in Parliament to
put any question to the House; but without a question the members
proposing him conduct him to the chair. But if there be objection, or
another proposed, a question is put by the Clerk. 2 Hats., 158. As are
also questions of adjournment. 6 Gray, 406. Where the House debated and
exchanged messages and answers with the King for a week without a
Speaker, till they were prorogued. They have done it de die in diem for
fourteen days. 1 Chand., 331, 335.

[[Page 141]]

For a discussion of the election of the Speaker, see Sec. 27, supra.

Sec. 313. Election of President pro tempore of the
Senate.

In the Senate, a President pro tempore, in the absence of the
Vice-President, is proposed and chosen by ballot. His office is
understood to be determined on the Vice-President's appearing and taking
the chair, or at the meeting of the Senate after the first recess.

In the later practice the President pro tempore has usually been
chosen by resolution. In 1876 the Senate determined that the tenure of
office of a President pro tempore elected at one session does not expire
at the meeting of Congress after the first recess, the Vice-President
not having appeared to take the chair; that the death of the Vice-
President does not have the effect to vacate the office of President pro
tempore; and that the President pro tempore holds office at the pleasure
of the Senate (II, 1417).

Sec. 314. Parliamentary law as to choice of Speaker pro
tempore.

Where the Speaker has been ill, other Speakers pro tempore have
been appointed. Instances of this are 1 H., 4. Sir John Cheyney, and Sir
William Sturton, and in 15 H., 6. Sir John Tyrrel, in 1656, January 27;
1658, March 9; 1659, January 13.

Sir Job Charlton ill, Seymour chosen,

1673, February 18. Not merely pro tem. 1

Seymour being ill, Sir Robert Sawyer Chand., 169, 276, 277.

chosen, 1678, April 15.<3-ln }>

Sawyer being ill, Seymour chosen.

Thorpe in execution, a new Speaker chosen, 31 H. VI, 3 Grey, 11; and
March 14, 1694, Sir John Trevor chosen. There have been no later
instances. 2 Hats., 161; 4 Inst., 8; L. Parl., 263.

[[Page 142]]

of June 1, 1789 (2 U.S.C. 25), the Clerk recognized for nominations for
Speaker, at the convening of a new Congress, as being of higher
constitutional privilege than a resolution to postpone the election of a
Speaker and instead provide for the election of a Speaker pro tempore
pending the disposition of certain ethics charges against the nominee of
the majority party (Jan. 7, 1997, p. ----).

The House of Representatives, by clause 7 of rule I, has provided for
appointment and election of Speakers pro tempore. Relying on the Act

Sec. 315. Removal of the Speaker.

A Speaker may be removed
at the will of the House, and a Speaker pro tempore appointed, 2 Grey,
186; 5 Grey, 134.

[House Rules Manual -- House Document No. 104-272]
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[Pages 142-143]
[DOCID:hrmanual-17]

The House of Representatives has never removed a Speaker; but it had
on several occasions removed or suspended other officers, as Clerk and
Doorkeeper (I, 287-290, 292; II, 1417), who are officers classed by the
Constitution in the phrase ``the House of Representatives shall choose
their Speaker and other officers.'' A resolution for the removal of an
officer is presented as a matter of privilege (I, 284-286; VI, 35), and
a resolution declaring the office of Speaker vacant presents a question
of constitutional privilege (VI, 35).

* * * * *
sec. x.--address.

Sec. 316. Addresses to the President.

A joint address of
both Houses of Parliament is read by the Speaker of the House of Lords.
It may be attended by both Houses in a body, or by a Committee from each
House, or by the two Speakers only. An address of the House of Commons
only may be presented by the Whole House, or by the Speaker, 9 Grey,
473; 1 Chandler, 298, 301; or by such particular members as are of the
privy council. 2 Hats., 278.

[[Page 143]]

From 1801 to 1913 all messages were sent in writing (V, 6629), but
President Wilson resumed the custom of making addresses in person on
April 8, 1913, and, with the exception of President Hoover (VIII, 3333),
the custom has been followed generally by subsequent Presidents.

[House Rules Manual -- House Document No. 104-272]
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[Pages 143-146]
[DOCID:hrmanual-18]

In the first years of Congress the President annually delivered an
address to the two Houses in joint session, and the House of
Representatives then prepared an address, which the Speaker, attended by
the House, carried to the President. A joint rule of 1789 also provided
for the presentation of joint addresses of the two Houses to the
President (V, 6630). In 1876 the joint rules of the House were
abrogated, including the joint rule providing for presentation of the
joint addresses of the two Houses to the President (V, 6782-6787). In
1801 President Jefferson transmitted a message ``in writing'' and
discontinued the practice of making addresses in person.

sec. xi.--committees.

Sec. 317. Appointment of standing committees; and
designation and duties of chairmen thereof.

Standing committees, as of
Privileges and Elections, &c., are usually appointed at the first
meeting, to continue through the session. The person first named is
generally permitted to act as chairman. But this is a matter of
courtesy; every committee having a right to elect their own chairman,
who presides over them, puts questions, and reports their proceedings to
the House. 4 inst., 11, 12; Scob., 9; 1 Grey, 122.

[[Page 144]]

Prior to the 62d Congress, standing as well as select committees and
their chairmen were appointed by the Speaker, but under the present form
of rule X, adopted in 1911, continued as a part of the Legislative
Reorganization Act of 1946, and revised under the Committee Reform
Amendments of 1974 (H. Res. 988, 93d Cong., Oct. 8, 1974, p. 34470),
standing committees and their respective chairmen are elected by the
House (IV. 4448; VIII, 2178). Owing to their number and size, committees
are not usually elected immediately, but resolutions providing for such
elections are presented by the majority and minority parties pursuant to
clause 6 of rule X as soon as they are able to perfect the lists. A
committee may order its report to be made by the chairman, or by some
other member (IV, 4669), even by a member of the minority party (IV,
4672, 4673), or by a delegate, July 1, 1958 (Burns of Hawaii) p. 12871;
and the chairman sometimes submits a report in which he has not
concurred (IV, 4670). Clause 2(l)(1)(A) of rule XI requires that a
report which has been approved by the committee must be filed with the
House within seven calendar days after a written request from a majority
of the committee is submitted to the committee clerk.

Sec. 318. Parliamentary law as to debate in standing and
select committees.

At these committees the members are to speak standing,
and not sitting; though there is reason to conjecture it was formerly
otherwise. D'Ewes, 630, col. 1; 4 Parl. Hist., 440; 2 Hats., 77.

Sec. 319. Secrecy of committee procedure.

Their proceedings
are not to be published, as they are of no force till confirmed by the
House. Rushw., part 3, vol. 2, 74; 3 Grey, 401; Scob., 39.* * *

In the House of Representatives it is entirely within rule and usage
for a committee to conduct its proceedings in secret (IV, 4558-4564; see
also clause 2(g) of rule XI), and the House itself may not abrogate the
secrecy of a committee's proceedings except by suspending the rule (IV,
4565). The House has no information concerning the proceedings of a
committee not officially reported by the committee (VII, 1015) and it is
not in order in debate to refer to executive session proceedings of a
committee which have not formally been reported to the House (V, 5080-
5083; VIII, 2269, 2485, 2493; June 24, 1958, pp. 12120, 12122; Apr. 5,
1967, pp. 8411-12). A Member was, however, permitted to refer to the
unreported executive session proceedings of a subcommittee to justify
his point of order that a resolution providing for a select committee to
inquire into action of the subcommittee was not privileged (June 30,
1958, pp. 12690-91). In one case the House authorized the clerk of a
committee to disclose by deposition its proceedings (III, 2604). Where a
committee takes testimony it is sometimes very desirable that the
proceedings be secret (III, 1694), as in the investigation in the Bank
of the United States in 1834, when the committee determined that its
proceedings should be confidential, not to be attended by any person not
invited or required (III, 1732). It is for the committee, in its
discretion, to determine whether the proceedings of the committee shall
be open or not (clause 2(g) of rule XI). Clause 2(k) of rule XI
establishes the procedure for closing a hearing because of defamatory,
degrading, or incriminating testimony. Clause 4 of rule XLVIII
establishes special rules governing the closing of hearings of the
Permanent Select Committee on Intelligence.

[[Page 145]]

<> * * * Nor
can they receive a petition but through the House. 9 Grey, 412.
Under clauses 2(a)(1) and 2(g)(1) and (2) of rule XI, all hearings and
business meetings conducted by standing committees shall be open to the
public, except when a committee, in open session, by rollcall vote, with
a majority present, determines to close the meeting or hearing for that
day.

Sec. 321. Parliamentary law of procedure when a committee
inquiry involves a Member.

When a committee is charged with an inquiry, if
a Member prove to be involved, they can not proceed against him but must
make a special report to the House; whereupon the Member is heard in his
place, or at the bar, or a special authority is given to the committee
to inquire concerning him. 9 Grey, 523.

[[Page 146]]

Sec. 322. Practice of House when a committee inquiry
involves a Member.

While the authority of this principle has not been
questioned by the House, there have in special instances been deviations
from it. Thus, in 1832, when a Member had been slain in a duel, and the
fact was notorious that all the principals and seconds were Members of
the House, the committee, charged only with investigating the causes and
whether or not there had been a breach of privilege, reported with their
findings recommendations for expulsion and censure of the Members found
to be implicated. There was criticism of this method of procedure as
deviating from the rule of Jefferson's Manual, but the House did not
recommit the report (II, 1644). In 1857, when a committee charged with
inquiring into accusations against Members not named found certain
Members implicated, they gave them copies of the testimony and
opportunities to explain to the committee, under oath or otherwise, as
they individually might prefer (III, 1845), but reported recommendations
for expulsion without first seeking the order of the House (II, 1275;
III, 1844). In 1859 and 1892 a similar procedure occurred (III, 1831,
2637). But the House, in a case wherein an inquiry had incidentally
involved a Member, evidently considered the parliamentary law as
applicable, since it admitted as of privilege and agreed to a resolution
directing the committee to report the charges (III, 1843). And in cases
wherein testimony taken before a joint committee incidentally impeached
the official characters of a Member and a Senator, the facts in each
case were reported to the House interested (III, 1854). A select
committee, appointed to report upon the right of a Member-elect to be
sworn (H. Res. 1, 90th Cong., pp. 14-27, Jan. 10, 1967), invited him to
appear, to testify, and permitted him to be accompanied by counsel (see
H. Rept. 90-27).

Sec. 323. Inquiries involving Members of other
House.

And where one House, by its committee, has found a Member of the
other implicated, the testimony has been transmitted (II, 1276; III,
1850, 1852, 1853). Where such testimony was taken in open session of the
committee, it was not thought necessary that it be under seal when sent
to the other House (III, 1851).

Sec. 324. Duty of chairman of a committee when the House
sits.

So soon as the House sits, and a committee is notified of it, the
chairman is in duty bound to rise instantly, and the members to attend
the service of the House. 2 Nals., 319.

For the current practice of the House, see the annotation following
clause 2(i) of rule XI (Sec. 710, infra).

Sec. 325. Action of joint committees.

It appears that on
joint committees of the Lords and Commons each committee acted
integrally in the following instances: 7 Grey, 261, 278, 285, 338; 1
Chandler, 357, 462. In the following instances it does not appear
whether they did or not: 6 Grey, 129; 7 Grey, 213, 229, 321.

[House Rules Manual -- House Document No. 104-272]
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[Pages 146-155]
[DOCID:hrmanual-19]

It is the practice in Congress that joint committees shall vote per
capita, and not as representatives of the two Houses (IV, 4425),
although the membership from the House of Representatives is usually,
but not always (IV 4410), larger than that from the Senate (III, 1946;
IV, 4426-4431). But ordinary committees of conference appointed to
settle differences between the two Houses are not considered joint
committees, and the managers of the two Houses vote separately (V,
6336), each House having one vote. A quorum of a joint committee seems
to have been considered to be a majority of the whole number rather than
a majority of the membership of each House (IV, 4424). The first named
of the Senate members acted as chairman in one notable instance (IV,
4424), and in another the joint committee elected its chairman (IV,
4447).

sec. xii.--committee of the whole.

[[Page 147]]

principles are digested in the form of resolutions, which are
debated and amended till they get into a shape which meets the
approbation of a majority. These being reported and confirmed by the
House are then referred to one or more select committees, according as
the subject divides itself into one or more bills. Scob., 36, 44.
Propositions for any charge on the people are especially to be first
made in a Committee of the Whole. 3 Hats., 127. The sense of the whole
is better taken in committee, because in all committees everyone speaks
as often as he pleases. Scob., 49. * * *

Sec. 326. Parliamentary usage as to Committee of the
Whole.

The speech, messages, and other matters of great concernment are
usually referred to a Committee of the Whole House (6 Grey, 311), where
general

This provision is largely obsolete, the House of Representatives
having by its rules and practice provided specifically for procedure in
Committee of the Whole, and having also by its rules for the order of
business left no privileged status for motions to go into Committee of
the Whole on matters not already referred to that committee. The
Committee of the Whole no longer originates resolutions or bills, but
receives such as have been formulated by standing or select committees
and referred to it; and when it reports, the House usually acts at once
on the report without reference to select or other committees (IV,
4705). The practice of referring annual messages of the President to
Committee of the Whole, to be there considered and reported with
recommendations for the reference of various portions to the proper
standing or select committees (V, 6621, 6622), was discontinued in the
64th Congress (VIII, 3350). The current practice is to refer the annual
message to the Committee of the Whole House on the state of the Union
and order it printed (Jan. 14, 1969, p. 651). Executive communications
submitted to implement the proposals contained in the State of the Union
Message are referred by the Speaker to the various committees having
jurisdiction over the subject matter therein.

[[Page 148]]

Sec. 327. Selection of Chairman of Committee of the
Whole.

* * * They generally acquiesce in the chairman named by the Speaker;
but, as well as all other committees, have a right to elect one, some
member, by consent, putting the question, Scob., 36; 3 Grey, 301. * * *

The House of Representatives (by clause 1 of rule XXIII) gives the
authority to appoint the Chairman of the Committee of the Whole to the
Speaker (IV, 4704).

Sec. 328. Form of going into Committee of the
Whole.

* * * The form of going from the House into committee, is for the
Speaker, on motion, to put the question that the House do now resolve
itself into a Committee of the Whole to take into consideration such a
matter, naming it. If determined in the affirmative, he leaves the chair
and takes a seat elsewhere, as any other Member; and the person
appointed chairman seats himself at the Clerk's table. Scob., 36. * * *

This is the form in the House of Representatives, except that the
Chairman of the Committee of the Whole seats himself in the Speaker's
chair. In the 97th Congress, clause 1(b) was added to rule XXIII to
authorize the Speaker, when no other business is pending, to declare the
House resolved into Committee of the Whole to consider a measure at any
time after the House has adopted a special order providing for
consideration of such measure, unless the resolution specifies otherwise
(H. Res. 5, Jan. 3, 1983, p. 34).

Sec. 329. Quorum in Committee of the Whole.

* * * Their
quorum is the same as that of the House; and if a defect happens, the
chairman, on a motion and question, rises, the Speaker resumes the chair
and the chairman can make no other report than to inform the House of
the cause of their dissolution. * * *

[[Page 149]]

Until 1890 a quorum of the Committees of the Whole was the same as the
quorum of the House; but in 1890 the rule (clause 2 of rule XXIII) fixed
it at one hundred (IV, 2966). Clause 2 of rule XXIII and clauses 2 and 5
of rule XV provide the procedures that are followed in Committees of the
Whole in case of failure of a quorum.

Sec. 330. Rising of committee for reception of
messages.

* * * If a message is announced during a committee, the Speaker
takes the chair and receives it, because the committee can not. 2 Hats.,
125, 126.

In the House of Representatives, the committee rises informally to
receive a message, or to enable the Speaker to sign and lay before the
House an enrolled bill, at the direction of the Chairman without a
formal motion from the floor (IV, 4786, footnote; Jan. 28, 1980, p. ----
; Feb. 8, 1995, p. ----); but at this rising the House may not have the
message read or transact other business except by unanimous consent (IV,
4787-4791).

Sec. 331. Quarrels in Committee of the Whole, and duty of
the Speaker in relation thereto.

In a Committee of the Whole, the tellers
on a division differing as to numbers, great heats and confusion arose,
and danger of a decision by the sword. The Speaker took the chair, the
mace was forcibly laid on the table; whereupon the Members retiring to
their places, the Speaker told the House ``he has taken the chair
without an order to bring the House into order.'' Some excepted against
it; but it was generally approved as the only expedient to suppress the
disorder. And every Member was required, standing up in his place, to
engage that he would proceed no further in consequence of what had
happened in the grand committee, which was done. 3 Grey, 128.

[[Page 150]]

In the House of Representatives the Speaker has on several occasions
taken the chair ``without an order to bring the House into order'' (II,
1648-1653), but that being accomplished he may yield to the chairman
that the committee may rise in due form (II, 1349). In one instance, a
Member having defied and insulted the chairman, he left the chair, and,
on the chair being taken by the Speaker, reported the facts to the House
(II, 1653). In several cases Members who have quarrelled have made
explanation and reconciled their difficulties (II, 1651), or have been
compelled by the House to apologize ``for violating its privilege and
offending its dignity'' (II, 1648, 1650).

Sec. 332. Effect of breaking up of Committee of the Whole by
disorder.

A Committee of the Whole being broken up in disorder, and the
chair resumed by the Speaker without an order, the House was adjourned.
The next day the committee was considered as thereby dissolved, and the
subject again before the House; and it was decided in the House, without
returning into committee. 3 Grey, 130.

This provision is obsolete, since in the practice of the House of
Representatives there are but two committees of the whole, which are in
their nature standing committees, with calendars of business. They are
never dissolved, and bills remain on their calendars until reported in
the regular manner after consideration (IV, 4705). When the Speaker
restores order he usually yields the chair to the chairman, thus
permitting the committee later to rise in due form (II, 1349).

[[Page 151]]

chair, the chairman informs him that the committee have gone through the
business referred to them, and that he is ready to make report when the
House shall think proper to receive it. If the House have time to receive
it, there is usually a cry of ``now, now,'' whereupon he makes the report;
but if it be late, the cry is ``to-morrow, to-morrow,'' or ``Monday,''
etc., or a motion is made to that effect, and a question put that it be
received to-morrow, &c. Scob., 38.

Sec. 333. Motions for previous question and to adjourn not
used in Committee of the Whole.

No previous question can be put in a
committee; nor can this committee adjourn as others may; but if their
business is unfinished, they rise, on a question, the House is resumed,
and the chairman reports that the Committee of the Whole have, according
to order, had under their consideration such a matter, and have made
progress therein; but not having had time to go through the same, have
directed him to ask leave to sit again. Whereupon a question is put on
their having leave, and on the time the House will again resolve itself
into a committee. Scob., 38. But if they have gone through the
matter <> referred to them, a member moves that the committee may
rise, and the chairman report their proceedings to the House; which
being resolved, the chairman rises, the Speaker resumes the

In the practice of the House the previous question and motion to
adjourn are not admitted in Committee of the Whole; but the rules
(clauses 5 and 6 of rule XXIII) provide for closing both the general and
five-minute debate. When the committee rises without concluding a matter
the chairman reports that they ``have come to no resolution thereon'';
but leave to sit again is not asked in the modern practice. The
permission of the House is not asked when the chairman reports a matter
concluded in committee. The report is made and received as a matter of
course, and in thereupon before the House for action. When the House has
vested control of general debate in certain Members, their control may
not be abrogated during general debate by another Member moving to rise,
unless they yield for that purpose (May 25, 1967, p. 14121). A Member
yielded time in general debate may not yield to another for such motion
(Feb. 22, 1950, p. 2178). The motion that the Committee of the Whole
rise is privileged during debate under the five-minute rule, and may be
offered during debate on a pending amendment, except where a Member has
the floor (Aug. 13, 1986, p. 21215; Mar. 22, 1995, p. ----). The motion
to rise may not include restrictions on the amendment process or
limitations on future debate on amendments (June 6, 1990, p. 13234). For
a further discussion of the motion to rise, see Sec. 864, infra.

[[Page 152]]

(IV, 4909). But a committee may not report a recommendation which, if
carried into effect, would change a rule of the House (IV, 4907, 4908)
unless a measure proposing amendments to House rules has initially been
referred to the Committee of the Whole by the House. When an amendment is
reported by the committee it may not be withdrawn, and a question as to
its validity is not considered by the Speaker (IV, 4900). When a committee,
directed by order of the House to consider certain bills, reported also
certain other bills, the Speaker held that so much of the report as related
to the latter bills could be received only by unanimous consent (IV, 4911).
When a report is ruled out as in excess of the committee's power, the
accompanying bill stands recommitted (IV, 4784, 4907). A report from a
Committee of the Whole could not formerly be received in the absence of a
quorum (VI, 666; see clause 6 of rule XV). The Committee of the <> Whole, like any other committee,
may amend a proposition either by an ordinary amendment or by a substitute
amendment (IV, 4899), but these amendments must be reported to the House
for action. Amendments rejected by the committee are not reported (IV,
4877). Ordinarily all amendments must be disposed of before the
committee may report (IV, 4752-4758); but sometimes a special order
requires a report at a specified time, in which case pending amendments
are reported (IV, 3225-3228) or not (IV, 4910) as the terms of the order
may direct. In the 98th Congress, clause 2 of rule XXI was amended to
give precedence to the motion that the Committee rise and report a
general appropriation bill at the conclusion of its reading for
amendment and prior to or between consideration of amendments proposing
certain limitations or retrenchments (H. Res. 5, Jan. 3, 1983, p. 34).
The 104th Congress further amended clause 2 to permit only the Majority
Leader or a designee to offer that motion (sec. 215(a), H. Res. 6, Jan.
4, 1995, p. ----). The 105th Congress elevated the Majority Leader's
preferential motion in clause 2 to take precedence of any motion to
amend at that stage (H. Res. 5, Jan. 7, 1997, p. ----). The practice of
the House, based originally on a rule (IV, 4904), requires amendments to
be reported from the Committee of the Whole in their perfected forms,
and this holds good even in the case of an amendment in the nature of a
substitute, which may have been amended freely (IV, 4900-4903). If a
Committee of the Whole amends a paragraph and subsequently strikes out
the paragraph as amended, the first amendment fails, and is not reported
to the House or voted on (IV, 4898; V, 6169; VIII, 2421, 2426), and when
the Committee of the Whole adopts two amendments that are subsequently
deleted by an amendment striking out and inserting new text, only the
latter amendment is reported to the House (June 20, 1967, pp. 16497-98).
Normally, if the Committee of the Whole perfects a bill by adopting
certain amendments and then adopts an amendment striking out all after
section one of the bill and inserting a new text, only the bill, as
amended by the motion to strike out and insert, is reported to the
House; but when the bill is being considered under a special rule
permitting a separate vote in the

[[Page 153]]

House on any of the amendments adopted
in the Committee of the Whole to the bill or the committee substitute,
all amendments adopted in the Committee are reported to the House
regardless of their consistency (May 26, 1960, pp. 11302-04). Where a
separate vote is demanded in this type of situation in the House only on
an amendment striking out a section of a committee substitute, but not
on perfecting amendments which have been previously adopted in Committee
of the Whole to that section, rejection in the House of the motion to
strike the section results in a vote on the committee substitute in its
original form and not as perfected, since the perfecting amendments have
been displaced in the Committee of the Whole and have not been revived
on a separate vote in the House (Speaker O'Neill, Oct. 13, 1977, pp.
33622-24). But where the Committee of the Whole reports a bill to the
House with an adopted amendment in the nature of a substitute and the
special order in question does not provide for separate House votes on
amendments thereto, a separate vote may not be demanded on an amendment
to such amendment, since only one amendment in its perfected form has
been reported back to the House (Nov. 17, 1983, p. 33463).

Sec. 335. Duties of Speaker and House as to reception of
reports of Committee of the Whole.

The Speaker recognizes only reports
from the Committee of the Whole made by the chairman thereof (V, 6987),
and a matter alleged to have arisen therein but not reported may not be
brought to the attention of the House (VIII, 2429, 2430) even on the
claim that a question of privilege is involved (IV, 4912; V, 6987; VIII,
2430). In one instance, however, the committee reported with a bill a
resolution relating to an alleged breach of privilege (V, 6986). When a
bill is reported the Speaker must assume that it has passed through all
the stages necessary for the report (IV, 4916). When the committee
reported not only what it had done but by whom it had been prevented
from doing other things, the Speaker held that the House might not amend
the report, which stood

[[Page 154]]

tee of the Whole prior to the Speaker's putting the question thereon, and
unanimous consent is not required (May 28, 1987, p. 14030). When demand
is made for separate votes in the House on several amendments adopted in
the Committee of the Whole, the amendments are voted on in the House in
the order in which they appear in the bill (July 24, 1968, pp. 23093-95;
May 28, 1987, p. 14030; June 11, 1997, p. ----), except when amendments
have been considered under a special rule prescribing the order for
their consideration where the bill is considered as read, in which case
they are voted on upon demand in the order in which considered in
Committee of the Whole (Mar. 11, 1993, p. ----; Mar. 25, 1993, p. ----).

Sec. 337. Committee of the Whole amendments in the
House.

All amendments to a bill reported from the Committee of the Whole
stand on an equal footing and must be voted on by the House (IV, 4871)
in the order in which they are reported, although they may be
inconsistent, one with another (IV, 4881, 4882), and are subject to
amendment in the House unless the previous question is ordered (VIII,
2419). Two amendments being reported as distinct were considered
independently, although apparently one was a proviso attaching to the
other (IV, 4905); and an entire and distinct amendment may not be
divided, but must be voted on by the House as a whole (IV, 4883-4892;
VIII, 2426). It is a frequent practice for the House by unanimous
consent, to act at once on all the amendments to a bill reported from
the Committee of the Whole, but it is the right of any Member to demand
a separate vote on any amendment (IV, 4893, 4894; VIII, 2419). Where a
special rule permits en bloc consideration of certain amendments in
Committee of the Whole, those amendments if reported back to the House
may also be considered en bloc for a separate vote in the House on
demand of any Member (Speaker O'Neill, Sept. 7, 1978, p. 28425). A
Member may demand a separate vote in the House on an amendment to a
committee amendment in the nature of a substitute adopted in the
Committee of the Whole where the bill is being considered under a
special rule permitting separate votes in the House on any of the
amendments adopted in the Committee of the Whole to the bill or
committee amendment (Sept. 30, 1971, p. 34337), but where a special rule
``self-executes'' an amendment as a modification of an amendment in the
nature of a substitute to be considered as an original bill, that
modification is not separately voted on upon demand in the House
(Speaker Foley, Feb. 3, 1993, p. ----). A Member may withdraw a demand
for a separate vote in the House on an amendment reported from Commit-

Depending on the will of the House as expressed on the question of
ordering the previous question (IV, 4895; V, 5794; VIII, 2419), when a
bill is reported with amendments, it is in order to submit additional
amendments after disposition of the committee amendments (IV, 4872-
4876). However, in modern practice the opportunity to submit amendments
is normally foreclosed by the ordering of the previous question under a
special rule. The fact that a proposition has been rejected by the
Committee of the Whole does not prevent it from being offered as an
amendment when the subject comes up in the House (IV, 4878-4880; VIII,
2700). A substitute amendment may be offered to a bill reported from
committee, and then the previous question may be ordered on the
substitute, on all other amendments, and on the bill to final passage
(V, 5472). An amendment in the nature of a substitute reported from
committee is treated like any other amendment (V, 5341), and if the
House rejects the substitute the original bill without amendment is
before the House (VIII, 2426).

[[Page 155]]

following disposition of amendments to the text and pending third reading
(May 25, 1993, p. ----).

Sec. 338. Bills from Committee of the Whole in the
House.

Where a series of bills are reported from Committee of the Whole, the
House considers them in the order in which they are reported (IV, 4869,
4870; VIII, 2417). A proposition reported for action has precedence over
an independent resolution on the same subject offered by a Member from
the floor (V, 6986), and where a bill and a resolution relating to an
alleged breach of privilege were reported together the question was put
first on the bill (V, 6986). A bill read in full and considered in
Committee of the Whole (IV, 3409, 3410), or presumed to have been so
read (IV, 4916), is not read in full again in the House when reported
and acted on. The Chairman of the Committee of the Whole which reports a
bill does not become entitled to prior recognition for debate in the
House (II, 1453); but on an adverse report an opponent is recognized to
make a motion for disposition of the bill (IV, 4897; VIII, 2430), or for
debate (VII, 2629). The recommendation of the committee being before the
House, the motion to carry out the recommendation is usually considered
as pending without being offered from the floor (IV, 4896), but when a
bill was reported with a recommendation that it lie on the table, a
question was raised as to whether or not this motion, which prevents
debate, should be considered as pending (IV, 4897). The House considers
an amendment reported from the Committee of the Whole to the preamble of
a Senate joint resolution

Sec. 339. Discharge of the Committee of the Whole.

A motion
to discharge the Committee of the Whole from the consideration of a
matter committed to it is not privileged as against a demand for the
regular order (IV, 4917). When the committee is discharged from
consideration of a bill the House, in lieu of the report of the
chairman, accepts the minutes of the Clerk as evidence of amendments
agreed to (IV, 4922).
<> In other things the rules or proceedings are to be the same
as in the House. Scob., 39.

[House Rules Manual -- House Document No. 104-272]
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[Pages 155-160]
[DOCID:hrmanual-20]

The House of Representatives provides by rule (clause 9 of rule XXIII)
that the rules of proceeding in the House shall apply in Committee of
the Whole so far as they may be applicable.

sec. xiii.--examination of witnesses.

Sec. 341. Common fame as ground for
investigation.

Common fame is a good ground for the House to proceed by
inquiry, and even to accusation. Resolution House of Commons, 1 Car., 1,
1625; Rush, L. Parl., 115; Grey, 16-22, 92; 8 Grey, 21, 23, 27, 45.

<>
Witnesses are not to be produced but where the House has previously
instituted an inquiry, 2 Hats., 102, nor then are orders for their
attendance given blank. 3 Grey, 51.

In the House of Representatives common fame has been held sufficient
to justify procedure for inquiry (III, 2701), as in a case wherein it
was stated on the authority of ``common rumor'' that a Member had been
menaced (III, 2678). The House also has voted to investigate with a view
to impeachment on the basis of common fame, as in the cases of Judges
Chase (III, 2342), Humphreys (III, 2385), and Durell (III, 2506).

[[Page 156]]

testimony may be compelled (IV, 4316). The rules require that subpoenas
issued by order of the House be signed by the Speaker (clause 4 of rule
I) and attested and sealed by the Clerk (clause 3 of rule III). However,
in clause 2(m) of rule XI the House has authorized any committee or
subcommittee to issue a subpoena when authorized by a majority of the
members of the committee or subcommittee voting, a majority being
present. A committee may also delegate the authority to issue subpoenas
to the chairman of a full committee. Authorized subpoenas are signed by
the chairman of the committee or by any other member designated by the
committee. Sometimes the House authorizes issue of subpoenas during a
recess of Congress and empowers the Speaker to sign them (III, 1806),
and in one case the two Houses, by concurrent resolution, empowered the
Vice President and Speaker to sign during a recess (III, 1763). (See
Barry v. U.S. ex. rel. Cunningham, 279 U.S. 597; McGrain v. Daugherty,
273 U.S. 135; Sinclair v. United States, 279 U.S. 263).

In the House of Representatives witnesses are summoned in pursuance
and by virtue of the authority conferred on a committee by the House to
send for persons and papers (III, 1750). Even in cases wherein the rules
give to certain committees the authority to investigate without securing
special permission, authority must be obtained before the production of

Sec. 343. Examination of witnesses in the House and in
committee.

When any person is examined before a committee or at the bar of
the House, any Member wishing to ask the person a question must address
it to the Speaker or chairman, who repeats the question to the person,
or says to him, ``You hear the question--answer it.'' But if the
propriety of the question be objected to, the Speaker directs the
witness, counsel, and parties to withdraw; for no question can be moved
or put or debated while they are there. 2 Hats., 108. Sometimes the
questions are previously settled in writing before the witness enters.
Ib., 106, 107; 8 Grey, 64. The questions asked must be entered in the
journals. 3 Grey, 81. But the testimony given in answer before the House
is never written down; but before a committee, it must be, for the
information of the House, who are not present to hear it. 7 Grey, 52,
334.

[[Page 157]]

standing committees, and Members to administer oaths to witnesses (2
U.S.C. 191; III, 1769). Most inquiries, in the modern practice, are
conducted by select or standing committees, and these in each case
determine how they will conduct examinations (III, 1773, 1775). Clause
2(k) of rule XI, contains provisions governing certain procedures at
investigative hearings by committees (Sec. 712, infra). In one case a
committee permitted a Member of the House not of the committee to
examine a witness (III, 2403). Usually these investigations are reported
stenographically, thus making the questions and answers of record for
report to the House. To sustain a conviction of perjury, a quorum of a
committee must be in attendance when the testimony is given (Christoffel
v. United States, 338 U.S. 84). Certain criminal statutes make it a
felony to give perjurious testimony before a Congressional committee (18
U.S.C. 1621), to intimidate witnesses before committees (18 U.S.C.
1505), or to make false statements in any matter within the jurisdiction
of the executive, legislative, or judicial branch of the Government of
the United States (18 U.S.C. 1001).
The Committee of the Whole of the House of Representatives was charged
with an investigation in 1792, but the procedure was wholly exceptional
(III, 1804), although a statute still empowers the Chairman of the
Committee of the Whole, as well as the Speaker, chairmen of select or

Another provision of the Federal criminal code (18 U.S.C. 6005)
provides for ``use'' immunity for certain witnesses before either House
or committees thereof as follows:

``Sec. 6005. Congressional Proceedings.

``(a) In the case of any individual who has been or may be called to
testify or provide other information at any proceeding before or
ancillary to either House of Congress, or any committee, or any
subcommittee of either House, or any joint committee of the two Houses,
a United States district court shall issue, in accordance with
subsection (b) of this section, upon the request of a duly authorized
representative of the House of Congress or the committee concerned, an
order requiring such individual to give testimony or provide other
information which he refuses to give or provide on the basis of his
privilege against self-incrimination, such order to become effective as
provided in section 6002 of this part.

``(b) Before issuing an order under subsection (a) of this section, a
United States district court shall find that--

``(1) in the case of a proceeding before or ancillary to

either House of Congress, the request for such an order has been

approved by an affirmative vote of a majority of the Members

present of that House;

``(2) in the case of a proceeding before or ancillary to a

committee or a subcommittee of either House of Congress or a

joint committee of both Houses, the request for such an order

has been approved by an affirmative vote of two-thirds of the

members of the full committee; and

``(3) ten days or more prior to the day on which the request

for such an order was made, the Attorney General was served with

notice of an intention to request the order.

[[Page 158]]

section for such period, not longer than twenty days from
the date of the request for such order, as the Attorney General may
specify.''.

``(c) Upon application of the Attorney General, the United States
district court shall defer the issuance of any order under subsection
(a) of this

Sec. 344. Earlier and later practice as to inquiries at
the bar of the House.

The House, in its earlier years, arraigned and tried
at its bar persons, not Members, charged with violation of its
privileges, as in the cases of Randall, Whitney (II, 1599-1603),
Anderson (II, 1606), and Houston (II, 1616); but in the case of Woods,
charged with breach of privilege in 1870 (II, 1626-1628), the respondent
was arraigned before the House, but was heard in his defense by counsel
and witnesses before a standing committee. At the conclusion of that
investigation the respondent was brought to the bar of the House while
the House voted his punishment (II, 1628). The House has also arraigned
at its bar contumacious witnesses before taking steps to punish by its
own action or through the courts (III, 1685). In examinations at its bar
the House has adopted forms of procedure as to questions (II, 1633,
1768), providing that they be asked through the Speaker (II, 1602, 1606)
or by a committee (II, 1617; III, 1668). And the questions to be asked
have been drawn up by a committee, even when put by the Speaker (II,
1633). In the earlier practice the answer of a witness at the bar was
not written down (IV, 2874); but in the later practice the answers
appear in the journal (III, 1668). The person at the bar withdraws while
the House passes on an incidental question (II, 1633; III, 1768). (See
McGrain v. Dougherty, 273 U.S. 135; Barry v. U.S. ex. rel. Cunningham,
279 U.S. 597; Jurney v. MacCracken, 294 U.S. 125).

Sec. 345. Procuring attendance of a witness in custody of
the other House.

If either House have occasion for the presence of a
person in custody of the other, they ask the other their leave that he
may be brought up to them in custody. 3 Hats., 52.

Sec. 346. Members as witnesses.

A Member, in his place,
gives information to the House of what he knows of any matter under
hearing at the bar. Jour. H. of C., Jan. 22, 1744-5.

[[Page 159]]

protested that it was an invasion of his constitutional privilege (III,
1777, 1778; see also H. Rept. 1372, 67th Cong. and Cong. Rec. 5, 1923,
pp. 2415-23). In one instance the chairman of an investigating committee
administered the oath to himself and testified (III, 1821). The House,
in an inquiry preliminary to an impeachment trial, gave leave to its
managers to examine Members, and leave to its Members to attend for the
purpose (III, 2033).

At an examination at the bar of the House in 1795 both the written
information given by Members and their verbal testimony were required to
be under oath (II, 1602). In a case not of actual examination at the
bar, but wherein the House was deliberating on a proposition to order
investigation, it demanded by resolution that certain Members produce
papers and information (III, 1726, 1811). Members often give testimony
before committees of investigation, and in at least one case the Speaker
has thus appeared (III, 1776). But in a case wherein a committee
summoned a Member to testify as to a statement made by him in debate he

Sec. 347. Method of obtaining testimony of a Member of
the other House.

Either House may request, but not command, the attendance of
a Member of the other. They are to make the request by message of the
other House, and to express clearly the purpose of attendance, that no
improper subject of examination may be tendered to him. The House then
gives leave to the Member to attend, if he choose it; waiting first to
know from the Member himself whether he chooses to attend, till which
they do not take the message into consideration. But when the peers are
sitting as a court of criminal judicature, they may order attendance,
unless where it be a case of impeachment by the Commons. There it is to
be a request. 3 Hats., 17; 9 Grey, 306, 406; 10 Grey, 133.

[[Page 160]]

The House of Representatives and the Senate have observed this rule;
but it does not appear that they have always made public ascertainment
of the willingness of the Member to attend (III, 1790, 1791). In one
case the Senate laid aside pending business in order to comply with the
request of the House (III, 1791). In several instances House committees,
after their invitations to Senators to appear and testify had been
disregarded, have issued subpoenas. In such cases the Senators have
either disregarded the subpoenas, refused to obey them, or have appeared
under protest (III, 1792, 1793). In one case, after a Senator had
neglected to respond either to an invitation or a subpoena the House
requested of the Senate his attendance and the Senate disregarded the
request (III, 1794). Where Senators have responded to invitations of
House committees, their testimony has been taken without obtaining
consent of the Senate (III, 1793, 1795, footnote).

Sec. 348. Admission of counsel.

Counsel are to be heard only
on private, not on public, bills and on such points of law only as the
House shall direct. 10 Grey, 61.

In 1804 the House admitted the counsel of certain corporations to
address the House on pending matters of legislation (V, 7298), and in
1806 voted that a claimant might be heard at the bar (V, 7299); but in
1808, after consideration, the House by a large majority declined to
follow again the precedent of 1804 (V, 7300). In early years counsel in
election cases were heard at the bar at the discretion of the House (I,
657, 709, 757, 765); but in 1836, after full discussion, the practice
was abandoned (I, 660), and, with one exception in 1841 (I, 659), has
not been revived, even for the case of a contestant who could not speak
the English language (I, 661). Counsel appear before committees in
election cases, however. Where witnesses and others have been arraigned
at the bar of the House for contempt, the House has usually permitted
counsel (II, 1601, 1616; III, 1667), sometimes under conditions (II,
1604, 1616); but in a few cases has declined the request (II, 1608; III,
1666, footnote). In investigations before committees counsel usually
have been admitted (III, 1741, 1846, 1847), sometimes even to assist a
witness (III, 1772), and clause 2(k)(3) of rule XI now provides that
witnesses at investigative hearings may be accompanied by their own
counsel for the purpose of advising them concerning their constitutional
rights (Sec. 712). In examinations preliminary to impeachment counsel
usually have been admitted (III, 1736, 2470, 2516) unless in cases
wherein such proceedings were ex parte. During its investigation into
charges of impeachment against President Nixon, the Committee on the
Judiciary admitted counsel to the President to be present, to make
presentations and to examine witnesses during investigatory hearings (H.
Rept. 93-1305, Aug. 20, 1974, p. 29219).

[House Rules Manual -- House Document No. 104-272]
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At one time the House required all counsel or agents representing
persons or corporations before committees to be registered with the
Clerk (III, 1771). The Federal Regulation of Lobbying Act (Title III of
the Legislative Reorganization Act of 1946) requires all lobbyists to
register with the Clerk of the House and the Secretary of the Senate (2
U.S.C. 267).

sec. xiv.--arrangement of business.

[[Page 161]]

question decide to take up a particular subject. Hakew., 136.

Sec. 349. Advantages of an order of business.

The Speaker is
not precisely bound to any rules as to what bills or other matter shall
be first taken up; but it is left to his own discretion, unless the
House on a

A settled order of business is, however, necessary for the government
of the presiding person, and to restrain individual Members from calling
up favorite measures, or matters under their special patronage, out of
their just turn. It is useful also for directing the discretion of the
House, when they are moved to take up a particular matter, to the
prejudice of others, having priority of right to their attention in the
general order of business.
* * * * *

In this way we do not waste our time in debating what shall be taken
up. We do one thing at a time; follow up a subject while it is fresh,
and till it is done with; clear the House of business gradatim as it is
brought on, and prevent, to a certain degree, its immense accumulation
toward the close of the session.

Jefferson gave as a part of his comment on the law of Parliament the
order of business in the Senate in his time. Both in the House and
Senate the order of business has been changed to meet the needs of the
times. The order of business now followed in the House is established by
rule XXIV; and this rule, with the rules supplemental thereto, take away
to a very large extent the discretion exercised by the Speaker under the
parliamentary law.

[[Page 162]]

In the House of Representatives before committees are appointed it is
in order to offer a bill or resolution for consideration not previously
considered by a committee (VII, 2103). In the 73d Congress, the House
passed before the adoption of rules and election of committees a bill of
major importance (H.R. 1491, providing relief in the existing national
emergency in banking), following a message from President Roosevelt
recommending its immediate passage (Mar. 9, 1933, pp. 75-84). After
committees are appointed, bills and resolutions not otherwise in order
must be referred (VII, 2104).

Sec. 350. Conditions of the old and the modern
orders of business.

Arrangement, however, can only take hold of matters in
possession of the House. New matter may be moved at any time when no
question is before the House. Such are original motions and reports on
bills. Such are bills from the other House, which are received at all
times, and receive their first reading as soon as the question then
before the House is disposed of; and bills brought in on leave, which
are read first whenever presented. So messages from the other House
respecting amendments to bills are taken up as soon as the House is
clear of a question, unless they require to be printed, for better
consideration. Orders of the day may be called for, even when another
question is before the House.

[House Rules Manual -- House Document No. 104-272]
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[Pages 162-163]
[DOCID:hrmanual-22]

In Jefferson's time the principles of this comment would have applied
to both House and Senate; but in the House the pressure of business has
become so great that the order of business may be interrupted at the
will of the majority only by certain specified matters (see annotations
following rule XXIV). For matters not thus specified, interruption of
the order takes place only by unanimous consent.

* * * * *
sec. xv.--order.

Sec. 351. Precedent in Parliament and the
House.

In Parliament, ``instances make order,'' per Speaker Onslow. 2
Hats., 141. But what is done only by one Parliament, cannot be called
custom of Parliament, by Prynne. 1 Grey, 52.

[[Page 163]]

to prepare an updated compilation of such precedents
every two years (H. Res. 988, 93d Cong., Oct. 8, 1974, p. 34470). The
Speaker feels constrained in his rulings to give precedent its proper
influence (II, 1317), since the advantage of such a course are
undeniable (IV, 4045). But decisions of the Speakers on questions of
order are not like judgments of courts which conclude the rights of
parties, but may be reexamined and reversed (IV, 4637), except on
discretionary matters of recognition (II, 1425). It is rare, however,
that such a reversal occurs.

[House Rules Manual -- House Document No. 104-272]
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[Page 163]
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In the House of Representatives the Clerk is required to note all
questions of order and the decisions thereon and print the record
thereof as an appendix to the Journal (clause 3 of rule III). The
Parliamentarian has the responsibility for compiling and updating the
precedents (secs. 341-342, Legislative Reorganization Act of 1970; 84
Stat. 1140). The Committee Reform Amendments of 1974 gave the Speaker
the responsibility

sec. xvi.--order respecting papers.

Sec. 352. Safekeeping of papers and integrity of
bills.

The Clerk is to let no journals, records, accounts, or papers be
taken from the table or out of his custody. 2 Hats., 193, 194.

Mr. Prynne, having at a Committee of the Whole amended a mistake in a
bill without order or knowledge of the committee, was reprimanded. 1
Chand., 77.

A bill being missing, the House resolved that a protestation should be
made and subscribed by the members ``before Almighty God, and this
honorable House, that neither myself, nor any other to my knowledge,
have taken away, or do at this present conceal a bill entitled,'' &c. 5
Grey, 202.

After a bill is engrossed, it is put into the Speaker's hands, and he
is not to let any one have it to look into. Town, col. 209.

[House Rules Manual -- House Document No. 104-272]
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[Pages 164-183]
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[[Page 164]]

In the House of Representatives an alleged improper alteration of a
bill was presented as a question of privilege and examined by a select
committee. It being ascertained that the alteration was made to correct
a clerical error, the committee reported that it was ``highly censurable
in any Member or officer of the House to make any change, even the most
unimportant, in any bill or resolution which has received the sanction
of this body'' (III, 2598). Engrossed bills do not go into the Speaker's
hands. Enrolled bills go to him for signature.

<>
When the Speaker is seated in his chair, every member is to sit in his
place. Scob., 6; Grey, 403.

sec. xvii.--order in debate.

In the House of Representatives the decorum of Members is regulated by
the various provisions of rule XIV; and this provision of the
parliamentary law is practically obsolete.

Sec. 354. Procedure of the Member in seeking
recognition.

When any Member means to speak, he is to stand up in his
place, uncovered, and to address himself, not to the House, or any
particular Member, but to the Speaker, who calls him by his name, that
the House may take notice who it is that speaks. Scob., 6; D'Ewes, 487,
col. 1; 2 Hats., 77; 4 Grey, 66; 8 Grey, 108. But Members who are
indisposed may be indulged to speak sitting. 2 Hats., 75, 77; 1 Grey,
143.

<> When a Member stands up to
speak, no question is to be put, but he is to be heard unless the House
overrule him. 4 Grey, 390; 5 Grey, 6, 143.

In the House of Representatives the Member, in seeking recognition is
governed by clause 1 of rule XIV, which differs materially from this
provision of the parliamentary law. The Speaker, moreover, calls the
Member, not by name, but as ``the gentleman (or gentlewoman) from ------
,'' naming the State. As long ago as 1832, at least, a Member was not
required to rise from his own seat (V, 4979, footnote).

[[Page 165]]

In the House of Representatives no question is put as to the right of
a Member to the floor, unless he be called to order and dealt with by
the House under clauses 4 and 5 of rule XIV.

Sec. 356. The parliamentary law as to recognition by the
Speaker.

If two or more rise to speak nearly together, the Speaker
determines who was first up, and calls him by name, whereupon he
proceeds, unless he voluntarily sits down and gives way to the other.
But sometimes the House does not acquiesce in the Speaker's decision, in
which case the question is put, ``which Member was first up?'' 2 Hats.,
76; Scob., 7; D'Ewes, 434, col. 1, 2.

In the Senate of the United States the President's decision is without
appeal.

In the House of Representatives recognition by the Chair is governed
by clause 2 of rule XIV and the practice thereunder. There has been no
appeal from a decision by the Speaker on a question of recognition since
1881, on which occasion Speaker Randall stated that the power of
recognition is ``just as absolute in the Chair as the judgment of the
Supreme Court of the United States is absolute as to the interpretation
of the law'' (II, 1425-1428), and in the later practice no appeal is
permitted (VIII, 2429, 2646, 2762).

Sec. 357. Right of the Member to be heard a second
time.

No man may speak more than once on the same bill on the same day;
or even on another day, if the debate be adjourned. But if it be read
more than once in the same day, he may speak once at every reading. Co.,
12, 115; Hakew., 148; Scob., 58; 2 Hats., 75. Even a change of opinion
does not give a right to be heard a second time. Smyth's Comw. L., 2, c.
3; Arcan, Parl., 17.

[[Page 166]]

House, if they be transgressed, keeping within that line, and not falling
into the matter itself. Mem. Hakew., 30, 31.

But he may be permitted to speak again to clear a matter of fact, 3
Grey, 357, 416; or merely to explain himself, 2 Hats., 73, in some
material part of his speech, Ib., 75; or to the manner or words of the
question, keeping himself to that only, and not traveling into the
merits of it, Memorials in Hakew., 29; or to the orders of the

The House of Representatives has modified the parliamentary law as to
a Member's right to speak a second time by clauses 3 and 6 of rule XIV
and by permitting a Member controlling time in debate to yield to
another more than once. In ordinary practice rule XIV is not rigidly
enforced, and Members find little difficulty in making such explanations
as are contemplated by the parliamentary law.

Sec. 358. Participation of the Speaker in debate.

But if the
Speaker rise to speak, the Member standing up ought to sit down, that he
may be first heard. Town., col. 205; Hale Parl., 133; Mem. in Hakew.,
30, 31. Nevertheless, though the Speaker may of right speak to matters
of order, and be first heard, he is restrained from speaking on any
other subject, except where the House have occasion for facts within his
knowledge; then he may, with their leave, state the matter of fact. 3
Grey, 38.

This provision is usually observed in the practice of the House, so
far as the conduct of the Speaker in the chair is concerned. In several
instances the Speaker has been permitted by the House to make a
statement from the chair, as in a case wherein his past conduct had been
criticised (II, 1369), and in a case wherein there had been unusual
occurrences in the joint meeting to count the electoral vote (II, 1372),
and in a matter relating to a contest for the seat of the Speaker as a
Member (II, 1360). In rare instances the Speaker has made brief
explanations from the chair without asking the assent of the House (II,
1373, 1374). Speakers have called others to the chair and participated
in debate, usually without asking consent of the House (II, 1360, 1367,
footnote, 1368, 1371; III, 1950), and in one case a Speaker on the floor
debated a point of order which the Speaker pro tempore was to decide (V,
6097). In rare instances Speakers have left the chair to make motions on
the floor (II, 1367, footnote). Speakers may participate in debate in
Committee of the Whole, although at certain periods in the history of
the House the privilege was rarely exercised (II, 1367, footnote).

[[Page 167]]

his decision to vote on measures relating thereto even though
not required to do so under clause 6 of rule I (Jan. 12, 1991, p. 1085).

During the House's consideration of several measures relating to the
use of military force in the Persian Gulf, the Speaker took the floor
not only to debate the pending question but also to commend the House on
the quality of its recent debates on matters of war and peace and to
explain

Sec. 359. Impertinent, superfluous, or tedious
speaking.

No one is to speak impertinently or beside the question,
superfluous, or tediously. Scob., 31, 33; 2 Hats., 166, 168; Hale Parl.,
133.

The House, by clause 1 of rule XIV, provides that the Member shall
address himself to the question under debate, but neither by rule nor
practice has the House ever suppressed superfluous or tedious speaking,
its hour rule (clause 2 of rule XIV) being a sufficient safeguard in
this respect.

Sec. 360. Language reflecting on the House.

No person is to
use indecent language against the proceedings of the House; no prior
determination of which is to be reflected on by any Member, unless he
means to conclude with a motion to rescind it. 2 Hats., 169, 170;
Rushw., p. 3, v. 1, fol. 42. But while a proposition under consideration
is still in fieri, though it has even been reported by a committee,
reflections on it are no reflections on the House. 9 Grey, 508.

[[Page 168]]

In the practice of the House of Representatives it has been held out
of order in debate to cast reflections on either the House or its
membership or its decisions, whether present or past (V, 5132-5138). A
Member who had used offensive words against the character of the House,
and who declined to explain, was censured (II, 1247). Words impeaching
the loyalty of a portion of the membership have also been ruled out (V,
5139). Where a Member reiterated on the floor certain published charges
against the House, action was taken, although other business had
intervened, the question being considered one of privilege (III, 2637).
It has been held inappropriate and not in order in debate to refer to
the proceedings of a committee except such as have been formally
reported to the House (V, 5080-5083; VIII, 2269, 2485-2493; June 24,
1958, pp. 12120, 12122), but this rule does not apply to the proceedings
of a committee of a previous Congress (Chairman Hay, Feb. 2, 1914, p.
2782), and the rationale for this limitation on debate is in part
obsolete under the modern practice of the House insofar as the doctrine
is applied to open committee meetings and hearings.

Sec. 361. Personalities in debate forbidden.

No person, in
speaking, is to mention a Member then present by his name, but to
describe him by his seat in the House, or who spoke last, or on the
other side of the question, &c., Mem. in Hakew., 3; Smyth's Comw., L. 2,
c. 3; nor to digress from the matter to fall upon the person, Scob., 31;
Hale Parl., 133; 2 Hats., 166, by speaking reviling, nipping, or
unmannerly words against a particular Member. Smyth's Comw., L. 2, c. 3.
* * *

In the practice of the House, a Member is not permitted to refer to
another Member by name (V, 5144; VIII, 2526, 2529, 2536), or to address
him in the second person (V, 5140-5143; VI, 600; VIII, 2529). The proper
reference to another Member is ``the gentleman (or gentlewoman) from --
----,'' naming the Member's State (June 14, 1978, p. 17615; July 21,
1982, pp. 17314-15).

By rule of the House (clause 1 of rule XIV), as well as by
parliamentary law, personalities are forbidden (V, 4979, 5145, 5163,
5169), whether against the Member in the Member's capacity as
Representative or otherwise (V, 5152, 5153), even if the references may
be relevant to the pending question (Sept. 28, 1996, p. ----). The House
has censured a Member for gross personalities (II, 1251). The Chair may
intervene to prevent improper references where it is evident that a
particular Member is being described (Nov. 3, 1989, p. 27077). The Chair
does not rule on the veracity of a statement made by a Member in debate
(Apr. 9, 1997, p. ----).

Clause 1 of rule XIV has been held to proscribe: (1) referring to an
identifiable group of sitting Members as having committed a crime (e.g.,
``stealing'' an election) (Feb. 27, 1985, p. 3898; Speaker Wright, Mar.
21, 1989, p. 5016); (2) referring in a personally critical manner to the
political tactics of the Speaker or other Members (June 25, 1981, p.
14056); (3) referring to a particular Member of the House in a
derogatory fashion (Nov. 3, 1989, p. 27077----); (4) characterizing a
Member as ``the most impolite Member'' (June 27, 1996, p. ----); (5)
questioning the integrity of a Member (July 25, 1996, p. ----); and (6)
denunciating the spirit in which a Member had spoken (V, 6981).

[[Page 169]]

and ``you people are going to pay'' were held
not to be personal references (Nov. 14, 1995, p. ----). Similarly,
characterizing a pending measure as a ``patently petty political
terrorist tactic'' was held in order as a reference to the pending
measure rather than to the motive or character of the measure's
proponent (Nov. 9, 1995, p. ----). The Chair has also held in order a
general reference that ``big donors'' receive ``access to leadership
power and decisions'' because the reference did not identify a specific
Member as engaging in an improper quid pro quo (Apr. 9, 1997, p. ----).
A distinction has been drawn between general language, which
characterizes a measure or the political motivations behind a measure,
and personalities (V, 5153, 5163, 5169). Although remarks in debate may
not include personal attacks against a Member or an identifiable group
of Members, they may address political motivations for legislative
positions (Jan. 24, 1995, p. ----; Mar. 8, 1995, p. ----; Nov. 17, 1995,
p. ----; June 13, 1996, p. ----). For example, references to ``down-in-
the-dirt gutter politics''

A Member should refrain from references in debate to the official
conduct of a Member where such conduct is not the subject then pending
before the House by way of either a report of the Committee on Standards
of Official Conduct or another question of the privileges of the House
(see, e.g., July 24, 1990, p. ----; Mar. 19, 1992, p. ----; May 25,
1995, p. ----; Sept. 19, 1995, p. ----). This stricture also precludes a
Member from reciting news articles discussing a Member's conduct (Sept.
24, 1996, p. ----), reciting the content of a previously tabled
resolution raising a question of the privileges of the House (Nov. 17,
1995, p. ----; Sept. 19, 1996, p. ----), or even referring to a Member's
conduct by mere insinuation (Sept. 12, 1996, p. ----). Notice of an
intention to offer a resolution as a question of the privileges of the
House under rule IX does not render a resolution ``pending'' and thereby
permit references to conduct of a Member proposed to be addressed
therein (Sept. 19, 1996, p. ----).

The stricture against references to a Member's conduct not then
pending before the House applies to the conduct of all sitting Members
(Apr. 1, 1992, p. ----), including conduct that has previously been
resolved by the Committee on Standards of Official Conduct or the House
(Sept. 20, 1995, p. ----; Sept. 24, 1996, pp. ----, ----; Apr. 17, 1997,
p. ----). This stricture does not apply to the conduct of a former
Member, provided the reference is not made in an attempt to compare the
conduct of a former Member with the conduct of a sitting Member (Sept.
12, 1996, pp. ----, ----).

Debate on a pending privileged resolution recommending disciplinary
action against a Member may necessarily involve personalities. However,
clause 1 of rule XIV still prohibits the use of language that is
personally abusive (see, e.g., July 31, 1979, p. ----; Jan. 7, 1997, p.
----). Furthermore, during the actual pendency of such a resolution, a
Member may discuss a prior case reported to the House by the Committee
on Standards of Official Conduct for the purpose of comparing the
severity of the sanction recommended in that case with the severity of
the sanction recommended in the pending case, provided that the Member
does not identify, or discuss the details of the past conduct of, a
sitting Member (Dec. 18, 1987, p. 36271).

[[Page 170]]

14623; July 6, 1988, p. 16630; Mar. 22, 1989, p. 5130; May 2, 1989,
p. 7735; Nov. 3, 1989, p. 27077); (2) to personal criticism of a member
of the Committee on Standards of Official Conduct (Apr. 1, 1992, p. ----
; Mar. 3, 1995, p. ----; Sept. 19, 1996, p. ----; Sept. 24, 1996, p. --
--); and (3) to an investigation undertaken by the Committee on
Standards of Official Conduct, including suggestion of a course of
action (Mar. 3, 1995, p. ----; Sept. 24, 1996, p. ----; Sept. 28, 1996,
p. ----) or advocacy of an interim status report by the Committee (Sept.
12, 1996, p. ----; Sept. 28, 1996, p. ----).
In addition to the prohibition against addressing a Member's conduct
when it is not actually pending before the House, the Speaker has
advised that Members should refrain from references in debate (1) to the
motivations of a Member who filed a complaint before the Committee on
Standards of Official Conduct (Speaker pro tempore Foley, June 15, 1988, p.

A Member may not read in debate extraneous material critical of
another Member, which would be improper if spoken in the Member's own
words (May 25, 1995, p. ----; Sept. 12, 1996, p. ----). Thus, words in a
telegram read in debate which repudiated the ``lies and half-truths'' of
a House committee report were ruled out of order as reflecting on the
integrity of committee members (June 16, 1947, p. 7065), and
unparliamentary references in debate to newspaper accounts used in
support of a Member's personal criticism of another Member were
similarly ruled out of order (Feb. 25, 1985, p. 3346).

[[Page 171]]

Sec. 362. Criticism of the Speaker.

Complaint of the conduct
of the Speaker should be presented directly for the action of the House
and not by way of debate on other matters (V, 5188). In a case wherein a
Member used words insulting to the Speaker the House on a subsequent
day, and after other business had intervened, censured the offender (II,
1248). In such a case the Speaker would ordinarily leave the chair while
action should be taken by the House (II, 1366; V, 5188; VI, 565). In the
104th Congress the Chair reaffirmed that it is not in order to speak
disrespectfully of the Speaker, and that under the precedents the
sanctions for such violations transcend the ordinary requirements for
timeliness of challenges (II, 1248; Jan. 4, 1995, p. ----; Jan. 19,
1995, p. ----). It is not in order to arraign the personal conduct of
the Speaker (Jan. 18, 1995, p. ----; Jan. 19, 1995, p. ----). For
example, it is not in order to charge dishonesty or disregard of the
rules (July 11, 1985, p. 18550), to reflect on his patriotism by
accusing him of ``kowtowing'' to persons who would desecrate the flag
(June 20, 1990, p. 14877), to refer to him as a ``crybaby'' (Nov. 16,
1995, p. ----), or to refer to official conduct of the Speaker that has
previously been resolved by the Committee on Standards of Official
Conduct or the House (Apr. 17, 1997, p. ----). The Chair may take the
initiative to admonish Members for references in debate that disparage
the Speaker (June 25, 1981, p. 14056; Mar. 22, 1996, p. ----). Debate on
a resolution authorizing the Speaker to entertain motions to suspend the
rules may not engage in personality by discussing the official conduct
of the Speaker, even if possibly relevant to the question of empowerment
of the Speaker (Sept. 24, 1996, p. ----).

Sec. 363. Motives of Members not to be arraigned.

* * * The
consequences of a measure may be reprobated in strong terms; but to
arraign the motives of those who propose to advocate it is a
personality, and against order. Qui digreditur a materia ad personam,
Mr. Speaker ought to suppress. Ord. Com., 1604, Apr. 19.

The arraignment of the motives of Members is not permitted (V, 5147-
51; Dec. 13, 1973, p. 41270), and the Speakers have intervened to
prevent it, in the earlier practice preventing even mildest imputations
(V, 5161, 5162). However, remarks in debate may address political, but
not personal, motivations for legislative positions (Jan. 24, 1995, p.
----; Mar. 8, 1995, p. ----; Nov. 17, 1995, p. ----; June 13, 1996, p.
----) or for committee membership (July 10, 1995, p. ----). Accusing
another Member of hypocrisy has been held not in order (July 24, 1979,
p. 20380; Mar. 29, 1995, p. ----), and characterizing the motivation of
a Member in offering an amendment as deceptive and hypocritical was
ruled out of order (June 12, 1979, p. 11461). A statement in debate that
an amendment could only be demagogic or racist because only demagoguery
or racism impelled such an amendment was ruled out of order as impugning
the motives of the Member offering the amendment (Dec. 3, 1973, pp.
41270, 41271). However, debate characterizing a pending measure as a
``patently petty political terrorist tactic'' was held in order as
directed at the pending measure rather than the motive or the character
of its proponent (Nov. 9, 1995, p. ----). While in debate the assertion
of one Member may be declared untrue by another, yet in so doing an
intentional misrepresentation must not be implied (V, 5157-5160), and if
stated or implied is censurable (II, 1305) and presents a question of
privilege (III, 2717; VI, 607). A Member in debate having declared the
words of another ``a base lie,'' censure was inflicted by the House on
the offender (II, 1249).

[[Page 172]]

to take books or papers from the table,
or write there, 2 Hats., 171, p. 170.

Sec. 364. Disorder and interruptions during debate.

No one
is to disturb another in his speech by hissing, coughing, spitting, 6
Grey, 322; Scob., 8; D'Ewes, 332, col. 1, 640, col. 2, speaking or
whispering to another, Scob., 6; D'Ewes, 487, col. 1; nor stand up to
interrupt him, Town, col. 205; Mem. in Hakew., 31; nor to pass between
the Speaker and the speaking Member, nor to go across the House, Scob.,
6, or to walk up and down it, or

The House of Representatives has by clause 7 of rule XIV prescribed
certain rules of decorum differing somewhat from this provision of the
parliamentary law, but supplemental to it rather than antagonistic. In
one respect, however, the practice of the House differs from the
apparent intent of the parliamentary law. In the House a Member may
interrupt by addressing the Chair for permission of the Member speaking
(V, 5006; VIII, 2465); but it is entirely within the discretion of the
Member occupying the floor to determine when and by whom he shall be
interrupted (V, 5007, 5008; VIII, 2463, 2465). There is no rule of the
House requiring a Member having the floor to yield to another Member to
whom he has referred during debate (Aug. 2, 1984, p. 22241). The Chair
may take the initiative in preserving order when a Member declining to
yield in debate continues to be interrupted by another Member, may order
that the interrupting Member's remarks not appear in the Record (July
26, 1984, p. 21247), and may admonish Members not to converse with a
Member attempting to address the House (Feb. 21, 1984, p. 2758), as it
is not in order to engage in disruption while another is delivering
remarks in debate (June 27, 1996, p. ----). On the opening day of the
103d Congress, during the customary announcement of policies with
respect to particular aspects of the legislative process, the Chair
elaborated on the rules of order in debate with a general statement
concerning decorum in the House of Representatives (Jan. 5, 1993, p. --
--). For further discussion of interruptions in debate, see Sec. 750,
infra.

Sec. 365. Parliamentary method of silencing a
tedious Member.

Nevertheless, if a Member finds that it is not the inclination of
the House to hear him, and that by conversation or any other noise they
endeavor to drown his voice, it is his most prudent way to submit to the
pleasure of the House, and sit down; for it scarcely ever happens that
they are guilty of this piece of ill manners without sufficient reason,
or inattention to a Member who says anything worth their hearing. 2
Hats., 77, 78.

[[Page 173]]

In the House of Representatives, where the previous question and hour
rule of debate have been used for many years, the parliamentary method
of suppressing a tedious Member has never been imported into the
practice (V, 5445).

Sec. 366. The parliamentary law as to naming a disorderly
Member.

If repeated calls do not produce order, the Speaker may call by
his name any Member obstinately persisting in irregularity; whereupon
the House may require the Member to withdraw. He is then to be heard in
exculpation, and to withdraw. Then the Speaker states the offense
committed; and the House considers the degree of punishment they will
inflict. 2 Hats., 167, 7, 8, 172.

This provision of parliamentary law should be in conjunction with
clauses 4 and 5 of rule XIV, Sec. Sec. 760-761, infra, particularly as
this provision relates to the ultimate authority of the House to
determine whether a Member ignoring repeated calls to order should be
permitted to proceed in order.

Sec. 367. Proceedings in cases of assaults and
affrays.

For instances of assaults and affrays in the House of Commons,
and the proceedings thereon, see 1 Pet. Misc., 82; 3 Grey, 128; 4 Grey,
328; 5 Grey, 382; 6 Grey, 254; 10 Grey, 8. Whenever warm words or an
assault have passed between Members, the House, for the protection of
their Members, requires them to declare in their places not to prosecute
any quarrel, 3 Grey, 128, 293; 5 Grey, 280; or orders them to attend the
Speaker, who is to accommodate their differences, and report to the
House, 3 Grey, 419; and they are put under restraint if they refuse, or
until they do. 9 Grey, 234, 312.

[[Page 174]]

(II, 1643). In case of an aggravated assault by one Member on
another on the portico of the Capitol for words spoken in debate, the
House censured the assailant and three other Members who had been
present, armed, to prevent interference (II, 1655, 1656). Assaults or
affrays in the Committee of the Whole are dealt with by the House (II,
1648-1651).

In several instances assaults and affrays have occurred on the floor
of the House of Representatives. Sometimes the House has allowed these
affairs to pass without notice, the Members concerned making apologies
either personally or through other Members (II, 1658-1662). In other
cases the House has exacted apologies (II, 1646-1651, 1657), or required
the offending Members to pledge themselves before the House to keep the
peace

[[Page 175]]

any time the same day. 2 Hats., 196; Mem. in Hakew., 71; 3 Grey, 48;
9 Grey, 514.

Sec. 368. Parliamentary law as to taking down
disorderly words.

Disorderly words are not to be noticed till the Member has
finished his speech. 5 Grey, 356; 6 Grey, 60. Then the person objecting
to them, and desiring them to be taken down by the Clerk at the table,
must repeat them. The Speaker then may direct the Clerk to take them
down in his minutes; but if he thinks them not disorderly, he delays the
direction. If the call becomes pretty general, he orders the Clerk to
take them down, as stated by the objecting Member. They are then a part
of his minutes, and when read to the offending Member, he may deny they
were his words, and the House must then decide by a question whether
they are his words or not. Then the Member may justify them, or explain
the sense in which he used them, or apologize. If the House is
satisfied, no further proceeding is necessary. But if two Members still
insist to take the sense of the House, the Member must withdraw before
that question is stated, and then the sense of the House is to be taken.
2 Hats., 199; 4 Grey, 170; 6 Grey, 59. When any Member has spoken, or
other business intervened, after offensive words spoken, they can not be
taken notice of for censure. And this is for the common security of all,
and to prevent mistakes which must happen if words are not taken down
immediately. Formerly they might be taken down at

The House of Representatives has, by clauses 4 and 5 of rule XIV,
provided a method of procedure in cases of disorderly words. The House
permits and requires them to be noticed as soon as uttered, and has not
insisted that the offending Member withdraw while the House is deciding
as to its course of action.

Sec. 369. Disorderly words taken down and reported
from Committee of the Whole.

Disorderly words spoken in a committee must be
written down as in the House; but the committee can only report them to
the House for animadversion. 6 Grey, 46.

This provision of the parliamentary law has been applied to the
Committee of the Whole rather than to select or standing committees. The
House has censured a Member for disorderly words spoken in Committee of
the Whole and reported therefrom (II, 1259).

Sec. 370. References in debate to the
Executive.

In Parliament, to speak irreverently or seditiously against
the King is against order. Smyth's Comw., L. 2, c. 3; 2 Hats., 170.

[[Page 176]]

----; Jan. 24, 1996, p. ----; May 30, 1996, p. ----); (5) calling him a
``draft-dodger'' or accusing him of ``raping the truth'' (Apr. 24, 1996,
p. ----; Sept. 30, 1996, p. ----); (6) describing his action as
``cowardly'' (Oct. 25, 1989, p. 25817); (7) charging him with intent to
be intellectually dishonest (May 9, 1990, p. 9828); (8) referring to him
as ``a little bugger'' (Nov. 18, 1995, p. ----); (9) alluding to alleged
sexual misconduct on his part (May 10, 1994, p. ----); and (10) alluding
to a propensity for unethical behavior on his part (June 20, 1996, p. --
--). The Chair may admonish Members transgressing this stricture even
after other debate has intervened (Jan. 23, 1996, p. ----).
This provision of the parliamentary law is manifestly inapplicable to
the House of Representatives (V, 5086); and it has been held in order in
debate to refer to the President of the United States or his opinions,
either with approval or criticism, provided that such reference be
relevant to the subject under discussion and otherwise conformable to
the rules of the House (V, 5087-5091; VIII, 2500). Under this standard
the following references are in order: (1) a reference to the probable
action of the President (V, 5092); (2) an adjuration to the President to
keep his word (although an improper form of address) (Dec. 19, 1995, p.
----); and (3) an accusation that the President ``frivolously vetoed'' a
bill (Nov. 8, 1995, p. ----). Although wide latitude is permitted in
debate on a proposition to impeach the President (V, 5093), Members must
abstain from language personally offensive (V, 5094). Personal abuse,
innuendo, or ridicule of the President is not permitted (VIII, 2497;
Aug. 12, 1986, p. 21078; Oct. 21, 1987, p. 8857; Sept. 21, 1994, p. ----
). Under this standard the following references are not in order: (1)
calling the President a ``liar'' or accusing him of ``lying'' (June 26,
1985, p. 17394; Sept. 24, 1992, p. ----; Nov. 15, 1995, p. ----; June 6,
1996, p. ----); (2) attributing to him ``hypocrisy'' (Sept. 25, 1992, p.
----); (3) accusing him of giving aid and comfort to the enemy (Jan. 25,
1995, p. ----); (4) accusing him of ``demagoguery'' (Jan. 23, 1996, p.

A Member may not read in debate extraneous material personally abusive
of the President, which would be improper if spoken in the Member's own
words (July 12, 1996, p. ----; July 26, 1996, p. ----), such as calling
the President a liar (Mar. 3, 1993, p. ----; Nov. 15, 1995, p. ----; May
2, 1996, p. ----). The Chair has advised that the protections afforded
by Jefferson's Manual and the precedents against unparliamentary
references to the President, himself, do not necessarily obtain for
members of his family (July 12, 1990, p. 17206). In the 102d Congress,
the Speaker enunciated a minimal standard of propriety for all debate
concerning nominated candidates for the Presidency, based on the
traditional proscription against personally offensive references to the
President even in his capacity as a candidate (Speaker Foley, Sept. 24,
1992, p. ----).

For discussion of the stricture against addressing remarks in debate
to the President, as in the second person, see Sec. 749, infra.

On January 27, 1909 (VIII, 2497), the House adopted a report of a
committee appointed to investigate the question, which report in part
stated:

``The freedom of speech in debate in the House of Representatives
should never be denied or abridged, but freedom of speech in debate does
not mean license to indulge in personal abuses or ridicule. The right of
Members of the two Houses of Congress to criticise the official acts of
the President and other executive officers is beyond question, but this
right is subject to proper rules requiring decorum in debate. Such right
of criticism in inherent upon legislative authority. The right to
legislate involves the right to consider conditions as they are and to
contrast present conditions with those of the past or those desired in
the future. The right to correct abuses by legislation carries the right
to consider and discuss abuses which exist or which are feared.

[[Page 177]]

``It is, however, the duty of the House to require its Members in
speech or debate to preserve that proper restraint which will permit the
House to conduct its business in an orderly manner and without
unnecessarily and unduly exciting animosity among its Members or
antagonism from those other branches of the Government with which the
House is correlated.''

Sec. 371. Debate and proceedings in the other House not to
be noticed in debate.

It is a breach of order in debate to notice what
has been said on the same subject in the other House, or the particular
votes or majorities on it there; because the opinion of each House
should be left to its own independency, not to be influenced by the
proceedings of the other; and the quoting them might beget reflections
leading to a misunderstanding between the two Houses. 8 Grey, 22.

[[Page 178]]

of a Senator in an attempt to influence his future vote (Oct. 25, 1990,
p. 34083).
Until clause 1 of rule XIV, was amended by adoption of the rules in
the 100th Congress (H. Res. 5, Jan. 6, 1987, p. 6) and again in the
101st Congress (H. Res. 5, Jan. 3, 1989, p. 72), this principle of
comity and the parliamentary law as described by Jefferson governed
debate in the House of Representatives to the full extent of its
provisions (see generally, V, 5095-5130; VIII, 2501-21; July 31, 1984,
p. 21670; Procedure, ch. 29, sec. 14). Clause 1 of rule XIV, now
provides that ``debate may include references to actions taken by the
Senate or by committees thereof which are a matter of public record,
references to the pendency or sponsorship in the Senate of bills,
resolutions, and amendments, factual descriptions relating to Senate
action or inaction concerning a measure then under debate in the House,
and quotations from Senate proceedings on a measure then under debate in
the House and which are relevant to the making of legislative history
establishing the meaning of that measure, but may not include
characterizations of Senate action or inaction, other references to
individual Members of the Senate, or other quotations from Senate
proceedings.'' The prohibition against such references to Senators
includes a reference not explicitly naming the Senator (VIII, 2512; Feb.
23, 1994, p. ----; June 30, 1995, p. ----; Feb. 27, 1997, p. ----). A
Member may not read or quote from the record of speeches or proceedings
in the Senate, or insert such material in the Record (V, 5107-5111;
VIII, 2501-2506; June 25, 1986, p. 15576; Procedure, ch. 29, sec. 14.3)
except to make legislative history on a measure then under debate, and
the prohibition extends to quoting accounts of Senate debates printed
elsewhere, such as in reprints or in the press (VIII, 2053). It has even
been held out of order to criticize words spoken in the Senate by one
not a Member of that body in the course of an impeachment trial (V,
5106). It is not in order in debate to mention the name of a Senator
(except as the sponsor of a measure or in quotations from Senate
proceedings for the purpose of making legislative history), to refer to
a Senator or his vote on a proposition (Procedure, ch. 29, sec. 14.2;
Sept. 29, 1983, pp. 26515-16), or to publish the telephone number

Except as permitted in clause 1 of rule XIV, it is equally out of
order to characterize the position of the Senate, or of Senators
designated by name or position, on legislative issues (Oct. 5, 1984, pp.
30326-27; Oct. 11, 1984, p. 32153; Nov. 2, 1989, p. 26918; July 12,
1990, p. ----), or to speculate as to the intent of Senators or of the
Senate on legislation (Oct. 11, 1984, pp. 32221-23), or to characterize
Senate action or inaction (see, e.g., Apr. 29, 1986, p. 8856; July 31,
1986, p. 18253; Aug. 4, 1987, p. 22288; Oct. 28, 1993, p. ----; Jan. 3,
1996, p. ----); or to question the courage or resolve of its Members
(Aug. 4, 1989, p. 19315). Nor is it in order in debate to specifically
urge that the Senate take certain action; thus a Member may not refer to
confirmation proceedings in the Senate by advocating that it take a
certain action with respect to a Presidential nominee (Feb. 7, 1984, p.
1979; Oct. 8, 1991, p. 25754; May 24, 1995, p. ----), or by
characterizing the action of a Senate committee on a judicial nominee
(July 9, 1992, p. ----), or suggest that the President urge Senate
conferees to meet with House conferees on specific legislation (Aug. 2,
1984, p. 22270).

On one occasion before the rule was changed in the 101st Congress to
permit certain quotations from Senate proceedings for the purpose of
making legislative history, the Speaker entertained a unanimous-consent
request that a Member be permitted to refer in debate to Senate
proceedings (to quote a statement by the Senate Majority Leader as to
probable Senate action on the measure then pending in the House), but
the Speaker first ascertained in what manner the reference would be
made, in order to assure that remarks critical of the Senate, its
Members or proceedings would not be made (Speaker O'Neill, June 4, 1980,
p. 13212). But the Chair will not entertain such a request where the
references would necessarily imply criticism of the Senate, such as to
respond to remarks in the Senate which were critical of Members of the
House (VIII, 2519).

[[Page 179]]

or to the Vice President in his former capacity as a Senator (Dec. 14,
1995, p. ----). References in debate to the Vice President (as President
of the Senate) are governed by the standards of reference permitted
toward the President rather than the more stringent prohibitions under
clause 1 of rule XIV against references to sitting Senators (Dec. 14,
1995, p. ----). References to Members of the Senate in their capacities
as candidates for the Presidency or other office are not prohibited;
where a Senator is a candidate for President or Vice President his
official policies, actions, and opinions as a candidate may be
criticized in terms not personally offensive (Speaker Wright, Sept. 29,
1988, p. 26683), but references attacking the character or integrity of
a Senator even in that context are not in order (Oct. 30, 1979, p.
30150).
In one case, the personal views of a Senator, not uttered in the
Senate, were allowed to be quoted in the House (V, 5112), but the weight
of recent precedent and the purposes of the rule prohibit references to
speeches or statements of Senators occurring outside the Senate Chamber
(VIII, 2515; June 26, 1935, pp. 10189-90; May 2, 1941, pp. 3566-67;
Procedure, ch. 29, sec. 14.3; May 21, 1984, p. 13024). With respect to
references to members of the Senate acting in another capacity,
references to former Members of the House who are presently Senators are
only permissible if they merely address prior House service and are
not implicitly critical of Senate service (May 8, 1984, p.
11428). A Member of the House has been permitted to refer to a speech
made in the Senate by one no longer a Member of that body (V, 5112),
although references to Senate proceedings on legislation in the current
Congress other than those expressly permitted to establish legislative
history should be avoided. In the 104th Congress the Chair held that the
precise standard in clause 1 of rule XIV for references to ``individual
Members of the Senate'' does not apply to references to former Senators

Even prior to the 100th Congress (as indicated in Procedure, ch. 29,
sec. 14.1) it was permissible to refer to proceedings in the other
House, provided the reference does not contravene the principles stated
by Jefferson. A Member must be permitted to refer to the existence of
the Senate and its functions in a general and neutral way. For example,
a Member may oppose a sine die adjournment resolution on the grounds
that Congress should stay in session to complete action on specified
legislation then pending in the Senate (V, 5115). It is appropriate to
state whether or not the Senate has acted on House-passed legislation as
long as criticism is neither stated nor implied (Oct. 4, 1984, p.
30047). If references to the Senate are appropriate, the Member
delivering them is not required to use the term ``the other body,'' and
the use of the term ``Senate'' is not a per se violation of the rule of
comity (Oct. 4, 1984, p. 30047). It is in order in debate, while
discussing a question involving conference committee procedure, to state
what actually occurred in a conference committee session, without
referring to or criticizing a named member of the Senate (July 29, 1935,
p. 12011).

[[Page 180]]

his own conduct and motives, without bringing the whole controversy into
discussion or assailing the Senator (V, 5123-5126). Propositions relating
to breaches of these principles have been entertained as of privilege (V,
5129, 6980).

Sec. 372. The other House and its Members not to be
criticized in debate.

While the Senate may be referred to properly in
debate, it is not in order to criticize its acts (V, 5114-5120; Dec. 10,
1980, p. 33205; Apr. 27, 1993, p. ----); refer to a Senator in terms of
personal criticism (V, 5121, 5122; VIII, 2518, 2521; July 10, 1990, p.
17205); even anonymously (VIII, 2512; Feb. 23, 1994, p. ----; June 30,
1995, p. ----; Feb. 27, 1997, p. ---- ); for purpose of complimenting
(VIII, 2509; Apr. 21, 1993, p. ----), or read a paper making such
criticism (V, 5127); and the inhibition extends to references to the
remarks or actions of a Senator outside the Senate (VIII, 2515; Speaker
Albert, Oct. 7, 1975, p. 32055). The prohibition extends to references
to another person's criticism of a Member of the Senate (Aug. 4, 1983,
p. 23145). After examination by a committee a speech reflecting on the
character of the Senate was ordered to be stricken from the Record, on
the ground that it tended to create ``unfriendly conditions between the
two bodies * * * obstructive of wise legislation and little short of a
public calamity'' (V, 5129). But where a Member has been assailed in the
Senate, he has been permitted to explain

Sec. 373. Complaint by one House of conduct of a
Member of the other.

Neither House can exercise any authority over a Member or
officer of the other, but should complain to the House of which he is,
and leave the punishment to them.

In a notable instance, wherein a Member of the House had assaulted a
Senator in the Senate Chamber for words spoken in debate, the Senate
examined the breach of privilege and transmitted its report to the
House, which punished the Member (II, 1622). A Senator having assailed a
House Member in debate, the House messaged to the Senate a resolution
declaring the language a breach of privilege and requested the Senate to
take appropriate action (Sept. 27, 1951, p. 12270). The Senator
subsequently asked unanimous consent to correct his remarks in the
permanent Congressional Record, but objection was raised (Sept. 28,
1951, p. 12383). But where certain Members of the House, in a published
letter, sought to influence the vote of a Senator in an impeachment
trial, the House declined to consider the matter as a breach of
privilege (III, 2657). While on one occasion it was held that a
resolution offered in the House requesting the Senate to expunge from
the Record statements in criticism of a Member of the House did not
constitute a question of privilege, being in violation of the rule
prohibiting references to the Senate in debate (VIII, 2519), a properly
drafted resolution referring to language published in the record on a
designated page of Senate proceedings as constituting a breach of
privilege and requesting the Senate to take appropriate action
concerning the subject has been held to present a question of the
privileges of the House (VIII, 2516).

[[Page 181]]

pressions to go unnoticed which may give a ground of complaint to the
other House, and introduce proceedings and mutual accusations between
the two Houses, which can hardly be terminated without difficulty and
disorder. 3 Hats., 51.

Sec. 374. Duty of the Speaker to prevent expressions
offensive to the other House.

* * * Where the complaint is of words
disrespectfully spoken by a Member of another House, it is difficult to
obtain punishment, because of the rules supposed necessary to be
observed (as to the immediate noting down of words) for the security of
Members. Therefore it is the duty of the House, and more particularly of
the Speaker, to interfere immediately, and not to permit ex-

In the House of Representatives this rule of the parliamentary law is
considered as binding on the Chair (V, 5130; VIII, 2465), and it is the
duty of the Speaker to call to order a Member who criticizes the actions
of the Senate, its Members or committees in debate or through an
insertion in the Record (Speaker Albert, Apr. 17, 1975, p. 10458; Oct.
7, 1975, pp. 32055-56). The Chair has distinguished between engaging in
personality toward another Member of the House, as to which the Chair
normally awaits a point of order from the floor, and improper references
to Members of the Senate, which violate comity between the Houses
whether or not engaging in personality, as to which the Chair normally
takes initiative (Feb. 27, 1997, p. ----). Pending consideration of a
measure relating to the Senate, the Speaker announced his intention to
strictly enforce this provision of Jefferson's Manual prohibiting
improper references to the Senate, and to deny recognition to Members
violating the prohibition, subject to permission of the House to proceed
in order (Speaker O'Neill, June 16, 1982, p. 13843). While the Chair
should take the initiative to prevent improper references to the Senate
in debate, the Chair will not respond to hypothetical questions as to
the propriety of possible characterizations of Senate actions prior to
their use in debate (Oct. 24, 1985, p. 28819). For a further discussion
of the Speaker's duties regarding unparliamentary debate, see
Sec. Sec. 760-61, infra.

[[Page 182]]

draw before any question is moved. But if the question itself is the
charge, as for breach of order or matter arising in the debate, then the
charge must be stated (that is, the question must be moved), himself
heard, and then to withdraw. 2 Hats., 121, 122.

Sec. 375. Course of the Member when business concerning
himself is debating.

No Member may be present when a bill or any business
concerning himself is debating; nor is any Member to speak to the merits
of it till he withdraws. 2 Hats., 219. The rule is that if a charge
against a Member arise out of a report of a committee, or examination of
witnesses in the House, as the Member knows from that to what points he
is to direct his exculpation, he may be heard to those points before any
question is moved or stated against him. He is then to be heard, and
with-

In 1832, during proceedings for the censure of a Member, the Speaker
informed the Member that he should retire (II, 1366); but this seems to
be an exceptional instance of the enforcement of the law of Parliament.
In other cases, after the proposition for censure or expulsion has been
proposed, Members have been heard in debate, either as a matter of right
(II, 1286), as a matter of course (II, 1246, 1253), by express provision
(II, 1273), and in writing (II, 1273), or by unanimous consent (II,
1275). A Member against whom a resolution of censure was pending was
asked by the Speaker if he desired to be heard (VI, 236). But a Member
was not permitted to depute another Member to speak in his behalf (II,
1273). In modern practice the Member has been permitted to speak in his
own behalf, both in censure (June 10, 1980, pp. 13802-11) and expulsion
proceedings (Oct. 2, 1980, pp. 28953-78). A Member-elect has been
permitted to participate in debate on a resolution relating to his right
to take the oath (Jan. 10, 1967, p. 23).

Sec. 376. Disqualifying personal interest of a
Member.

Where the private interests of a Member are concerned in a bill or
question he is to withdraw. And where such an interest has appeared, his
voice has been disallowed, even after a division. In a case so contrary,
not only to the laws of decency, but to the fundamental principle of the
social compact, which denies to any man to be a judge in his own cause,
it is for the honor of the House that this rule of immemorial observance
should be strictly adhered to. 2 Hats., 119, 121; 6 Grey, 368.

[[Page 183]]

a vote given by a Senator on a question relating to his own
right to a seat; but the House has never had occasion to proceed so far
(V, 5959).

In the House of Representatives it has not been usual for the Member
to withdraw when his private interests are concerned in a pending
measure, but the House has provided by clause 1 of rule VIII that the
Member shall not vote in such a contingency. In one instance the Senate
disallowed

Sec. 377. Wearing of hats by Members.

No Member is to come
into the House with his head covered, nor to remove from one place to
another with his hat on, nor is to put on his hat in coming in or
removing, until he be set down in his place. Scob., 6.

Sec. 378. Adjournment of questions of order.

Until 1837 the parliamentary practice of wearing hats during the
session continued in the House; but in that year it was abolished by
clause 7 of rule XIV.
A question of
order may be adjourned to give time to look into precedents. 2 Hats.,
118.

<> In
Parliament, all decisions of the Speaker may be controlled by the House.
3 Grey, 319.

The Speaker has declined, on a difficult question of order, to rule
until he had taken time for examination (III, 2725; VI, 432; VII, 2106;
VIII, 2174, 2396, 3475), and may take a parliamentary inquiry under
advisement, especially where not related to the pending proceedings
(VIII, 2174; Apr. 7, 1992, p. ----), but it is conceivable that a case
might arise wherein this privilege of the Chair would require approval
of the majority of the House, to prevent arbitrary obstruction of the
pending business by the Chair. On occasion, the Chair has reversed as
erroneous a decision previously made (VI, 639; VII, 849; VIII, 2794,
3435). The law of Parliament evidently contemplates that the adjournment
of a question of order shall be controlled by the House.

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[DOCID:hrmanual-25]

The Speaker's decision on a decision of order is subject to appeal by
any Member (clause 4 of rule I).

sec. xviii.--orders of the house.

[[Page 184]]

Sec. 380. Keeping of the doors of the House.

Of right, the
door of the House ought not to be shut, but to be kept by porters, or
Sergeants-at-Arms, assigned for that purpose. Mod ten. Parl., 23.

Sec. 381. Right of the Member to demand execution of the
subsisting order.

The only case where a Member has a right to insist on
anything, is where he calls for the execution of a subsisting order of
the House. Here there having been already a resolution, any person has a
right to insist that the Speaker, or any other whose duty it is, shall
carry it into execution; and no debate or delay can be had on it.

<> Thus
any Member has a right to have the House or gallery cleared of
strangers, an order existing for that purpose; or to have the House told
when there is not a quorum present. 2 Hats., 87, 129. How far an order
of the House is binding, see Hakew., 392.

As a request for unanimous consent to consider a bill is in effect a
request to suspend the order of business temporarily, a Member has the
right at any time to demand the ``regular order'' (IV, 3058). Where the
regular order is demanded pending a request for unanimous consent,
further reservation of the right to object thereto is precluded (Speaker
Foley, Nov. 14, 1991, p. 32128). Occasionally a Member may incorrectly
demand the ``regular order'' to assert that remarks are not confined to
the question under debate. On such an occasion the Chair may treat the
demand as a point of order requiring a ruling by the Chair (May 1, 1996,
p. ----).

Absent ``an existing order for that purpose,'' a Member may not demand
that the galleries be cleared, as this power resides in the House (II,
1353), which has by rule extended the power to the Speaker (clause 2 of
rule I) and the chairman of the Committee of the Whole (clause 1 of rule
XXIII), but not to the individual Member.

[[Page 185]]

on till an hour at which the House is usually full [which in
Senate is at noon].

Sec. 383. Parliamentary law as to proceeding with orders
of the day.

But where an order is made that any particular matter be taken
up on a particular day, there a question is to be put, when it is called
for, whether the House will now proceed to that matter? Where orders of
the day are on important or interesting matter, they ought not to be
proceeded

The rule of the House of Representatives providing for raising the
question of consideration (clause 3 of rule XVI) has, in connection with
the practice as to special orders, superseded this provision of the
parliamentary law. The House always proceeds with business at its hour
of meeting, unless prevented by a point that no quorum is present (IV,
2732).

Sec. 384. Orders of the day now obsolete.

Orders of the day
may be discharged at any time, and a new one made for a different day, 3
Grey, 48, 313.

The House of Representatives found the use of ``Orders of the day'' as
a method of disposing business impracticable as long ago as 1818, and
not long after abandoned their use (IV, 3057), although an interesting
reference to them survives in clause 1 of rule XXIV. The House proceeds
under rule XXIV unless that order is displaced by the use of ``special
orders'' or the intervention of privileged business.

Sec. 385. Business at the end of a session.

When a session
is drawing to a close and the important bills are all brought in, the
House, in order to prevent interruption by further unimportant bills,
sometimes comes to a resolution that no new bill be brought in, except
it be sent from the other House. 3 Grey, 156.

This provision is obsolete so far as the practice of the House of
Representatives is concerned, as business goes on uninterruptedly until
the Congress expires (rule XXVI).

Sec. 386. Effect of end of the session on existing orders,
especially as to imprisonment.

All orders of the House determine with the
session; and one taken under such an order may, after the session is
ended, be discharged on a habeas corpus. Raym., 120; Jacob's L. D. by
Ruffhead; Parliament, 1 Lev., 165, Pitchara's case.

[[Page 186]]

with a session (I, 104-109). The House
uses few standing orders. However, in the first session of the 104th
Congress, the House continued a standing order regarding special-order
and morning-hour speeches for the remainder of the entire Congress (May
12, 1995, p. ----). In 1866 the House discussed its power to imprison
for a period longer than the duration of the existing session (II,
1629), and in 1870, for assaulting a Member returning to the House from
absence on leave. Patrick Woods was committed for a term extending
beyond the adjournment of the session, but not beyond the term of the
existing House (II, 1628).

The House of Representatives, by rule XXVI and the practice
thereunder, has modified the rule of Parliament as to business pending
at the end of a session which is not at the same time the end of a
Congress. A standing order, like that providing for the hour of daily
meeting of the House, expires

Sec. 387. Jefferson's views as to the constitutional
power to make rules.

Where the Constitution authorizes each House to
determine the rules of its proceedings it must mean in those cases
(legislative, executive, or judiciary) submitted to them by the
Constitution, or in something relating to these, and necessary toward
their execution. But orders and resolutions are sometimes entered in the
journals having no relation to these, such as acceptances of invitations
to attend orations, to take part in procession, etc. These must be
understood to be merely conventional among those who are willing to
participate in the ceremony, and are therefore, perhaps, improperly
placed among the records of the House.

[[Page 187]]

(IV, 3579). In modern practice, existing statutory procedures are readopted
as rules of the House at the beginning of each Congress (see, e.g., H.
Res. 6, Jan. 4, 1995, p. ----). The theories involved in this question
have been most carefully examined and decisively determined in reference
to the law of 1851, which directs the method of procedure for the House
in its constitutional function of judging the elections of its Members;
and it has been determined that this law is not of absolute binding
force on the House, but rather a wholesome rule not to be departed from
except for cause (I, 597, 713, 726, 833; II, 1122). Under current
practice, the House in the resolution adopting its rules adopts
provisions of law, and of concurrent resolutions adopted pursuant to law
which have constituted rules of the House at the expiration of the
preceding Congress, as the rules of the new House (see H. Res. 5, Jan.
3, 1983, p. 34; Sec. 1013, infra). Where the House amended a standing
rule of general applicability during a session and the amended rule did
not require prospective application, the rule was interpreted to apply
retroactively (Sept. 28, 1994, p. ----).

Sec. 388. The House's construction of its power to adopt
rules.

The House of Representatives has frequently examined its
constitutional power to make rules, and this power has also been
discussed by the Supreme Court (V, 6755). It has been settled that
Congress may not by law interfere with the constitutional right of a
future House to make its own rules (I, 82; V, 6765, 6766), or to
determine for itself the order of proceedings in effecting its
organization (I, 242-245; V, 6765, 6766). It has also been determined,
after long discussion and trial by practice, that one House may not
continue its rules in force to and over its successor (I, 187, 210; V,
6002, 6743-6747; Jan. 22, 1971, p. 132). A law passed by the existing
Congress has been recognized as of binding force in matters of procedure
(II, 1341; V, 6767, 6768); but when a law passed by a preceding Congress
presumes to lay down a rule of procedure the House has been inclined to
doubt its binding force (V, 6766), and in one case the Chair denied the
authority of such a law that conflicted with a rule of the House

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[DOCID:hrmanual-26]

As to the participation on occasions of ceremony, the House has
entered its orders on its journal; but it rarely attends outside the
Capitol building as a body, usually preferring that its Members go
individually (V, 7061-7064) or that it be represented by a committee (V,
7053-7056). It has discussed, but not settled, its power to compel a
Member to accompany it without the Hall on an occasion of combined
business and ceremony (II, 1139). But the House remains in session for
the inauguration of the President on the portico of the Capitol (Jan.
20, 1969, pp. 1288-92) and the mace is carried to the ceremony.

<> A
petition prays something. A remonstrance has no prayer. 1 Grey, 58.

sec. xix.--petition.

The rules of the House of Representatives make no mention of
remonstrances, but do mention petitions and memorials (rule XXII).
Resolutions of state legislatures and of primary assemblies of the
people are received as memorials (IV, 3326, 3327), but papers general or
descriptive in form may not be presented as memorials (IV, 3325).

[[Page 188]]

senting it affirmed to be all in the
handwriting of the petitioner, and his name written in the beginning,
was on the question (March 14, 1800) received by the Senate. The
averment of a member, or of somebody without doors, that they know the
handwriting of the petitioners, is necessary, if it be questioned. 6
Grey, 36. It must be presented by a member, not by the petitioners, and
must be opened by him holding it in his hand. 10 Grey, 57.

Sec. 390. Signing and presentation of
petitions.

Petitions must be subscribed by the petitioners Scob., 87; L. Parl.,
c. 22; 9 Grey, 362, unless they are attending, 1 Grey, 401 or unable to
sign, and averred by a member, 3 Grey, 418. But a petition not
subscribed, but which the member pre-

In the House of Representatives petitions have been presented for many
years by filing with the Clerk (clause 1 of rule XXII). Members file
them, and petitioners do not attend on the House in the sense implied in
the parliamentary law. In cases where a petition set forth serious
changes, the petitioner was required to have his signature attested by a
notary (III, 2030, footnote).

Sec. 391. Parliamentary law for the reception of
petitions.

Regularly a motion for receiving it must be made and seconded, and a
question put, whether it shall be received, but a cry from the House of
``received,'' or even silence, dispenses with the formality of this
question. It is then to be read at the table and disposed of.

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Prior to the adoption of the provisions of clause 1 of rule XXII,
petitions were presented from the floor by Members, and questions
frequently arose as to the reception thereof (IV, 3350-3356). But under
the present practice such procedure does not occur.

sec. xx.--motion.

Sec. 392. Parliamentary law as to making, withdrawing, and
reading of motions.

When a motion has been made, it is not to be put
to the question or debated until it is seconded. Scob., 21.

[[Page 189]]

leave of the House. It is to be put into writing, if
the House or Speaker require it, and must be read to the House by the
Speaker as often as any Member desires it for his information. 2 Hats.,
82.

It is then, and not till then, in possession of the House, and can not
be withdrawn but by

The rules of the House of Representatives (clause 1 of rule XVI) have
long since dispensed with the requirement of a second for ordinary
motions (V, 5304). Clause 2 of rule XVI provides further that a motion
may be withdrawn ``before decision or amendment''; and clause 1 of the
same rule provides that the motion shall be reduced to writing ``on the
demand of any Member.'' In the practice of the House, when a paper on
which the House is to vote has been read once, the reading may not be
required again unless the House shall order it read (V, 5260).

Sec. 393. Interruptions of the Member having the
floor.

It might be asked whether a motion for adjournment or for the
orders of the day can be made by one Member while another is speaking?
It can not. When two Members offer to speak, he who rose first is to be
heard, and it is a breach of order in another to interrupt him, unless
by calling him to order if he departs from it. And the question of order
being decided, he is still to be heard through. A call for adjournment,
or for the order of the day, or for the question, by gentlemen from
their seats, is <> not a motion. No motion
can be made without rising and addressing the Chair. Such calls are
themselves breaches of order, which, though the Member who has risen may
respect, as an expression of impatience of the House against further
debate, yet, if he chooses, he has a right to go on.

[[Page 190]]

but in other respects the principles of this paragraph of
the law of Parliament are in force.

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The practice of the House of Representatives has modified the
principle that the Member who rises first is to be recognized (clause 2
of rule XIV);

sec. xxi.--resolutions.

Sec. 395. Orders and resolutions of the House.

When the
House commands, it is by an ``order.'' But fact, principles, and their
own opinions and purposes, are expressed in the form of resolutions.

A resolution for an allowance of money to the clerks being moved, it
was objected to as not in order, and so ruled by the Chair; but on
appeal to the Senate (i.e., a call for their sense by the President, on
account of doubt in his mind, according to clause 2 of rule XX) the
decision was overruled. Jour., Senate, June 1, 1796. I presume the doubt
was, whether an allowance of money could be made otherwise than by bill.

[[Page 191]]

or joint resolution within
the meaning of clause 5(c) of rule XXI (requiring a three-fifths vote
for approval of such a measure if carrying an increase in a rate of tax
on income) (Speaker Gingrich, May 18, 1995, p. ----).

Sec. 396. Concurrent resolutions of the two Houses.

In the
modern practice concurrent resolutions have been developed as a means of
expressing fact, principles, opinions, and purposes of the two Houses
(II, 1566, 1567). Joint committees are authorized by resolutions of this
form (III, 1998, 1999), and they are used in authorizing correction of
bills agreed to by both Houses (VII, 1042), amendment of enrolled bills
(VII, 1041), amendment of conference reports (VIII, 3308), requests for
return of bills sent to the President (VII, 1090, 1091), authorizing the
printing of certain enrolled bills by hand in the remaining days of a
session (H. Con. Res. 436, Dec. 20, 1982, p. 32875), providing for joint
session to receive message from the President (VIII, 3335, 3336),
authorizing the printing of congressional documents (H. Con. Res. 66,
July 1, 1969, p. 17948); paying a birthday tribute to former President
Truman (H. Con. Res. 216, Apr. 24, 1969, p. 10213); calling for the
humane treatment of prisoners of war in Vietnam (H. Con. Res. 454, Dec.
15, 1969, p. 39037), and fixing time for final adjournment (VIII, 3365).
The Congressional Budget Act of 1974 (P.L. 93-344) provides for the
adoption by both Houses of concurrent resolutions on the budget which
become binding on both Houses with respect to congressional budget
procedures (see Sec. 1007, infra). A concurrent resolution is binding on
neither House until agreed to by both (IV, 3379), and, since not
legislative in nature, is not sent to the President for approval (IV,
3483). A concurrent resolution is not a bill

Sec. 397. Joint resolutions.

Another development of the
modern practice is the joint resolution, which is a bill so far as the
processes of the Congress in relation to it are concerned (IV, 3375;
VII, 1036). With the exception of joint resolutions proposing amendments
to the Constitution (V, 7029), all these resolutions are sent to the
President for approval and have the full force of law. They are used for
what may be called the incidental, unusual, or inferior purposes of
legislating (IV, 3372), as extending the national thanks to individuals
(IV, 3370), the invitation to La Fayette to visit America (V, 7082,
footnote), the welcome to Kossuth (V, 7083), notice to a foreign
government of the abrogation of a treaty (V, 6270), declaration of
intervention in Cuba (V, 6321), correction of an error in an existing
act of legislation (IV, 3519; VII, 1092), enlargement of scope of
inquiries provided by law (VII, 1040), election of managers for National
Soldiers' Homes (V, 7336), special appropriations for minor and
incidental purposes (V, 7319), continuing appropriations (H.J. Res. 790,
P.L. 91-33, p. 17015); establishing the date for convening of Congress
(H.J. Res. 1041, P.L. 91-182, p. 40982); extending the submission date
under law for transmittal of the Budget and Economic Report to Congress
by the President (H.J. Res. 635, P.L. 97-469, p. 32936); and extending
the termination date for a law (H.J. Res. 864, P.L. 91-59, p. 22546). At
one time they were used for purposes of general legislation; but the two
Houses finally concluded that a bill was the proper instrumentality for
this purpose (IV, 3370-3373). A joint resolution has been changed to a
bill by amendment (IV, 3374), but in the later practice it has become
impracticable to do so.

* * * * *

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Where a choice between a concurrent resolution and a joint resolution
is not dictated by law, the House by its votes on consideration of a
measure decides which is the appropriate vehicle (and a point of order
does not lie that a concurrent rather than a joint resolution would be
more appropriate to express the sense of the Congress on an issue) (Mar.
16, 1983, p. 5669).

sec. xxiii.--bills, leave to bring in.

[[Page 192]]

being given, on the question, a committee is appointed to prepare and
bring in the bill. The mover and seconder are always appointed of this
committee, and one or more in addition. Hakew., 132; Scob., 40. It is
to be presented fairly written, without any erasure or interlineation,
or the Speaker may refuse it. Scob., 41; 1 Grey, 82, 84.

Sec. 398. Obsolete provisions as to introduction of
bills.

When a Member desires to bring in a bill on any subject, he states
to the House in general terms the causes for doing it, and concludes by
moving for leave to bring in a bill, entitled, &c. Leave

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This provision is obsolete, clauses 1-4 of rule XXII providing an
entirely different method of introducing bills. The introduction of
bills by leave was gradually dropped by the practice of the House, and
after 1850 the present free system of permitting Members to introduce at
will bills for printing and reference began to develop (IV, 3365).

sec. xxiv.--bills, first reading.

Sec. 399. Obsolete requirements as to first reading of
bills.

When a bill is first presented, the Clerk reads it at the table, and
hands it to the Speaker, who, rising, states to the House the title of
the bill; that this is the first time of reading it; and the question
will be, whether it shall be read a second time? then sitting down to
give an opening for objections. If none be made, he rises again, and
puts the question, whether it shall be read a second time? Hakew., 137,
141. A bill cannot be amended on the first reading, 6 Grey, 286; nor is
it usual for it to be opposed then, but it may be done, and rejected.
D'Ewes, 335, col. 1; 3 Hats., 198.

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[[Page 193]]
This provision is obsolete, the practice under clause 1 of rule XXI
now governing the procedure of the House of Representatives.

sec. xxv.--bills, second reading.

Sec. 400. Obsolete parliamentary law as to second
reading.

The second reading must regularly be on another day. Hakew., 143.
It is done by the Clerk at the table, who then hands it to the Speaker.
The Speaker, rising, states to the House the title of the bill; that
this is the second time of reading it; and that the question will be,
whether it shall be committed, or engrossed and read a third time? But
if the bill came from the other House, as it always comes engrossed, he
states that the question will be, whether it shall be read a third time?
and before he has so reported the state of the bill, no one is to speak
to it. Hakew., 143, 146.

In the Senate of the United States, the President reports the title of
the bill; that this is the second time of reading it; that it is now to
be considered as in a Committee of the Whole; and the question will be,
whether it shall be read a third time? or that it may be referred to a
special committee?

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The provisions of this paragraph are to a large extent obsolete so far
as the House of Representatives is concerned, the practice under clause
1 of rule XXI now governing.

sec. xxvi.--bills, commitment.

[[Page 194]]

also may name a single person, and Clerk is to write him down as of the
committee. But the House have a controlling power over the names and number,
if a question be moved against any one; and may in any case put in and put
out whom they please.

Sec. 401. Parliamentary law (largely obsolete) as to
reference of bills to committees.

If on motion and question it be decided
that the bill shall be committed, it may then be moved to be referred to
Committee of the Whole House, or to a special committee. If the latter,
the Speaker proceeds to name the committee. Any member

This paragraph is to a large extent obsolete under the rules and
practice of the House of Representatives. Bills are referred in the
first instance by the Speaker to standing committees as prescribed by
the rules (rules X and XXII), and references of reported bills to the
proper calendar of the House are also made under direction of the
Speaker (clause 2 of rule XIII). Reference of a matter under
consideration is made by a motion to refer which specifies the committee
and may provide for a select committee of a specified number of persons
(IV, 4402). But such committee is appointed only by the Speaker (clause
6(e) of rule X).

Rule XVII provides that the Speaker may entertain a motion to commit
to a standing or select committee with or without instructions pending
or following the ordering of the previous question.

[[Page 195]]

Sec. 402. Obsolete provisions as to constitution of
committees.

Those who take exceptions to some particulars in the bill are to
be of the committee, but none who speak directly against the body of the
bill; for he that would totally destroy will not amend it, Hakew., 146;
Town., col., 208; D'Ewes, 634, col. 2; Scob., 47; or as is said, 5 Grey,
145, the child is not to be put to a nurse that cares not for it, 6
Grey, 373. It is therefore a constant rule ``that no man is to be
employed in any matter who has declared himself against it.'' And when
any member who is against the bill hears himself named of its committee
he ought to ask to be excused. Thus, March 7, 1806, Mr. Hadley was, on
the question being put, excused from being of a committee, declaring
himself to be against the matter itself. Scob., 46.

This provision is entirely inapplicable in the House of
Representatives, where the standing committees with majority and
minority representation (IV, 4467, 4477, footnote, 4478) consider most
of the bills. And in the infrequent occasions when a select committee is
appointed the minority party is always represented in the membership.

Sec. 403. Delivery of bills to committees.

The Clerk may
deliver the bill to any member of the committee, Town, col. 138; but it
is usual to deliver it to him who is first named.

Following introduction, reference, and numbering, bills are sent to
the Government Printing Office for printing. Printed copies of all bills
are distributed in accordance with law (44 U.S.C. 706) and copies are
made available to the committee to which referred.

Sec. 404. Obsolete provision for ordering a committee to
withdraw and bring back a bill.

In some cases the House has ordered a
committee to withdraw immediately into the committee chamber and act on
and bring back the bill, sitting the House. Scob., 48. * * *

This procedure is rarely followed in the House of Representatives,
since the order of business does not provide for such a motion unless it
is offered by unanimous consent.

Sec. 405. Commital with directions to report
forthwith.

When a bill is under consideration, however, the House may on
motion commit it with instructions to report ``forthwith'' with certain
specified amendment (V, 5548, 5549), in which case the chairman of the
committee reports at once without awaiting action of the committee (V,
5545-5547; VIII, 2730, 2732) and the bill is in order for immediate
consideration (V, 5550; VIII, 2735).

[[Page 196]]

Sec. 406. Discharge of a committee.

The motion to discharge
a committee from the consideration of an ordinary legislative
proposition is not privileged under the rules (IV, 3533, 4693; VIII,
2316), but where a matter involves a question of privilege (III, 2585,
2709; VIII, 2316), or is privileged under the rule relating to
resolutions of inquiry (clause 5 of rule XXII; III, 1871; IV, 4695) or
is provided privilege under statutes enacted under the rulemaking power
of the House (see Sec. 1013, infra), the motion to discharge is
admitted. The motion is not debatable (III, 1868; IV, 4695), except a
motion to discharge under clause 3 of rule XXVII and (in modern
practice) a motion to discharge a committee from the further
consideration of a vetoed bill (Mar. 7, 1990, p. ----; Sept. 19, 1996,
p. ----). The motion may be laid on the table (V, 5407; VI, 415), but
the question of consideration may not be demanded against it (V, 4977).

Sec. 407. Meetings and action of committees.

* * * A
committee meet when and where they please, if the House has not ordered
time and place for them, 6 Grey, 370; but they can only act when
together, and not by separate consultation and consent--nothing being
the report of the committee but what has been agreed to in committee
actually assembled.

For discussion of committee procedure generally, see Sec. 704a, infra.
In the House of Representatives the standing committees usually meet in
their committee rooms, but there is no rule requiring them to meet
there, and in the absence of direction by the House, committees
designate the time and place of their meetings (VIII, 2214).

Standing committees fix regular weekly, biweekly, or monthly meeting
days for the transaction of business (not less infrequently than
monthly, under clause 2(b) of rule XI), and additional meetings may be
called by the chairman as he may deem necessary or by a majority of the
committee in certain circumstances (clause 2(c) of rule XI). Where a
committee has a fixed date of meeting, a quorum of the committee may
convene on such date without call of the Chairman and transact business
regardless of his absence (VIII, 2214). A committee meeting being
adjourned by the chairman for lack of a quorum, a majority of the
members of the committee may not, without the consent of the chairman,
call a meeting of the committee on the same day (VIII, 2213).

[[Page 197]]

matter to a vote, is sufficient authority for the chairman to call up a
bill on Calendar Wednesday (Speaker Rayburn, Feb. 22, 1950, p. 2161). No
measure or recommendation shall be reported from any committee unless a
majority of the committee were actually present (clause 2(l)(2)(A) of
rule XI). A report is sometimes authorized by less than a majority of
the whole committee, some members being silent or absent (II, 985, 986).
In a rare instance a majority of a committee agreed to a report, but
disagreed on the facts necessary to sustain the report (I, 819). In the
situation where a committee finds itself unable to agree to a positive
recommendation, being equally divided, it may report the fact to the
House (I, 347; IV, 4665, 4666) and may include evidence, majority and
minority views (III, 2403), minority views alone (II, 945), or
propositions representing the opposing contentions (III, 2497; IV,
4664). It is not essential that the report of a committee be signed (II,
1274; VIII, 2229), but the minority or other separate views are signed
by those concurring in them (IV, 4671; VIII, 2229). In a case where a
majority of a committee signed a report it was held valid, although a
necessary one of that majority did not concur in all the statements (IV,
4587). If a report is actually sustained by the majority of a committee,
it is not impeached by the fact that a lesser number sign it (II, 1091),
or by the fact that later by the action of absentees more than a
majority of the whole committee are found to have signed minority views
(IV, 4585). Objection being made that a report had not been authorized
by a committee and there being doubt as to the validity of the
authorization, the question as to the reception of the report is
submitted to the House (IV, 4588-4591). But where the Speaker is
satisfied of the validity or of the invalidity of the authorization he
may decide the question (IV, 4584, 4592, 4593; VIII, 2211, 2212, 2222-
2224). And in a case wherein it was shown that a majority of a committee
had met and authorized a report he did not heed the fact that the
meeting was not regularly called (IV, 4594). A bill improperly reported
is not entitled to its place on the calendar (IV, 3117); but the
validity of a report may not be questioned after the House has voted to
consider it (IV, 4598), or after actual consideration has begun (IV,
4599; VIII, 2223, 2225). Where a question was raised regarding a
Chairman's alteration of a committee amendment, the Speaker indicated
that the proper time to raise a point of order was when the unprivileged
report was called up for consideration (or when before the Committee on
Rules for a special order) and not when filed in the hopper (May 16,
1989, p. 9356).

<> A
majority of the committee constitutes a quorum for business. Elsynge's
Method of Passing Bills, 11.

Sec. 408. Authorization of reports of committees.

The House
has adhered to the principle that a report must be authorized by a
committee acting together, and a paper signed by a majority of the
committee acting separately has been ruled out (IV, 4584; VIII, 2210-
2212, 2220; see also clause 2(l)(2)(A) of rule XI). For each rollcall
vote in committee on amending or reporting a public measure or matter,
the report to the House must disclose the total number of votes cast for
and against and the names of those voting for and against (clause
2(l)(2)(B) of rule XI). It is the duty of the chairman of each committee
to report or cause to be reported promptly any measure approved by his
committee and to take or cause to be taken necessary steps to bring the
matter to a vote (clause 2(l)(1)(A) of rule XI); and a report must be
filed within seven days following the submission of a written request,
signed by a majority of the committee members, directing such filing
(clause 2(l)(1)(B) of rule XI). A motion in committee directing its
Chairman to use all parliamentary means to bring a bill before the House
was held to include the right to call up the bill on Calendar Wednesday
(VII, 2217). Clause 2(l)(1)(A) of rule XI, requiring the chairman of
each committee to report or cause to be reported promptly measures
approved by his committee and to take such necessary steps to bring the

[[Page 198]]

and except for the Committees on Appropriations, the Budget, and Ways
and Means, a committee may fix the number of members to constitute a
quorum, which shall be not less than one-third of its members, for
taking certain other actions (clause 2(h) of rule XI). However, no
measure or recommendations shall be reported from any committee or
subcommittee unless a majority of the committee were actually present
(clauses 2(h) and 2(l) of rule XI); nor shall a committee or
subcommittee vote without a majority present to authorize a subpoena
under clause 2(m) of rule XI or to close a meeting or hearing under
clauses 2(a) and 2(g) of rule XI (except as provided under clause
2(g)(2)(A) with respect to certain hearing procedures).
Each Committee may fix the number of its members, but not less than
two, to constitute a quorum for taking testimony and receiving evidence;

A quorum of a committee may transact business and a majority of the
quorum, even though it be a minority of the whole committee, may
authorize a report (IV, 4586), but an actual quorum of a committee must
be present to make action taken valid (VIII, 2212, 2222), unless the
House authorizes less than a quorum to act (IV, 4553, 4554). A quorum of
a committee must be present when alleged perjurious testimony is given
in order to support a charge of perjury (Christoffel v. United States,
388 U.S. 84). The absence of a quorum of a committee at the time a
witness willfully fails to produce subpoenaed documents is not a valid
defense in a prosecution for contempt where the witness failed to raise
that objection before the committee (United States v. Bryan, 339 U.S.
323; United States v. Fleischman, 339 U.S. 349).

Sec. 410. Presence of a Member of the House in a select
committee.

Any Member of the House may be present at any select committee,
but cannot vote, and must give place to all of the committee, and sit
below them. Elsynge, 12; Scob., 49.

[[Page 199]]

This phrase must be read in conjunction with the power of a committee
of the House to conduct proceedings in executive session (see clauses
2(g)(1) and (2) of rule XI). Thus, a committee may close its doors in
executive session meetings to persons not invited or required, including
Members of the House who are not members of the committee (III, 1694;
IV, 4558-4565; see discussion at IV, 4540). In the 95th Congress, clause
2(g)(2) of rule XI was amended to prohibit the exclusion of noncommittee
members from nonparticipatory attendance in any closed hearing, except
in the Committee on Standards of Official Conduct, unless the House by
majority vote authorizes a committee or subcommittee to close its
hearings to noncommittee members (H. Res. 5, 95th Cong., Jan. 4, 1977,
pp. 53-70).

Sec. 411. Power of committees over the body and title of a
bill.

The committee have full power over the bill or other paper committed
to them, except that they cannot change the title or subject. 8 Grey,
228.

In the House of Representatives committees may recommend amendments to
the body of a bill or to the title but may not otherwise change the
text.

[[Page 200]]

stand, of course, unless altered or struck out by a vote. Even if they
are opposed to the whole paper, and think it cannot be made good by
amendments, they cannot reject it, but must report it back to the House
without amendments, and there make their opposition.

Sec. 412. Parliamentary law governing consideration of
bills, etc., in committees.

The paper before a committee, whether select
or of the whole, may be a bill, resolutions, draught of an address, &c.,
and it may either originate with them or be referred to them. In every
case the whole paper is read first by the Clerk, and then by the
chairman, by paragraphs, Scob., 49, pausing at the end of each
paragraph, and putting questions for amending, if proposed. In the case
of resolutions or distinct subjects, originating with themselves, a
question is put on each separately, as amended or unamended, and no
final question on the whole, 3 Hats., 276; but if they relate to the
same subject, a question is put on the whole. If it be a bill, draught
of an address, or other paper originating with them, they proceed by
paragraphs, putting questions for amending, either by insertion or
striking out, if proposed; but no question on agreeing to the paragraphs
separately; this is reserved to the close, when a question is put on the
whole, for agreeing to it as amended or unamended. But if it be a paper
referred to them, they proceed to put questions of amendment, if
proposed, but no final question on the whole; because all parts of the
paper, having been adopted by the House,

In the House of Representatives it has generally been held that a
select or standing committee may not report a bill unless the subject
matter has been referred to it (IV, 4355-4360), except that under the
modern practice reports filed from the floor as privileged pursuant to
clause 4(a) of rule XI have been permitted on bills and resolutions
originating in certain committees and not formally referred thereto.
Pursuant to this paragraph some committees have originated drafts of
bills for consideration and amendment prior to the introduction and
referral of a numbered bill to committee(s). In the older practice the
Committee of the Whole originated resolutions and bills (IV, 4705); but
the later development of the rules governing the order of business would
prevent the offering of a motion to go into Committee of the Whole for
such a purpose, except by unanimous consent.

Sec. 413. Order of amendment bills in the House.

The natural
order in considering and amending any paper is, to begin at the
beginning, and proceed through it by paragraphs; and this order is so
strictly adhered to in Parliament, that when a latter part has been
amended, you cannot recur back and make an alteration in a former part.
2 Hats., 90. In numerous assemblies this restraint is doubtless
important. But in the Senate of the United States, though in the main we
consider and amend the paragraphs in their natural order, yet
recurrences are indulged; and they seem, on the whole, in that small
body, to produce advantages overweighing their inconveniences.

[[Page 201]]

reading (IV, 3393). Amendments may be offered to any part of
the bill without proceeding consecutively section by section or
paragraph by paragraph (IV, 3392). In Committee of the Whole, bills are
read section by section or paragraph by paragraph and after a section or
paragraph has been passed it is no longer subject to amendment (clause 5
of rule XXIII; Sec. 872, infra; July 12, 1961, p. 12405).

In the House of Representatives, amendments to House bills are made
before the previous question is ordered, pending the engrossment and
third reading (IV, 3392; V, 5781; VII, 1051), and to Senate bills before
the third

Sec. 414. Preamble amended after the body of the bill or
resolution has been considered.

To this natural order of beginning at the
beginning there is a single exception found in parliamentary usage. When
a bill is taken up in committee, or on its second reading, they postpone
the preamble till the other parts of the bill are gone through. The
reason is, that on consideration of the body of the bill such
alterations may therein be made as may also occasion the alteration of
the preamble. Scob., 50; 7 Grey, 431.

[[Page 202]]

the one offered be consistent with the resolution
is for the House to determine. The mover, indeed, has intimated that he
shall offer a subsequent proposition for the body of the resolution; but
the House is not in possession of it; it remains in his breast, and may
be withheld. The rules of the House can only operate on what is before
them. The practice of the Senate, too, allows recurrences backward and
forward for the purpose of amendment, not permitting amendments in a
subsequent to preclude those in a prior part, or e converso.

On this head the following case occurred in the Senate, March 6, 1800:
A resolution which had no preamble having been already amended by the
House so that a few words only of the original remained in it, a motion
was made to prefix a preamble, which having an aspect very different
from the resolution, the mover intimated that he should afterwards
propose a correspondent amendment in the body of the resolution. It was
objected that a preamble could not be taken up till the body of the
resolution is done with; but the preamble was received, because we are
in fact through the body of the resolution; we have amended that as far
as amendments have been offered, and, indeed, till little of the
original is left. It is the proper time, therefore, to consider a
preamble; and whether

In the practice of the House of Representatives the preamble of a
joint resolution is amended after the engrossment and before the third
reading (IV, 3414; V, 5469, 5470; VII, 1064), but the preamble is not
voted on separately in the later practice even if amended, since the
question on passage covers the preamble as well as the resolving clause
(Oct. 29, 1975, p. 34283). After an amendment to the preamble has been
considered it is too late to propose amendments to the text of the bill
(VII, 1065). In Committee of the Whole, amendments to the preamble of a
joint resolution are considered following disposition of any amendments
to the resolving clause (Mar. 9, 1967, pp. 6032-34; Mar. 22, 1967, pp.
7679-83; May 25, 1993, p. ----). On the passage of a joint resolution a
separate vote may not be demanded on the preamble (V, 6147, 6148); but
where a simple resolution of the House has a preamble, the preamble may
be laid on the table without affecting the status of the accompanying
resolution (V, 5430). Amendments to the preamble of a concurrent or
simple resolution are considered in the House following the adoption of
the resolution (Dec. 4, 1973, p. 39337; June 8, 1970, pp. 18668-71). The
House considers an amendment reported from the Committee of the Whole to
the preamble of a Senate joint resolution following disposition of
amendment to the text and pending third reading (May 25, 1993, p. ----).

[[Page 203]]

Hats., 289, 292; Scob., 53; 2 Hats., 290; 8 Scob., 50.

Sec. 415. Directions of a committee for making of its
report.

When the committee is through the whole, a Member moves that the
committee may rise, and the chairman report the paper to the House, with
or without amendments, as the case may be. 2

Clause 2(l)(1)(A) of rule XI provides that it shall be the duty of the
Chairman of each committee to report or cause to be reported promptly
any measure approved by his committee and to take or cause to be taken
necessary steps to bring the matter to a vote; and in any event, the
report of a committee must be filed within seven calendar days
(exclusive of days when the House is not in session) after a majority of
the committee has invoked the procedures of clause 2(l)(1)(B) of rule
XI. In the House of Representatives, a committee may order its report to
be made by the chairman (IV, 4669), or by any other member of the
committee (IV, 4526), even though he be a member of the minority party
(IV, 4672, 4673; VIII, 2314). A committee report may be filed by a
Delegate (July 1, 1958, p. 12870). Only the chairman makes a report for
the Committee of the Whole (V, 6987).

Sec. 416. As to reconsideration of a vote in
committee.

When a vote is once passed in a committee it cannot be altered
but by the House, their votes being binding on themselves. 1607, June 4.

This provision of the parliamentary law has been held to prevent the
use of the motion to reconsider in Committee of the Whole (IV, 4716-
4718; VIII, 2324, 2325) but it is in order in the House as in the
Committee of the Whole (VIII, 2793). The early practice seems to have
inclined against the use of the motion in a standing or select committee
(IV, 4570, 4596), but there is a precedent which authorized the use of
the motion (IV, 4570, 4596), and on June 1, 1922, the Committee on Rules
rescinded previous action taken by the committee authorizing a report.
In the later practice the motion to reconsider is in order in committee
so long as the measure remains in possession of the committee and the
motion is not prevented by subsequent actions of the committee on the
measure, and may be entered on the same day as action to be reconsidered
or on the next day on which the committee convenes with a quorum present
to consider the same class of business (VIII, 2213), but a session
adjourned without having secured a quorum is a dies non and not to be
counted in determining the admissibility of a motion to reconsider
(VIII, 2213). This provision does not prevent a committee from reporting
a bill similar to one previously reported by such committee (VIII,
2311).

[[Page 204]]

to be inserted or omitted, Scob., 50, and where, by
references to page, line, and word of the bill. Scob., 50.

Sec. 417. Method of noting amendments to a bill in
committee.

The committee may not erase, interline, or blot the bill
itself; but must, in a paper by itself set down the amendments, stating
the words which are

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This practice is still in force as to Senate bills of which the
engrossed copies cannot be in any way interlined or altered by House
committees. Original copies of House bills are not referred to
committees but are maintained indefinitely by the Clerk. Both House and
Senate bills are now printed as referred, and committees may thus report
either with proposed amendments. In the ``official papers'' (signed
engrossed copies), the engrossed House amendments to a Senate bill would
still be shown as a separate message attached to the Senate engrossed
bill when returned to the Senate.

sec. xxvii.--report of committee.

[[Page 205]]

venience, shall take up the report. Scob., 52; Hakew., 148.

Sec. 418. Parliamentary method of submitting
reports.

The chairman of the committee, standing in his place, informs the
House that the committee to whom was referred such a bill, have,
according to order, had the same under consideration, and have directed
him to report the same without any amendment, or with sundry amendments
(as the case may be), which he is ready to do when the House pleases to
receive it. And he or any other may move that it be now received; but
the cry of ``now, now,'' from the House, generally dispenses with the
formality of a motion and question. He then reads the amendments, with
the coherence in the bill, and opens the alterations and the reasons of
the committee for such amendments, until he has gone through the whole.
He then delivers it at the Clerk's table, where the amendments reported
are read by the Clerk without the coherence; whereupon the papers lie
upon the table till the House, at its con-

This provision is to a large extent obsolete so far as the practice of
the House of Representatives is concerned. Most of the reports of
committees are made by filing them with the Clerk without reading
(clause 2 of rule XIII), and only the reports of committees having leave
to report at any time are made by the chairman or other member of the
committee from the floor (clause 4(a) of rule XI). Committee reports
must be submitted while the House is in session, and this requirement
may be waived by unanimous consent only, and not by motion (Dec. 17,
1982, p. 31951). All reports privileged under clause 4 of rule XI at one
time could be called up for consideration immediately after being filed,
but since January 3, 1975 (H. Res. 988, 93d Cong., Oct. 8, 1974, p.
34406), such reports--with two exceptions--are subject to the
requirement of clause 2(l)(6) of rule XI and cannot be considered in the
House until the third calendar day (excluding Saturdays, Sundays, and
legal holidays) on which they are available to Members. The exceptions
from the three-day rule, in addition to the exceptions stated in the
rule for declarations of war and actions on certain executive
determinations, are certain reports from the Committee on Rules (see
clause 2(l)(6) of rule XI) and primary expense resolutions reported from
the Committee on House Oversight (see clause 5 of rule XI). Reports not
filed as privileged under clause 4(a) of rule XI are subject to the
three-day rule unless specifically exempted therefrom (in clause 2(l)(6)
of rule XI) or unless privileged under rule IX. It has been held, for
example, that a privileged report involving the privileges of the House
under rule IX (such as a report from a committee on the contemptuous
conduct of a witness before the committee) would not be subject to the
three-day rule (Speaker Albert, July 13, 1971, pp. 24720-23). The
general rule (clause 1 of rule XIII) is that reports shall be placed on
the calendars of the House, there to await action under the rules for
the order of business (rule XXIV).

Sec. 419. Reports; dissolution and revival of select
committees.

The report being made, the committee is dissolved and can act
no more without a new power. Scob. 51. But it may be revived by a vote,
and the same matter recommitted to them. 4 Grey, 361.

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[[Page 206]]

This provision does not apply now to the Committees of the Whole or to
the standing committees. It does apply to select committees, which
expire when they report finally, but may be revived by the action of the
House in referring in open House a new matter (IV, 4404, 4405). The
provision does not preclude a standing committee from reporting a bill
similar to one previously reported by such committee (VIII, 2311).

sec. xxviii.--bill, recommitment.

Sec. 420. Recommittal of a bill to a committee.

After a bill
has been committed and reported, it ought not, in any ordinary course,
to be recommitted; but in cases of importance, and for special reasons,
it is sometimes recommitted, and usually to the same committee. Hakew,
151. If a report be recommitted before agreed to in the House, what has
passed in committee is of no validity; the whole question is again
before the committee, and a new resolution must be again moved, as if
nothing had passed. 3 Hats., 131--note.

In Senate, January, 1800, the salvage bill was recommitted three times
after the commitment.

Where a matter is recommitted with instructions the committee must
confine itself within the instructions (IV, 4404), and if the
instructions relate to a certain portion only of a bill, other portions
may not be reviewed (V, 5526). When a report has been disposed of
adversely a motion to recommit it is not in order (V, 5559). Bills are
sometimes recommitted to the Committee of the Whole as the indirect
result of the action of the House (clause 7 of rule XXIII; IV, 4784) or
directly on motion either with or without instructions (V, 5552, 5553).

Sec. 421. Division of matters for reference to
committees.

A particular clause of a bill may be committed without the
whole bill, 3 Hats., 131; or so much of a paper to one and so much to
another committee.

[[Page 207]]

in order to assure that to the maximum extent feasible each committee
with subject matter jurisdiction over provisions in that measure may
consider and report to the House with respect thereto. Under former
precedents a bill, resolution, or communication could not be divided
for reference (IV, 4372, 4376).

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In the usage of the House before the rules provided that petitions
should be filed with the Clerk instead of being referred from the floor,
it was the practice to refer a portion of a petition to one committee
and the remainder to another when the subject matter called for such
division (IV, 3359). Clause 5 of rule X now permits the Speaker to refer
bills, and resolutions, with or without time limitations, either (1)
simultaneously to two or more committees for concurrent consideration,
while indicating one committee of primary jurisdiction, (2) sequentially
to appropriate committees after the report of the committee or
committees initially considering the matter, (3) to divide the matter
for referral, (4) to appoint an ad hoc committee with the approval of
the House, or (5) to make other appropriate provisions,

sec. xxix.--bill, reports taken up.

Sec. 422. Consideration and action on reports.

When the
report of a paper originating with a committee is taken up by the House,
they proceed exactly as in committee. Here, as in committee, when the
paragraphs have, on distinct questions, been agreed to seriatim, 5 Grey,
366; 6 Grey, 368; 8 Grey, 47, 104, 360; 1 Torbuck's Deb., 125; 3 Hats.,
348, no question needs be put on the whole report. 5 Grey, 381.

In the House of Representatives committees usually report bills, joint
resolutions, concurrent resolutions, or simple resolutions. These come
before the House for action while the written reports accompanying them,
which are always printed, do not (IV, 4674), and even the reading of the
reports is in order only in the time of debate (V, 5292). The Chair will
not recognize a Member during debate on a bill in the House or in the
Committee of the Whole for unanimous consent to amend the accompanying
committee report in a specified manner, as the House should not change
the substance of a committee report upon which it is not called to vote
(Apr. 2, 1985, p. 7209; Nov. 7, 1989, p. 27762). In rare instances,
however, committees submit merely written reports without propositions
for action. Such reports being before the House may be debated before
any specific motion has been made (V, 4987, 4988), and are in such case
read to the House (IV, 4663) and after being considered the question is
taken on agreeing. In such cases the report appears in full on the
Journal (II, 1364; IV, 4675; V, 7177). When reports are acted on in this
way it has not been the practice of the House to consider them by
paragraphs, but the question has been put on the whole report (II,
1364).

[[Page 208]]

jected, before any other amendment be admitted, except it be an amendment
to an amendment. Elsynge's Mem., 53. When through the amendments of the
committee, the Speaker pauses, and gives time for amendments to be
proposed in the House to the body of the bill; as he does also if it has
been reported without amendments; putting no questions but on amendments
proposed; and when through the whole, he puts the question whether the
bill shall be read a third time?

Sec. 423. Action by the House on amendments recommended by
committees.

On taking up a bill reported with amendments the amendments
only are read by the Clerk. The Speaker then reads the first, and puts
it to the question, and so on till the whole are adopted or re-

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[Pages 208-212]
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The procedure outlined by this provision of the parliamentary law
applies to bills when reported from the Committee of the Whole; but in
practice it is usual to vote on the amendments in gross. But any Member
may demand a separate vote (see Sec. 337, supra). The principle that the
committee amendments should be voted on before amendments proposed by
individual Members is recognized (IV, 4872-4876; V, 5773; VIII, 2862,
2863), except when it is proposed to amend a committee amendment. The
Clerk reads the amendments and the Speaker does not again read them.
Frequently the House orders the previous question on the committee
amendments and the bill to final passage, thus preventing further
amendment. When a bill is of such nature that it does not go to
Committee of the Whole, it comes before the House from the House
Calendar, on which it has been placed on being reported from the
standing or select committee. On being taken from the House Calendar the
bill is read through and then the amendments proposed by the committee
are read.

sec. xxx.--quasi-committee.

Sec. 424. Procedure ``in the House as in Committee of the
Whole.''

If on motion and question the bill be not committed, or if no
proposition for commitment be made, then the proceedings in the Senate
of the United States and in Parliament are totally different. The former
shall be first stated.

[[Page 209]]

ing no question but on amendments. When through the whole, they
consider the quasi-committee as risen, the House resumed without any
motion, question, or resolution to that effect, and the President
reports that ``the House, acting as in a Committee of the Whole, have
had under their consideration the bill entitled, &c., and have made
sundry amendments, which he will now report to the House.'' The bill is
then before them, as it would have been if reported from a committee,
and the questions are regularly to be put again on every amendment;
which being gone through, the President pauses to give time to the House
to propose amendments to the body of the bill, and, when through, puts
the question whether it shall be read a third time?

The proceeding of the Senate as in a Committee of the Whole, or in
quasi-committee, is precisely as in a real Committee of the Whole,
tak-

In the House of Representatives procedure ``in the House as in
Committee of the Whole'' is by unanimous consent only, as the order of
business gives no place for a motion that business be considered in this
manner (IV, 4923). Where the House grants unanimous consent for the
immediate consideration of a bill on the Union Calendar, or which would
belong on the Union Calendar if reported, the bill is considered in the
House as in the Committee of the Whole (Apr. 6, 1966, p. 7749; Aug. 3,
1970, p. 26918; Procedure, ch. 22, sec. 1.3, and ch. 29, sec. 21). The
Committee on Rules may report a resolution providing a special order for
consideration of a measure in the House as in Committee of the Whole
(Dec. 18, 1974, p. 40858). In the modern practice of the House an order
for this procedure means merely that the bill will be considered as
having been read for amendment and will be open for amendment and debate
under the five-minute rule (Aug. 10, 1970, p. 28050; clause 5 of rule
XXIII), without general debate (IV, 4924, 4925; VI, 639; VIII, 2431,
2432). The Speaker remains in the chair and, when the previous question
is moved, makes no report but puts the question on ordering the previous
question and then on engrossment and third reading and on passage.

[[Page 210]]

For further description of the procedures applicable to the House as
in the Committee of the Whole, and the application of those procedures
to committees of the House of Representatives, see Sec. 427, infra.

Sec. 425. Motion to refer admitted ``in the House as in
Committee of the Whole.''

After progress in amending the bill in quasi-
committee, a motion may be made to refer it to a special committee. If
the motion prevails, it is equivalent in effect to the several votes,
that the committee rise, the House resume itself, discharge the
Committee of the Whole, and refer the bill to a special committee. In
that case, the amendments already made fall. But if the motion fails,
the quasi-committee stands in status quo.-

[[Page 211]]

proceed to punish. The first and second of these
peculiarities attach to the quasi-committee of the Senate, as every
day's practice proves, and it seems to be the only ones to which the
XXVIIIth rule meant to subject them; for it continues to be a House,
and, therefore, though it acts in some respects as a committee, in
others it preserves its character as a House. Thus (3) it is in the
daily habit of referring its business to a special committee. 4. It
admits of the previous question. If it did not, it would have no means
of preventing an improper discussion; not being able, as a committee is,
to avoid it by returning into the House, for the moment it would resume
the same subject there, the XXVIIIth rule declares it again a quasi-
committee. 5. It would doubtless exercise its powers as a House on any
breach of order. 6. It takes a question by yea and nay, as the House
does. 7. It receives messages from the President and the other House. 8.
In the midst of a debate it receives a motion to adjourn, and adjourns
as a House, not as a committee.

Sec. 426. Motions and procedure in quasicommittee in
Jefferson's time.

How far does this XXVIIIth rule [of the Senate] subject
the House, when in quasi-committee, to the laws which regulate the
proceedings of Committees of the Whole? The particulars in which these
differ from proceedings in the House are the following: 1. In a
committee every member may speak as often as he pleases. 2. The votes of
a committee may be rejected or altered when reported to the House. 3. A
committee, even of the whole, cannot refer any matter to another
committee. 4. In a committee no previous question can be taken; the only
means to avoid an improper discussion is to move that the committee
rise; and if it be apprehended that the same discussion will be
attempted on returning into committee, the House can discharge them, and
proceed itself on the business, keeping down the improper discussion by
the previous question. 5. A committee cannot punish a breach of order in
the House or in the gallery. 9 Grey, 113. It can only rise and report it
to the House, who may

[[Page 212]]

read and open for amendment at any point (Aug. 10, 1970, p. 28050), and
a motion is in order in the House as in Committee of the Whole to close
debate on the bill or on an amendment (June 26, 1973, pp. 21314-15). An
amendment may be withdrawn at any time before action has been had on it
(IV, 4935; June 26, 1973, p. 21305). An amendment in the nature of a
substitute is in order after perfecting amendments have been considered
(IV, 4933, 4934; V, 5788). The title also is amended after the bill has
been considered (IV, 3416). A quorum of the House (and not of the
Committee of the Whole) is required in the House as in the Committee of
the Whole (VI, 639).

Sec. 427. Motions and procedure ``in the House as in
Committee of the Whole.''

In the modern practice of the House of
Representatives the rule of Jefferson's Manual is followed to the extent
that the House, while acting ``in the House as in Committee of the
Whole'' may deal with disorder, take the yeas and nays, adjourn, refer
to a committee even though the reading by sections may not have begun
(IV, 4931, 4932), admit the motion to reconsider (VIII, 2793), receive
messages (IV, 4923), and use the previous question (VI, 369; Procedure,
ch. 23, sec. 6.3) (which differs from the previous question of
Jefferson's time). The previous question may not be moved on a single
section of a bill (IV, 4930), but it may be demanded on the bill while
Members yet desire to offer amendments (IV, 4926-4929; VI, 639).
Formerly a motion to close debate on the pending section of a bill being
read by section for amendment in the House as in the Committee of the
Whole was in order (IV, 4935), but under current practice a bill
considered in the House as in Committee of the Whole is considered as

[House Rules Manual -- House Document No. 104-272]
[From the U.S. Government Printing Office Online Database]
[Pages 212-214]
[DOCID:hrmanual-37]

The procedures applicable in the House as in the Committee of the
Whole generally apply to proceedings in committees of the House of
Representatives, except that a measure considered in committee must be
read (by section) for amendment (see Sec. 412, supra). Therefore, in
committee a motion to limit debate under the five-minute rule must be
confined to the portion of the measure then pending. Moreover, although
the previous question may be moved on any pending amendment, it may be
moved on the measure, itself, only when the entire measure has been read
for amendment (or considered as read by unanimous consent).

sec. xxxi.--bill, second reading in the house.

Sec. 428. Manner of reading a bill the second
time.

In Parliament, after the bill has been read a second time, if on
the motion and question it be not committed, or if no proposition for
commitment be made, the speaker reads it by paragraphs, pausing between
each, but putting no question but on amendments proposed; but when
through the whole, he puts the question whether it shall be read a third
time, if it came from the other house, or, if originating with
themselves, whether it shall be engrossed and read a third time. The
speaker reads sitting, but rises to put questions. The clerk stands
while he reads.

[[Page 213]]

come the practice not to engross a bill till it has passed--an irregular and
dangerous practice, because in this way the paper which passes the
Senate is not that which goes to the other House, and that which goes to
the other House as the act of the Senate has never been seen in the
Senate. In reducing numerous, difficult, and illegible amendments into
the text the Secretary may, with the most innocent intentions, commit
errors which can never again be corrected.

But the Senate of the United States is so much in the habit of making
many and material amendments at the third reading that it has be-

In the House of Representatives the Clerk and not the Speaker or
Chairman of the Committee of the Whole reads bills on second reading.
After the second reading, which is in full, the bill is open to
amendment. Clause 1 of rule XXI, as explained in Sec. 831, infra,
governs first and second readings of bills in the House and in Committee
of the Whole.

[[Page 214]]

doubtful. In this stage, therefore, is the main trial of strength between
its friends and opponents, and it behooves everyone to make up his mind
decisively for this question, or he loses the main battle; and accident
and management may, and often do, prevent a successful rallying on the
next and last question, whether it shall pass.

Sec. 429. Test of strength on engrossment after
amendment.

The bill being now as perfect as its friends can make it, this
is the proper stage for those fundamentally opposed to make their first
attack. All attempts at earlier periods are with disjointed efforts,
because many who do not expect to be in favor of the bill ultimately,
are willing to let it go on to its perfect state, to take time to
examine it themselves and to hear what can be said for it, knowing that
after all they will have sufficient opportunities of giving it their
veto. Its two last stages, therefore, are reserved for this--that is to
say, on the question whether it shall be engrossed and read a third
time, and, lastly, whether it shall pass. The first of these is usually
the most interesting contest, because then the whole subject is new and
engaging, and the minds of the Members having not yet been declared by
any trying vote the issue is the more

<>
When the bill is engrossed the title is to be indorsed on the back, and
not within the bill. Hakew, 250.

Sec. 430. Test of strength on a bill before amending.

In the
House of Representatives there are two other means of testing strength--
one by raising the question of consideration when the bill first comes
up (clause 3 of rule XVI), and the other by moving to strike out the
enacting words when it is first open to amendment (clause 7 of rule
XXIII). By these methods an adverse opinion may be expressed without
permitting the bill to consume the time of the House.

[House Rules Manual -- House Document No. 104-272]
[From the U.S. Government Printing Office Online Database]
[Pages 214-216]
[DOCID:hrmanual-38]

In the practice of the House of Representatives and the Senate the
title appears in its proper place in the engrossed bill, and also is
endorsed, with the number, on the back.

sec. xxxii.--reading papers.

[[Page 215]]

much information as possible on every question on which he is to vote,
that when he desires the reading, if it be seen that it is really for
information and not for delay, the Speaker directs it to be read without
putting a question, if no one objects; but if objected to, a question
must be put. 2 Hats., 117, 118.

Sec. 432. Parliamentary law as to the reading of
papers.

Where papers are laid before the House or referred to a committee
every Member has a right to have them once read at the table before he
can be compelled to vote on them; but it is a great though common error
to suppose that he has a right, toties quoties, to have acts, journals,
accounts, or papers on the table read independently of the will of the
House. The delay and interruption which this might be made to produce
evince the impossibility of the existence of such a right. There is,
indeed, so manifest a propriety of permitting every Member to have as

At one time, the House, by rule XXX, had a provision regarding the
reading a paper other than that on which the House is called to give a
final vote.

Sec. 433. Papers not necessarily to be read on plea of
privilege.

It is equally an error to suppose that any Member has a right,
without a question put, to lay a book or paper on the table, and have it
read, on suggesting that it contains matter infringing on the privileges
of the House. Ib.

Sec. 434. Member not always privileged to read a paper in
his place.

For the same reason a Member has not a right to read a paper in
his place, if it be objected to, without leave of the House. But this
rigor is never exercised but where there is an intentional or gross
abuse of the time and patience of the House.

A Member has not a right even to read his own speech, committed to
writing, without leave. This also is to prevent an abuse of time, and
therefore is not refused but where that is intended. 2 Grey, 227.

[[Page 216]]

bill be read in the Senate, it passed in the negative. Feb. 28, 1793.

Sec. 435. Reports of committees not read except on order or
in debate.

A report of a committee of the Senate on a bill from the
House of Representatives being under consideration: on motion that the
report of the committee of the House of Representatives on the same

In the House of Representatives ordinary reports are read only in time
of debate (V, 5292), and subject to the authority of the House (V,
5293). But in a few cases, where a report does not accompany a bill or
other proposition of action, but presents facts and conclusions, it is
read to the House if acted on (II, 1364; IV, 4663).

Sec. 436. Reading of papers on reference.

Formerly, when
papers were referred to a committee, they used to be first read; but of
late only the titles, unless a Member insists they shall be read, and
then nobody can oppose it. 2 Hats., 117.

[House Rules Manual -- House Document No. 104-272]
[From the U.S. Government Printing Office Online Database]
[Pages 216-230]
[DOCID:hrmanual-39]

Under the rules, petitions, memorials, and communications are referred
through the Clerk's desk, so that there is no opportunity for reading
before reference, though messages from the President are read (clauses 1
and 4 of rule XXII; clause 2 of rule XXIV).

sec. xxxiii.--privileged questions.

Sec. 437. Possession of a bill by the
House.

It is no possession of a bill unless it be delivered to the Clerk to
read, or the Speaker reads the title. Lex. Parl., 274; Elysynge Mem.,
85; Ord. House of Commons, 64.

Sec. 438. Theory as to privileged questions.

It is a general
rule that the question first moved and seconded shall be first put.
Scob., 28, 22; 2 Hats., 81. But this rule gives way to what may be
called privileged questions; and the privileged questions are of
different grades among themselves.

In the House of Representatives, by rule and practice the system of
privileged motions and privileged questions has been highly developed
(rule IX, clause 4 of rule XI, clause 4 of rule XVI, and clause 1 of
rule XXIV).

[[Page 217]]

will, and indefinitely. Yet this motion can
not be received after another question is actually put and while the
House is engaged in voting.

Sec. 439. Precedence of the motion to adjourn.

A motion to
adjourn simply takes place of all others; for otherwise the House might
be kept sitting against its

The rules and practice of the House of Representatives have prescribed
comprehensively the privilege and status of the motion to adjourn
(clause 4 of rule XVI). The motion intervenes between the putting of the
question and the voting, and also between the different methods of
voting, as between a vote by division and a vote by yeas and nays, as
after the yeas and nays are ordered and before the roll call begins (V,
5366). But after the roll call begins it may not be interrupted (V,
6053). Clause 4 of rule XVI was amended in the 93d Congress to provide
that a motion that when the House adjourns on that day it stand
adjourned to meet at a day and time certain is of equal privilege with
the motion to adjourn, if the Speaker in his discretion recognizes for
that purpose (H. Res. 6, pp. 26-27). In the 102d Congress the motion to
authorize the Speaker to declare a recess was given an equal privilege
(H. Res. 5, Jan. 3, 1991, p. 39).

[[Page 218]]

Sec. 440. Obsolete parliamentary law governing
orders of the day.

Orders of the day take place of all other questions, except
for adjournment--that is to say, the question which is the subject of an
order is made a privileged one, pro hac vice. The order is a repeal of
the general rule as to this special case. When any Member moves,
therefore, for the order of the day to be read, no further debate is
permitted on the question which was before the House; for if the debate
might proceed it might continue through the day and defeat the order.
This motion, to entitle it to precedence, must be for the orders
generally, and not for any particular one; and if it be carried on the
question, ``Whether the House will now proceed to the orders of the
day?'' they must be read and proceeded on in the course in which they
stand, 2 Hats., 83; for priority of order gives priority of right, which
can not be taken away but by another special order.

``Orders of the day'' are part of the regular and daily order of
business (IV, 3151). Although a mention of them has survived in clause 1
of rule XXIV, ``orders of the day'' have disappeared from the practice
of the House (IV, 3057) and should not be confused with ``special
orders,'' which are resolutions reported from the Committee on Rules
pursuant to clause 4 of rule XI to provide for consideration of matters
not regularly in order. The term ``special orders'' is also used
separately to describe permissions for Members to address the House at
the conclusion of legislative business.

Sec. 441. Jefferson's discussion of certain privileged
motions.

After these there are other privileged questions, which will
require considerable explanation.

It is proper that every parliamentary assembly should have certain
forms of questions, so adapted as to enable them fitly to dispose of
every proposition which can be made to them. Such are: 1. The previous
question. 2. To postpone indefinitely. 3. To adjourn a question to a
definite day. 4. To lie on the table. 5. To commit. 6. To amend. The
proper occasion for each of these questions should be understood.

The House of Representatives by clause 4 of rule XVI has established
the priority and other conditions of motions of this kind.

Sec. 442. Obsolete use of the previous
question.

1. When a proposition is moved which it is useless or inexpedient now
to express or discuss, the previous question has been introduced for
suppressing for that time the motion and its discussion. 3 Hats., 188,
189.

The previous question of the parliamentary law has been changed by the
House of Representatives into an instrument of entirely different use
(V, 5445; rule XVII).

[[Page 219]]

session, they postpone it indefinitely. 3 Hats., 183. This
quashes the proposition for that session, as an indefinite adjournment
is a dissolution, or the continuance of a suit sine die is a
discontinuance of it.

Sec. 443. The motion to postpone indefinitely.

2. But as the
previous question gets rid of it only for that day, and the same
proposition may recur the next day, if they wish to suppress it for the
whole of that

As already explained, in the House of Representatives the previous
question is no longer used as a method of postponement (V, 5445) but a
means to bring the pending matter to an immediate vote. The House does
use the motion to postpone indefinitely, and in clause 4 of rule XVI and
the practice thereunder, has defined the nature and use of the motion.

Sec. 444. Postponement to a day certain.

3. When a motion is
made which it will be proper to act on, but information is wanted, or
something more pressing claims the present time, the question or debate
is adjourned to such a day within the session as will answer the views
of the House. 2 Hats., 81. And those who have spoken before may not
speak again when the adjourned debate is resumed. 2 Hats., 73.
Sometimes, however, this has been abusively used by adjourning it to a
day beyond the session, to get rid of it altogether as would be done by
an indefinite postponement.

The House of Representatives does not use the motion to adjourn a
debate. But it accomplishes the purpose of such a procedure by the
motion to postpone to a day certain, which applies, not to a debate, but
to the bill or other proposition before the House. Of course, if a bill
which is under debate is postponed, the effect is to postpone the
debate. The conditions and use of the motion are treated under clause 4
of rule XVI.

[[Page 220]]

Sec. 445. Motion to lay on the table.

4. When the House has
something else which claims its present attention, but would be willing
to reserve in their power to take up a proposition whenever it shall
suit them, they order it to lie on their table. It may then be called
for at any time.

This is the use of the motion to lay on the table which is established
in the general parliamentary law, and was followed in the early practice
of the House of Representatives. But by an interesting evolution in the
House the motion has now come to serve an entirely new purpose, being
used for the final, adverse disposition of a matter (clause 4 of rule
XVI; V, 5389). And a matter once laid on the table may be taken
therefrom only by suspension of the rules (V, 6288) or similar process,
unless it be a matter of privilege (V, 5438, 5439) such as bills vetoed
by the President (IV, 3549; V, 5439). A proposition to impeach having
been laid on the table, a similar or identical proposition may be again
brought up (III, 2049; VI, 541).

Sec. 446. Delegation of consideration to
committee.

5. If the proposition will want more amendment and digestion than the
formalities of the House will conveniently admit, they refer it to a
committee.

6. But if the proposition be well digested, and may need but few and
simple amendments, and especially if these be of leading consequence,
they then proceed to consider and amend it themselves.

In the House of Representatives it is a general rule that all business
goes to committees before receiving consideration in the House itself.
Occasionally a question of privilege or a minor matter of business is
presented and considered at once by the House.

Sec. 447. Privileged motions in the Senate and in
Parliament.

The Senate, in their practice, vary from this regular graduation of
forms. Their practice comparatively with that of Parliament stands thus:

for the parliamentary: the senate uses:

Postponement to a day beyond
Postponement indefinite, E the session.

[[Page 221]]

Adjournment, E the session.
Postponement to a day within

Postponement indefinite.
Lying on table, E Lying on the table.

In their eighth rule, therefore, which declares that while a question
is before the Senate no motion shall be received, unless it be for the
previous question, or to postpone, commit, or amend the main question,
the term postponement must be understood according to their broad use of
it, and not in its parliamentary sense. Their rule, then, establishes as
privileged questions the previous question, postponement, commitment,
and amendment.

The House of Representatives governs these motions by clause 4 of rule
XVI.

[[Page 222]]

1. Previous question and postpone

Sec. 448. Obsolete provision as to priority of
privileged motions.

But it may be asked: Have these questions any privilege among
themselves? or are they so equal that the common principle of the
``first moved first put'' takes place among them? This will need
explanation. Their competitions may be as follows:

commit <3-l }>

amend In the first, second, and
2. Postpone and previous question third classes, and the first

commit member of the fourth class,

amend the rule ``first moved first
3. Commit and previous question <3-lput'' takes place.

postpone

amend
4. Amend and previous question

postpone

commit <3-ln }>

<3-ln }>

[[Page 223]]

In the first class, where the previous question is first moved, the
effect is peculiar; for it not only prevents the after motion to
postpone or commit from being put to question before it, but also from
being put after it; for if the previous question be decided
affirmatively, to wit, that the main question shall now be put, it would
of course be against the decision to postpone or commit; and if it be
decided negatively, to wit, that the main question shall not now be put,
this puts the House out of possession of the main question, and
consequently there is nothing before them to postpone or commit. So that
neither voting for nor against the previous question will enable the
advocates for postponing or committing to get at their object. Whether
it may be amended shall be examined hereafter.

While clause 4 of rule XVI now governs the priority of motions, these
provisions of the Manual remain of interest because of the parliamentary
theory they present.

Sec. 449. General principles of priority of
motions.

Second class. If postponement be decided affirmatively, the proposition is
removed from before the House, and consequently there is no ground for
the previous question, commitment or amendment; but if decided
negatively (that it shall not be postponed), the main question may then
be suppressed by the previous question, or may be committed, or amended.

The previous question is used now for bringing a vote on the main
question and not for suppressing it.

The third class is subject to the same observations as the second.

The fourth class. Amendment of the main question first moved, and
afterwards the previous question, the question of amendment shall be
first put.

In present practice of the House the question on the previous question
would be put first, and being decided affirmatively would force a vote
on the amendment and then on the main question.

[[Page 224]]

ment, if the House had it not in their power to
postpone the whole subject.
Amendment and postponement competing, postponement is first put, as
the equivalent proposition to adjourn the main question would be in
Parliament. The reason is that the question for amendment is not
suppressed by postponing or adjourning the main question, but remains
before the House whenever the main question is resumed; and it might be
that the occasion for other urgent business might go by, and be lost by
length of debate on the amend-

Amendment and commitment. The question for committing, though last
moved shall be first put; because, in truth, it facilitates and
befriends the motion to amend. Scobell is express: ``On motion to amend
a bill, anyone may notwithstanding move to commit it, and the question
for commitment shall be first put.'' Scob., 46.

These principles of priority of privileged motions are recognized in
the House of Representatives, and are provided for by clause 4 of rule
XVI.

Sec. 450. Applications of the previous question to
debatable secondary and privileged motions.

We have hitherto considered the
case of two or more of the privileged questions contending for privilege
between themselves, when both are moved on the original or main
question; but now let us suppose one of them to be moved, not on the
original primary question, but on the secondary one, e.g.:

Suppose a motion to postpone, commit, or amend the main question, and
that it be moved to suppress that motion by putting a previous question
on it. This is not allowed, because it would embarrass questions too
much to allow them to be piled on one another several stories high; and
the same result may be had in a more simple way--by deciding against the
postponement, commitment, or amendment. 2. Hats., 81, 2, 3, 4.

[[Page 225]]

an immediate vote, makes obsolete the parliamentary rule. For
as the motions to postpone, commit, and amend, are all debatable, the
modern previous question of course applies to them (clause 1 of rule
XVII).

While the general principle that one secondary or privileged motion
should not be applied to another is generally recognized in the House of
Representatives, yet the entire change in the nature of the previous
question (V, 5445) from a means of postponing a matter to a means of
compelling

Sec. 451. Motion to postpone not applicable to other
secondary motions.

Suppose a motion for the previous question, or commitment or
amendment of the main question, and that it be then moved to postpone
the motion for the previous question, or for commitment or amendment of
the main question. 1. It would be absurd to postpone the previous
question, commitment, or amendment, alone, and thus separate the
appendage from its principal; yet it must be postponed separately from
its original, if at all; because the eighth rule of the Senate says that
when a main question is before the House no motion shall be received but
to commit, amend, or pre-question the original question, which is the
parliamentary doctrine also. Therefore the motion to postpone the
secondary motion for the previous question, or for committing or
amending, can not be received. 2. This is a piling of questions one on
another; which, to avoid embarrassment, is not allowed. 3. The same
result may be had more simply by voting against the previous question,
commitment, or amendment.

Suppose a commitment moved of a motion for the previous question, or
to postpone or amend. The first, second, and third reasons, before
stated, all hold against this.

[[Page 226]]

The principles of this paragraph are in harmony with the practice of
the House of Representatives, which provides further that a motion to
suspend the rules may not be postponed (V, 5322).

Sec. 452. The motion to amend not applicable to the
previous question.

Suppose an amendment moved to a motion for the previous
question. Answer: The previous question can not be amended.
Parliamentary usage, as well as the ninth rule of the Senate, has fixed
its form to be, ``Shall the main question be now put?''--i.e., at this
instant; and as the present instant is but one, it can admit of no
modification. To change it to to-morrow, or any other moment, is without
example and without utility. * * *

Although the nature of the previous question has entirely changed, yet
the principle of the parliamentary law applies to the new form.

Sec. 453. Motion to amend applicable to
motions to postpone or refer.

* * * But suppose a motion to amend a motion for
postponement, as to one day instead of another, or to a special instead
of an indefinite time. The useful character of amendment gives it a
privilege of attaching itself to a secondary and privileged motion; that
is, we may amend a postponement of a main question. So, we may amend a
commitment of a main question, as by adding, for example, ``with
instructions to inquire,'' &c. * * *

This principle is recognized in the practice of the House of
Representatives (V, 5521).

[[Page 227]]

where, and usage has drawn it after the amendment to the amendment.
The same result must be sought by deciding against the amendment to the
amendment, and then moving it again as it was wished to be amended. In this
form it becomes only an amendment to an amendment.

Sec. 454. Amendment in the third degree not in
order.

* * * In like manner, if an amendment be moved to an amendment, it is
admitted; but it would not be admitted in another degree, to wit, to
amend an amendment to an amendment of a main question. This would lead
to too much embarrassment. The line must be drawn some-

This rule of the parliamentary law is considered fundamental in the
House of Representatives (rule XIX).

[[Page 228]]

he should vote in the affirmative, every
question for more would be precluded; but at that extreme which would
unite few, and then to advance or recede till you get to a number which
will unite a bare majority. 3 Grey, 376, 384, 385. ``The fair question
in this case is not that to which, and more, all will agree, but whether
there shall be addition to the question.'' 1 Grey, 365.

Sec. 455. Filling blanks; and amendment to
numbers.

[In filling a blank with a sum, the largest sum shall be first put to the
question, by the thirteenth rule of the Senate, contrary to the rule of
Parliament, which privileges the smallest sum and longest time. 5 Grey,
179; 2 Hats., 8, 83; 3 Hats., 132, 133.] And this is considered to be
not in the form of an amendment to the question, but as alternative or
successive originals. In all cases of time or number, we must consider
whether the larger comprehends the lesser, as in a question to what day
a postponement shall be, the number of a committee, amount of a fine,
term of an imprisonment, term of irredeemability of a loan, or the
terminus in quem in any other case; then the question must begin a
maximo. Or whether the lesser includes the greater, as in questions on
the limitation of the rate of interest, on what day the session shall be
closed by adjournment, on what day the next shall commence, when an act
shall commence or the terminus a quo in any other case where the
question must begin a minimo; the object being not to begin at that
extreme which, and more, being within every man's wish, no one could
negative it, and yet, if

The thirteenth rule of the Senate has been dropped. The House of
Representatives has no rule on the subject other than this provision of
the parliamentary law. It is very rare for the House to fill blanks for
numbers. When a number in pending text is to be changed by amendment,
the practice of the House permits to be pending: the alternative number
proposed in the amendment to the text; a second alternative number as an
amendment to the amendment; a third as a substitute; and a fourth as an
amendment to the substitute. Thus, if the pending text itself states a
number, then five alternative numbers may be pending simultaneously.
With respect to a concurrent resolution on the budget (which is
considered as read and open to amendment at any point and to which
amendments must be mathematically consistent under clause 8 of rule
XXIII), adoption of a perfecting amendment changing several figures
precludes further amendment merely changing those figures, but does not
preclude more comprehensive amendments changing other portions of the
resolution which have not been amended as well (Apr. 27, 1977, p.
12485).

Sec. 456. Priority of amendments over motions to
strike out or agree.

Another exception to the rule of priority is when a
motion has been made to strike out, or agree to, a paragraph. Motions to
amend it are to be put to the question before a vote is taken on
striking out or agreeing to the whole paragraph.

[[Page 229]]

In the House of Representatives the principle that a text should be
perfected before a question is taken on striking it out, and that an
amendment should be perfected before agreeing to it, is well
established. But in considering bills, even by paragraphs, the House
does not agree to the paragraphs severally; but after amending one
passes to the next, and the question on agreeing is taken only on the
whole bill by the several votes on engrossment and passage.

Sec. 457. Incidental questions, like points of
order, which intervene during consideration of the main question.

But there are
several questions which, being incidental to every one, will take place
of every one, privileged or not; to wit, a question of order arising out
of any other question must be decided before that question. 2 Hats., 88.

This principle governs the procedure of the House of Representatives,
but a question of order arising after a motion for the previous question
must be decided without debate (clause 3 of rule XVII).

Sec. 458. Matters of privilege as intervening
questions.

A matter of privilege arising out of any question, or from a quarrel
between two Members, or any other cause, supersedes the consideration of
the original question, and must be first disposed of. 2 Hats., 88.

Sec. 459. Intervention of questions relating to reading of
papers.

Rule IX of the House of Representatives and the practice thereunder,
confirm and amplify the principles of this provision of the
parliamentary law.
Reading papers relative to the question before the House.
This question must be put before the principal one. 2 Hats., 88.

This provision formerly applied in the House of Representatives to the
reading of papers other than those on which the House was to vote. That
was under an earlier form of rule XXX, which now applies only to the use
of exhibits in debate. For a history of the former rule on reading
papers and an explanation of the earlier practice, see Sec. Sec. 916-
917, infra.

[[Page 230]]

Sec. 460. Withdrawal of motions.

Leave asked to withdraw a
motion. The rule of Parliament being that a motion made and seconded is
in the possession of the House, and can not be withdrawn without leave,
the very terms of the rule imply that leave may be given, and,
consequently, may be asked and put to the question.

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The House of Representatives does not vote on the withdrawal of
motions, but provides by clause 2 of rule XVI and clause 5 of rule XXIII
the conditions under which a Member may of his own right withdraw a
motion.

sec. xxxiv.--the previous question.

Sec. 461. The previous question of
Parliament.

When any question is before the House, any Member may move a
previous question, ``Whether that question (called the main question)
shall now be put?'' If it pass in the affirmative, then the main
question is to be put immediately, and no man may speak anything further
to it, either to add or alter. Memor. in Hakew., 28; 4 Grey, 27.

Sec. 462. Manner of putting the previous
question.

The previous question being moved and seconded, the question from the
Chair shall be, ``Shall the main question be now put?'' and if the nays
prevail, the main question shall not then be put.

In the modern practice of the House of Representatives the previous
question is put as follows: ``The gentleman from ------ demands the
previous question. As many as are in favor of ordering the previous
question will say aye; as many as are opposed will say no'' (V, 5443).

[[Page 231]]

Sec. 463. History, use, etc., of the previous
question of Parliament.

This kind of question is understood by Mr. Hatsell to have
been introduced in 1604. 2 Hats., 80. Sir Henry Vane introduced it. 2
Grey, 113, 114; 3 Grey, 384. When the question was put in this form,
``Shall the main question be put?'' a determination in the negative
suppressed the main question during the session; but since the words
``now put'' are used, they exclude it for the present only; formerly,
indeed, only till the present debate was over, 4 Grey, 43, but now for
that day and no longer. 2 Grey, 113, 114.

Before the question ``Whether the main question shall now be put?''
any person might formerly have spoken to the main question, because
otherwise he would be precluded from speaking to it at all. Mem. in
Hakew., 28.

The proper occasion for the previous question is when a subject is
brought forward of a delicate nature as to high personages, &c., or the
discussion of which may call forth observations which might be of
injurious consequences. Then the previous question is proposed, and in
the modern usage the discussion of the main question is suspended and
the debate confined to the previous question. The use of it has been
extended abusively to other cases, but in these it has been an
embarrassing procedure. Its uses would be as well answered by other more
simple parliamentary forms, and therefore it should not be favored, but
restricted within as narrow limits as possible.

[House Rules Manual -- House Document No. 104-272]
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As explained in connection with rule XVII, the House of
Representatives has changed entirely the old use of the previous
question (V, 5445).

<> On an amendment being moved, a
Member who had spoken to the main question may speak again to the
amendment. Scob., 23.

sec. xxxv.--amendments.

[[Pages 232]]

This parliamentary rule applies in the House of Representatives, where
the hour rule of debate (clause 2 of rule XIV) has been in force for
many years. A member who has spoken an hour to the main question, may
speak another hour to an amendment (V, 4994; VIII, 2449).

Sec. 466. The Speaker not to decide as to consistency of
a proposed amendment with one already agreed to.

If an amendment be proposed
inconsistent with one already agreed to, it is a fit ground for its
rejection by the House, but not within the competence of the Speaker to
suppress as if it were against order. For were he permitted to draw
questions of consistence within the vortex or order, he might usurp a
negative on important modifications, and suppress, instead of
subserving, the legislative will.

The practice of the House of Representatives follows and extends the
principle set forth by Jefferson. Thus it has been held that the fact
that a proposed amendment is inconsistent with the text or embodies a
proposition already voted (II, 1328-1336; VIII, 2834), or would in
effect change a provision of text to which both Houses have agreed (II,
1335; V, 6183-6185), or is contained in substance in a later portion of
the bill (II, 1327), is a matter to be passed on by the House rather
than by the Speaker. It is for the House rather than the Speaker to
decide on the legislative or legal effect of a proposition (II, 1323,
1324; VI, 254; VII, 2112; VIII, 2280, 2841); and the change of a single
word in the text of a proposition may be sufficient to prevent the
Speaker from ruling it out of order as one already disposed of by the
House (II, 1274). The principle has been the subject of conflicting
decisions, from which may be deduced the rule that the Chair may not
rule out the proposition unless it presents a substantially identical
proposition (VI, 256; VIII, 2834, 2835, 2838, 2840, 2842, 2850, 2856).

[[Page 233]]

A perfecting amendment offered to an amendment in the nature of a
substitute may be offered again as an amendment to the original bill if
the amendment is first rejected or if the amendment in the nature of a
substitute as perfected is rejected (Sept. 28, 1976, p. 33075).
Rejection of an amendment consisting of two sections does not preclude
one of those sections being subsequently offered as a separate amendment
(July 15, 1981, pp. 15898-99), and the rejection of several amendments
considered en bloc does not preclude their being offered separately at a
subsequent time (Deschler's Precedents, vol. 9, ch. 27, sec. 35.15; Nov.
4, 1991, p. 29932). A point of order against an amendment to a
substitute does not lie merely because its adoption would have the same
effect as the adoption of a pending amendment to the original amendment
and would render the substitute as amended identical to the original
amendment as amended (May 4, 1983, p. 11059).

Sec. 467. The parliamentary law and the rules
of the House as to germane amendments.

Amendments may be made so as totally to alter
the nature of the proposition; and it is a way of getting rid of a
proposition by making it bear a sense different from what it was
intended by the movers, so that they vote against it themselves. 2
Hats., 79; 4, 82, 84. A new bill may be ingrafted, by way of amendment,
on the words, ``Be it enacted,'' etc. 1 Grey, 190, 192.

This was the rule of Parliament, which did not require an amendment to
be germane (V, 5802, 5825). But the House of Representatives from its
first organization, has by rule required that an amendment should be
germane to the pending proposition (clause 7 of rule XVI).

Sec. 468. The amendment to strike out certain words
of a bill.

If it be proposed to amend by leaving out certain words, it may be
moved, as an amendment to this amendment, to leave out a part of the
words of the amendment, which is equivalent to leaving them in the bill.
2 Hats., 80, 9. The parliamentary question is, always, whether the words
shall stand part of the bill.

[[Page 234]]

one already stricken out by amendment (V, 5760; Sept. 2, 1976,
pp. 28939-58).

In the House of Representatives the question herein described is never
put as in Parliament, but is always, whether the words shall be stricken
out; and if there is a desire that certain of the words included in the
amendment remain part of the bill, it is expressed, not by amending the
amendment, but by a preferential perfecting amendment to strike from the
specified words in the text of the bill a portion of them. If this is
carried that portion of the specified words is stricken from the bill
and the vote then recurs on the original amendment (V, 5770). Where a
motion to strike an entire title of a bill is pending, it is in order to
offer, as a perfecting amendment to that title, a motion to strike out a
lesser portion thereof, and the perfecting amendment is voted on first
(June 11, 1975, p. 18435). And when a motion to strike out certain words
is disagreed to, it is in order to move to strike out a portion of those
words (V, 5769); but when it is proposed to strike out certain words in
a paragraph, it is not in order to amend those words by including with
them other words of the paragraph (V, 5768; VIII, 2848; June 2, 1976,
pp. 16208-10). It is in order to insert by way of amendment a paragraph
similar (but not actually identical) to

Sec. 469. Principles as to perfecting before
inserting or striking out.

When it is proposed to amend by inserting a paragraph,
or part of one, the friends of the paragraph may make it as perfect as
they can by amendments before the question is put for inserting it. If
it be received, it cannot be amended afterward in the same stage,
because the House has, on a vote, agreed to it in that form. In like
manner, if it is proposed to amend by striking out a paragraph, the
friends of the paragraph are first to make it as perfect as they can by
amendments, before the question is put for striking it out. If on the
question it be retained, it cannot be amended afterward, because a vote
against striking out is equivalent to a vote agreeing to it in that
form.

These principles are recognized as in force in the House of
Representatives, with the exception that clause 7 of rule XVI
specifically provides that the rejection of a motion to strike shall
preclude neither ``amendment nor motion to strike out and insert.''
However, after an amendment to insert has been agreed to, the matter
inserted ordinarily may not then be amended (V, 5761-5763; VIII, 2852)
in any way that would change its text; but an amendment may be added at
the end (V, 5759, 5764, 5765; Dec. 14, 1973, p. 41740; Oct. 1, 1974, p.
33364), even if the perfecting amendment which was adopted struck out
all after the short title of the amendment in the nature of a substitute
and inserted a new text (May 16, 1979, p. 11480). While an amendment
which has been adopted to an amendment (in the nature of a substitute)
may not be further amended, another amendment adding language at the end
of the amendment may still be offered (June 10, 1976, pp. 17368-75,
17381; Procedure, ch. 27, sec. 27.4 and 27.9; May 16, 1984, pp. 12566-
67), and the Chair will not rule on the consistency of that language
with the adopted amendment (June 10, 1976, p. 17381).

[[Page 235]]

or to amend unamended portions which have been passed in the
reading and are no longer open to amendment (July 12, 1983, p. 18771),
or to amend a figure already amended (Procedure, ch. 27, sec. 31; July
17, 1995, p. ----), even if also changing other matter not already
amended, where drafted as though the earlier amendment had not been
adopted (Mar. 15, 1995, p. ----; Mar. 16, 1995, p. ----; Mar. 16, 1995,
p. ----; July 17, 1995, p. ----).
While it may be in order to offer an amendment to the pending portion
of the bill which not only changes a provision already amended but also
changes an unamended pending portion of the bill, it is not in order
merely to amend portions of the bill which have been changed by
amendment,

When it is proposed to perfect a paragraph, a motion to strike it out,
if already pending, must remain in abeyance until the amendments to
perfect have been moved and voted on (V, 5758; VIII, 2860; May 5, 1992,
p. ----; Oct. 12, 1995, p. ----); and while amendments are pending to a
section a motion to strike it out may not be offered (V, 5771; VIII,
2861; Sept. 23, 1982, p. 24963; July 25, 1995, p. ----). The motion to
strike may be voted on (if already pending) or subsequently offered
after disposition of the perfecting amendment, so long as the provision
sought to be stricken has not been rewritten entirely (Sept. 23, 1982,
p. 24963; July 25, 1995, p. ----). While a motion to strike out is
pending, it is in order to offer an amendment to perfect the language
proposed to be stricken (Apr. 24, 1996, p. ----); such an amendment,
which is in the first degree, may be amended by a substitute, and
amendments to the substitute are also in order (Oct. 19, 1983, p.
28283), and such perfecting amendment, if agreed to when voted on first,
remains part of the bill if the motion to strike is then rejected (Sept.
18, 1986, p. 28123). When a motion to strike out a paragraph is pending
and the paragraph is perfected by an amendment, striking and inserting
an entire new text, the pending motion to strike out must fall, since it
would not be in order to strike out exactly what has been just voted to
insert (V, 5792; VIII, 2854; July 12, 1951, p. 8090; Sept. 23, 1975, p.
29835; Aug. 5, 1986, p. 19059; May 18, 1988, p. 11404; Apr. 24, 1996, p.
----). A motion to strike out and insert a portion of a pending section
is not in order as a substitute for a motion to strike out the section,
but may be offered as a perfecting amendment to the section and is voted
on first, subject to being eliminated by subsequent adoption of the
motion to strike out (July 16, 1981, p. 16057).

[[Page 236]]

first on striking out. If carried, it is next on inserting the words
proposed. If that be lost, it may be moved to insert others. 2 Hats., 80, 7.

Sec. 470. Reading the motion and putting the
question on a motion to strike out and insert.

When it is moved to amend by
striking out certain words and inserting others, the manner of stating
the question is first to read the whole passage to be amended as it
stands at present, then the words proposed to be struck out, next those
to be inserted, and lastly the whole passage as it will be when amended.
And the question, if desired, is then to be divided, and put

Clause 7 of rule XVI of the House of Representatives provides
specifically that the motion to strike out and insert shall not be
divided. Otherwise, as to the manner of stating the question, it is
usual for the clerk to read only the words to be stricken out and the
words to be inserted. Usually this is sufficient, as the Members may
have before them printed copies of the bill under consideration.

Sec. 471. Conditions of repetition of motions to
strike out and insert.

A motion is made to amend by striking out certain words
and inserting others in their place, which is negatived. Then it is
moved to strike out the same words, and to insert others of a tenor
entirely different from those first proposed. It is negatived. Then it
is moved to strike out the same words and insert nothing, which is
agreed to. All this is admissible, because to strike out and insert A is
one proposition. To strike out and insert B is a different proposition.
And to strike out and insert nothing is still different. And the
rejection of one proposition does not preclude the offering a different
one. Nor would it change the case were the first motion divided by
putting the question first on striking out, and that negatived; for, as
putting the whole motion to the question at once would not have
precluded, the putting the half of it cannot do it.

[[Page 237]]

the same question for striking out cannot be put over again, though with
a view to a different insertion. Still I think it more reasonable and
convenient to consider the striking out and insertion as forming one
proposition, but should readily yield to any evidence that the contrary
is the practice in Parliament.''
As to Jefferson's supposition that the principle would hold good in
case of division of the motion to strike out and insert it is not
necessary to inquire, since clause 7 of rule XVI of the House of
Representatives forbids division of the motion. In a footnote Jefferson
expressed himself as follows: ``In the case of a division of the
question, and a decision against striking out, I advanced doubtingly the
opinion here expressed. I find no authority either way, and I know it
may be viewed under a different aspect. It may be thought that, having
decided separately not to strike out the passage,

Sec. 472. Application of the motion to strike
out.

The principle set forth by Jefferson as to repetition of the motion to strike
out prevails in the House of Representatives, where it has been held in
order, after the failure of a motion to strike out certain words, to
move to strike out a portion of those words (V, 5769; VIII, 2858). When
a bill is under consideration by paragraphs, a motion to strike out
applies only to the paragraph under consideration (V, 5774).

Sec. 473. Effect of affirmative vote on motion to
strike out and insert.

But if it had been carried affirmatively to strike out
the words and to insert A, it could not afterward be permitted to strike
out A and insert B. The mover of B should have notified, while the
insertion of A was under debate, that he would move to insert B; in
which case those who preferred it would join in rejecting A.

This principle controls the practice of the House of Representatives
(July 17, 1985, p. 19444; July 18, 1985, p. 19649; see Procedure, ch.
27, sec. 31).

Sec. 474. Conditions of striking out an amendment
already agreed to.

After A is inserted, however, it may be moved to strike out
a portion of the original paragraph, comprehending A, provided the
coherence to be struck out be so substantial as to make this effectively
a different proposition; for then it is resolved into the common case of
striking out a paragraph after amending it. Nor does anything forbid a
new insertion, instead of A and its coherence.

[[Page 238]]

title except one is not in order where that section has
previously been amended in its entirety (Aug. 1, 1975, p. 26946).

While it is not in order to move to strike a provision inserted by
amendment (Oct. 9, 1985, p. 26957), a motion to strike more than that
provision inserted would be in order (Apr. 23, 1975, p. 11536). But an
amendment to strike out the pending title of a bill and re-insert all
sections of that

[[Page 239]]

proposing first the question to strike out, and
then that to insert. Now, this is precisely the effect of the present
proceeding; only, instead of one motion and two questions, there are two
motions and two questions to effect it--the motion being divided as well
as the question.

Sec. 475. Amendments filling blanks as to
time.

In Senate, January 25, 1798, a motion to postpone until the second Tuesday
in February some amendments proposed to the Constitution; the words
``until the second Tuesday in February'' were struck out by way of
amendment. Then it was moved to add, ``until the first day of June.''
Objected that it was not in order, as the question should be first put
on the longest time; therefore, after a shorter time decided against, a
longer cannot be put to question. It was answered that this rule takes
place only in filling blanks for time. But when a specific time stands
part of a motion, that may be struck out as well as any other part of
the motion; and when struck out, a motion may be received to insert any
other. In fact, it is not until they are struck out, and a blank for the
time thereby produced, that the rule can begin to operate, by receiving
all the propositions for different times, and putting the questions
successively on the longest. Otherwise it would be in the power of the
mover by inserting originally a short time, to preclude the possibility
of a longer; for till the short time is struck out, you cannot insert a
longer; and if, after it is struck out, you cannot do it, then it cannot
be done at all. Suppose the first motion had been made to amend by
striking out ``the second Tuesday in February,'' and inserting instead
thereof ``the first of June,'' it would have been regular, then, to
divide the question, by

The principles of this paragraph have been followed in the House of
Representatives (V, 5763; Aug. 16, 1961, pp. 16059-60), but in one case
wherein words embodying a distinct substantive proposition had been
agreed to as an amendment to a paragraph, it was held not in order to
strike out a part of the words of this amendment with other words of the
paragraph (V, 5766).

The motion to strike out and insert may not be divided in the House of
Representatives (clause 7 of rule XVI).

Sec. 476. Joining and dividing bills.

When the matter
contained in two bills might be better put into one, the manner is to
reject the one and incorporate its matter into another bill by way of
amendment. So if the matter of one bill would be better distributed into
two, any part may be struck out by way of amendment, and put into a new
bill. * * *

In the modern practice of the House of Representatives each bill comes
before the House by itself; and if it were proposed to join one bill to
another it would be done by offering the text of the one as an amendment
to the other, without disturbing the first bill in its place on the
calendar. Where it is proposed to divide a bill, the object is
accomplished in the House of Representatives by moving to recommit with
instructions to the committee to report two bills (V, 5527, 5528).

Sec. 477. Transposition of the sections of a
bill.

* * * If a section is to be transposed, a question must be put on striking
it out where it stands and another for inserting it in the place
desired.

[[Page 240]]

This principle is followed in the practice of the House of
Representatives (V, 5775, 5776).

Sec. 478. Filling blanks left by the other
House.

A bill passed by the one House with blanks. These may be filled up by
the other by way of amendments, returned to the first as such, and
passed 3 Hats., 83.

Sec. 479. Clerk amends the section numbers of a
bill.

The number prefixed to the section of a bill, be merely a marginal
indication, and no part of the text of the bill, the Clerk regulates
that--the House or committee is only to amend the text.

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In the modern practice of the House, section numbers and other
internal references are considered as part of the text which may be
altered by amendment. The House sometimes authorizes the Clerk to make
appropriate changes in section numbers, paragraphs and punctuation, and
cross references when preparing the engrossment of the bill. Such a
request is properly made in the House, following passage of the bill
(Apr. 29, 1969, p. 10753).

sec. xxxvi.--division of the question.

[[Page 241]]

2 Hats., 85, 86. So, wherever there are several names in a
question, they may be divided and put one by one. 9 Grey, 444. So, 1729,
April 17, on an objection that a question was complicated, it was
separated by amendment. 2 Hats., 79.

Sec. 480. Parliamentary law for division of the
question.

If a question contain more parts than one, it may be divided into two or
more questions. Mem. in Hakew., 29. But not as the right of an
individual member, but with the consent of the House. For who is to
decide whether a question is complicated or not--where it is
complicated--into how many propositions it may be divided? The fact is,
that the only mode of separating a complicated question is by moving
amendments to it; and these must be decided by the House, on a question,
unless the House orders it to be divided; as, on the question, December
2, 1640, making void the election of the knights for Worcester, on a
motion it was resolved to make two questions of it, to wit, one on each
knight.

The House of Representatives, by clause 6 of rule XVI and the practice
thereunder, has entitled a procedure differing materially from that
above set forth. While a resolution electing Members to committees is
not divisible (clause 6 of rule XVI), other types of resolutions
containing several names may be divided for voting (Mar. 19, 1975, p.
7344).

Sec. 481. Jefferson's discussion of division of
the question.

The soundness of these observations will be evident from the
embarrassments produced by the XVIIIth rule of the Senate, which says,
``if the question in debate contains several points, any member may have
the same divided.''

[[Page 242]]

sweeps away the exceptions with the rule, and relieves from
inconsistence. A question to be divisible must comprehend points so
distinct and entire that one of them being taken away, the other may
stand entire. But a proviso or exception, without an enacting clause,
does not contain an entire point or proposition.
1798, May 30, the alien bill in quasi-committee. To a section and
proviso in the original, had been added two new provisos by way of
amendment. On a motion to strike out the section as amended, the
question was desired to be divided. To do this it must be put first on
striking out either the former proviso, or some distinct member of the
section. But when nothing remains but the last member of the section and
the provisos, they cannot be divided so as to put the last member to
question by itself, for the provisos might thus be left standing alone
as exceptions to a rule when the rule is taken away; or the new provisos
might be left to a second question, after having been decided on once
before at the same reading, which is contrary to rule. But the question
must be on striking out the last member of the section as amended. This

[[Page 243]]

May 31.--The same bill being before the Senate. There was a proviso
that the bill should not extend--1. To any foreign minister; nor, 2. To
any person to whom the President should give a passport; nor, 3. To any
alien merchant conforming himself to such regulations as the President
shall prescribe; and a division of the question into its simplest
elements was called for. It was divided into four parts, the 4th taking
in the words ``conforming himself,'' &c. It was objected that the words
``any alien merchant,'' could not be separated from their modifying
words, ``conforming,'' &c., because these words, if left by themselves,
contain no substantive idea, will make no sense. But admitting that the
divisions of a paragraph into separate questions must be so made as that
each part may stand by itself, yet the House having, on the question,
retained the two first divisions, the words ``any alien merchant'' may
be struck out, and their modifying words will then attach themselves to
the preceding description of persons, and become a modification of that
description.

Sec. 482. Division of question as related to debate or
amendment.

When a question is divided, after the question on the 1st member,
the 2d is open to debate and amendment; because it is a known rule that
a person may rise and speak at any time before the question has been
completely decided, by putting the negative as well as the affirmative
side. But the question is not completely put when the vote has been
taken on the first member only. One-half the question, both affirmative
and negative, remains still to be put. See Execut. Jour., June 25, 1795.
The same decision by President Adams.

[House Rules Manual -- House Document No. 104-272]
[From the U.S. Government Printing Office Online Database]
[Pages 243-244]
[DOCID:hrmanual-43]

Where a division of the question is demanded on a portion of an
amendment, the Chair puts the question first on the remaining portions
of the amendment, and that portion on which the division is demanded
remains open for further debate and amendment (Oct. 21, 1981, p. 24785).
However, where neither portion of a divided question remains open to
further debate or amendment, the question may be put first on the
portion identified by the demand for division and then on the remainder
(June 8, 1995, p. ----).

sec. xxxvii.--coexisting questions.

[[Page 244]]

previous question, postponement, or commitment), remove it from before
the House. But it is only suspended by a motion to amend, to withdraw,
to read papers, or by a question of order or privilege, and stands again
before the House when these are decided. None but the class of
privileged questions can be brought forward while there is another
question before the House, the rule being that when a motion has been
made and seconded, no other can be received except it be a privileged
one.

Sec. 483. Fundamental principles as to coexisting
questions.

It may be asked whether the House can be in possession of two motions
or propositions at the same time? so that, one of them being decided,
the other goes to question without being moved anew? The answer must be
special. When a question is interrupted by a vote of adjournment, it is
thereby removed from before the House, and does not stand ipso facto
before them at their next meeting, but must come forward in the usual
way. So, when it is interrupted by the order of the day. Such other
privileged questions also as dispose of the main question (e.g., the

[House Rules Manual -- House Document No. 104-272]
[From the U.S. Government Printing Office Online Database]
[Pages 244-247]
[DOCID:hrmanual-44]

The principles of this provision must, of course, be viewed in the
light of a more highly perfected order of business than existed in
Jefferson's time (rule XXIV). The motion to withdraw is not known in the
practice of the House, not being among the motions enumerated in clause
4 of rule XVI, but a motion before the House may be withdrawn by the
mover thereof before a decision is reached (clause 2 of rule XVI).

sec. xxxviii.--equivalent questions.

Sec. 484. Former practice as to rejection and second
reading of bills.

If, on a question for rejection, a bill be retained, it
passes, of course, to its next reading. Hakew., 141; Scob., 42. And a
question for a second reading, determined negatively, is a rejection
without further question. 4 Grey, 149. And see Elsynge's Memor., 42, in
what case questions are to be taken for rejection.

The House of Representatives has abandoned the question ``Shall the
bill be rejected?'' (IV, 3391), and the question is now taken in
accordance with clause 1 of rule XXI. A vote is not taken on the second
reading, the first test coming in the modern practice of the House on
the engrossment and third reading.

[[Page 245]]

other, and leaves no other
alternative, the decision of the one concludes necessarily the other. 4
Grey, 157. Thus the negative of striking out amounts to the affirmative
of agreeing; and therefore to put a question on agreeing after that on
striking out, would be to put the same question in effect twice over.
Not so in questions of amendments between the two Houses. A motion to
recede being negatived, does not amount to a positive vote to insist,
because there is another alternative, to wit, to adhere.

Sec. 485. Equivalent questions in
general.

Where questions are perfectly equivalent, so that the negative of the one
amounts to the affirmative of the

The principles set forth in this paragraph are recognized by the
practice of the House of Representatives; but Jefferson's use of the
motion to strike out as an illustration is no longer justified, since
the practice of the House under clause 7 of rule XVI does not permit the
negative of the motion to strike out to be equivalent to the affirmative
of agreeing.

Sec. 486. Equivalent questions on amendments between
the Houses.

A bill originating in one House is passed by the other with an
amendment. A motion in the originating House to agree to the amendment
is negatived. Does there result from this a vote of disagreement, or
must the question on disagreement be expressly voted? The question
respecting amendments from another House are--1st, to agree; 2d,
disagree; 3d, recede; 4th, insist; 5th, adhere.

[[Page 246]]

5488). The motion to refer also takes precedence of the
motions to agree or disagree (V, 6172-6174), but the demanding or
ordering of the previous question does not prevent a motion to refer (V,
5575). The motion to refer takes precedence of the motions to agree or
disagree and, under clause 1, of rule XVII is in order pending a demand
for or after the ordering of the previous question, before the stage of
disagreement has been reached (V, 6172-6174, 5575) but not after the
stage of disagreement when the most preferential motion tending to bring
the two Houses together is already pending (Speaker Albert, Sept. 16,
1976, pp. 30887-88).

In the House of Representatives and the Senate the order of precedence
of motions is as given in the parliamentary law, and the motions take
precedence in that order without regard to the order in which they are
moved (V, 6270, 6324). But a motion to amend an amendment of the other
House has precedence of the motion to agree or disagree either before
the stage of disagreement has been reached or after the House has
receded from its disagreement (V, 6164, 6169-6171; VIII, 3203) even
after the previous question has been ordered on both motions before the
question is divided (Feb. 12, 1923, p. 3512). See also the discussion in
Sec. 525, infra. But it has been held that when the previous question
has been demanded or ordered on a motion to concur, a motion to amend is
not in order (V,

Sec. 487. The motions to agree and disagree as related
to motions to amend.

1st. To agree; 2d. To disagree.--Either of these
concludes the other necessarily, for the positive of either is exactly
the equivalent to the negative of the other, and no other alternative
remains. On either motion amendments to the amendment may be proposed;
e.g., if it be moved to disagree, those who are for the amendment have a
right to propose amendments, and to make it as perfect as they can,
before the question of disagreeing is put.

Sec. 488. No equivalent questions on
motions to recede, insist, and adhere.

3d. To recede.--You may then either insist or
adhere. 4th. To insist.--You may then either
recede or adhere.

5th. To adhere.--You may then either recede or insist.

Consequently the negative of these is not equivalent to a positive
vote the other way. It does not raise so necessary an implication as may
authorize the Secretary by inference to enter another vote; for two
alternatives still remain, either of which may be adopted by the House.

[[Page 247]]

the more recent practice is that when the House disagrees to a motion to
recede and concur in a Senate amendment some further action must be
taken to dispose of the amendment (Speaker Bankhead, July 9, 1937, p.
7007; Speaker McCormack, Sept. 19, 1962, p. 19945) and the question may
recur on a pending motion to insist or such a motion is then entertained
from the floor.

[House Rules Manual -- House Document No. 104-272]
[From the U.S. Government Printing Office Online Database]
[Page 247]
[DOCID:hrmanual-45]

Under the earlier practice in the House it was held that voting down
the motion to recede and concur was tantamount to insistence but not the
equivalent of adherence (Speaker Clark, July 2, 1918, p. 8648). But

<> The question is to be put
first on the affirmative, and then on the
negative side.

sec. xxxix.--the question.

Clause 5 of rule I of the House of Representatives, provides more
fully for putting the question.

Sec. 490. Effect of putting the question in ending
debate.

After the Speaker has put the affirmative part of the question, any
Member who has not spoken before to the question may rise and speak
before the negative be put; because it is no full question till the
negative part be put. Scob., 23; 2 Hats., 73.

[House Rules Manual -- House Document No. 104-272]
[From the U.S. Government Printing Office Online Database]
[Pages 247-251]
[DOCID:hrmanual-46]

Sec. 491. Informal putting of the question.

But in small
matters, and which are of course, such as receiving petitions, reports,
withdrawing motions, reading papers, &c., the Speaker most commonly
supposes the consent of the House where no objection is expressed, and
does not give them the trouble of putting the question formally. Scob.,
22; 2 Hats., 79, 2, 87; 5 Grey, 129; 9 Grey, 301.

sec. xl.--bills, third reading.

[[Page 248]]

Sec. 492. Obsolete requirements as to reading and
passage of bills.

To prevent bills from being passed by surprise, the House, by a
standing order, directs that they shall not be put on their passage
before a fixed hour, naming one at which the house is commonly full.
Hakew., 153.

The usage of the Senate is not to put bills on their passage till
noon.

A bill reported and passed to the third reading, cannot on that day be
read the third time and passed; because this would be to pass on two
readings in the same day.

Sec. 493. Obsolete parliamentary law as to third
reading.

At the third reading the Clerk reads the bill and delivers it to the
Speaker, who states the title, that it is the third time of reading the
bill, and that the question will be whether it shall pass. Formerly the
Speaker, or those who prepared a bill, prepared also a breviate or
summary statement of its contents, which the Speaker read when he
declared the state of the bill, at the several readings. Sometimes,
however, he read the bill itself, especially on its passage. Hakew.,
136, 137, 153; Coke, 22, 115. Latterly, instead of this, he, at the
third reading, states the whole contents of the bill verbatim, only,
instead of reading the formal parts, ``Be it enacted,'' &c., he states
that ``preamble recites so and so--the 1st section enacts that, &c.; the
2d section enacts,'' &c.

But in the Senate of the United States, both of these formalities are
dispensed with; the breviate presenting but an imperfect view of the
bill, and being capable of being made to present a false one; and the
full statement being a useless waste of time, immediately after a full
reading by the Clerk, and especially as every member has a printed copy
in his hand.

[[Page 249]]

time and passed on the same day, and it is in order to proceed
with a bill at any time, unless the absence of a quorum be shown.
None of the restrictions is of effect in the modern practice of the
House of Representatives. Clause 1 of rule XXI permits a bill to be read
a third

In the House of Representatives there is no practice justifying the
presentation of a breviated summary; and the procedure on third reading
is definitely prescribed by clause 1 of rule XXI.

Sec. 494. Committal of a bill on third
reading.

A bill on the third reading is not to be committed for the matter or
body thereof, but to receive some particular clause or proviso, it hath
been sometimes suffered, but as a thing very unusual. Hakew., 156. Thus,
27 El., 1584, a bill was committed on the third reading, having been
formerly committed on the second, but is declared not usual. D'Ewes,
337, col. 2; 414, col. 2.

In the House of Representatives it is in order to commit a bill after
the engrossment and third reading where the previous question is not
ordered (V, 5562); and by clause 1 of rule XVII and clause 4 of rule XVI
the House has preserved this opportunity to commit even after the
previous question has been ordered.

Sec. 495. Obsolete parliamentary practice as to
riders.

When an essential provision has been omitted, rather than erase the
bill and render it suspicious, they add a clause on a separate paper,
engrossed and called a rider, which is read and put to the question
three times. Elsynge's Memo., 59; 6 Grey, 335; 1 Blackst., 183. For
examples of riders, see 3 Hats., 121, 122, 124, 156. Every one is at
liberty to bring in a rider without asking leave. 10 Grey, 52.

This practice is never followed in the House of Representatives.

[[Page 250]]

read; as also all amendments from the other House. Town.,
col. 19, 23, 24, 25, 26, 27, 28.

Sec. 496. Obsolete requirements as to reading of
amendments.

It is laid down, as a general rule, that amendments proposed at
the second reading shall be twice read, and those proposed at the third
reading thrice

In the practice of the House of Representatives, amendments, whether
offered in the House or coming from the other House, do not come under
the rule requiring different readings.

Sec. 497. Amendments before the third reading.

It is with
great and almost invincible reluctance that amendments are admitted at
this reading, which occasion erasures or interlineations. Sometimes a
proviso has been cut off from a bill; sometimes erased. 9 Grey, 513.

This is the proper stage for filling up blanks; for if filled up
before, and now altered by erasure, it would be peculiarly unsafe.

In the House of Representatives bills are amended after the second
reading (IV, 3392), and before the engrossment and third reading (V,
5781; VII, 1051, 1052) but not afterwards.

Sec. 498. Debate in relation to the third
reading.

At this reading the bill is debated afresh, and for the most part is
more spoken to at this time than on any of the former readings. Hakew.,
153.

[[Page 251]]

The debate on the question whether it should be read a third time, has
discovered to its friends and opponents the arguments on which each side
relies, and which of these appear to have influence with the House; they
have had time to meet them with new arguments, and to put their old ones
into new shapes. The former vote has tried the strength of the first
opinion, and furnished grounds to estimate the issue; and the question
now offered for its passage is the last occasion which is ever to be
offered for carrying or rejecting it.

In the House of Representatives it is usual to debate a bill before
and not after the engrossment and third reading, probably because of the
frequent use of the previous question, which prevents all debate after
it is ordered. When the previous question is not ordered, debate may
occur pending the vote on the passage.

Sec. 499. Putting the question on the passage of a
bill.

When the debate is ended, the Speaker, holding the bill in his hand, puts
the question for its passage, by saying, ``Gentlemen, all you who are of
opinion that this bill shall pass, say aye;'' and after the answer of
the ayes, ``All those of the contrary opinion, say no.'' Hakew., 154.

<> After the
bill is passed, there can be no further alteration of it in any
point. Hakew., 159.

In the House of Representatives the bill is usually in the hands of
the Clerk. The Speaker states that ``The question is on the passage of
the bill,'' and puts the question in the form prescribed by clause 5 of
rule I.

[House Rules Manual -- House Document No. 104-272]
[From the U.S. Government Printing Office Online Database]
[Pages 251-257]
[DOCID:hrmanual-47]

This principle controls the practice of the House of Representatives.
However, a bill may be changed if the votes on passage, engrossment, and
ordering the previous question have been reconsidered. In addition, the
Clerk may be authorized to make changes in the engrossed copy by
unanimous consent.

sec. xli.--division of the house.

[[Page 252]]

decision, then the Speaker is to divide the
House. Scob., 24; 2 Hats., 140.

Sec. 501. Division of the House after
determination by sound.

The affirmative and negative of the question having been both put
and answered, the Speaker declares whether the yeas or nays have it by
the sound, if he be himself satisfied, and it stands as the judgment of
the House. But if he be not himself satisfied which voice is the
greater, or if before any other Member comes into the House, or before
any new motion made (for it is too late after that), any Member shall
arise and declare himself dissatisfied with the Speaker's

This practice is provided for in different language by clause 5 of
rule I.

Sec. 502. Parliamentary provisions as to division,
not applicable in the House.

When the House of Commons is divided, the one
party goes forth, and the other remains in the House. This has made it
important which go forth and which remain; because the latter gain all
the indolent, the indifferent, and inattentive. Their general rule,
therefore, is that those who give their vote for the preservation of the
orders of the House shall stay in, and those who are for introducing any
new matter or alteration, or proceeding contrary to the established
course, are to go out. But this rule is subject to many exceptions and
modifications. 2 Hats., 134; 1 Rush., p. 3, fol. 92; Scob., 43, 52; Co.,
12, 116; D'Ewes, 505, col. 1; Mem. in Hakew., 25, 29.

The one party being gone forth, the Speaker names two tellers from the
affirmative and two from the negative side, who first count those
sitting in the House and report the number to the Speaker. Then they
place themselves within the door, two on each side, and count those who
went forth as they come in and report the number to the Speaker. Mem. in
Hakew., 26.

[[Page 253]]

<>
A mistake in the report of the tellers may be rectified after the report
made. 2 Hats., 145, note.
* * * * *
The House of Representatives formerly employed a vote ``by tellers''
that was perhaps comparable to that described above. However, the
provision in clause 5 of rule I that provided for teller votes was
repealed by the 103d Congress. Under the former procedure tellers took
their place at the rear of the center aisle when named by the Chair, and
Members passed between them to be counted. Clause 5 of rule I also
provides for taking a ``recorded vote'' by means of the electronic
voting system when seconded by one-fifth of a quorum.

Sec. 504. Voting by yeas and nays.

When it is proposed to
take the vote by yeas and nays, the President or Speaker states that
``the question is whether, e.g., the bill shall pass--that it is
proposed that the yeas and nays shall be entered on the journal. Those,
therefore, who desire it will rise.'' If he finds and declares that one-
fifth have risen, he then states that ``those who are of opinion that
the bill shall pass are to answer in the affirmative; those of the
contrary opinion in the negative.'' The Clerk then calls over the names
alphabetically, notes the yea or nay of each, and gives the list to the
President or Speaker, who declares the result. In the Senate if there be
an equal division the Secretary calls on the Vice-President and notes
his affirmative or negative, which becomes the decision of the House.

[[Page 254]]

In the House of Representatives tellers were sometimes, though rarely,
ordered to determine whether one-fifth joined in the demand for the yeas
and nays (V, 6045) but in the later practice the Speaker's count is not
subject to verification (VIII, 3114-3118), and it is not in order to
demand a rising vote of those opposed on a count by the Speaker to
ascertain if one-fifth concur in demand for yeas and nays (VIII, 3112,
3113). Clause 1 of rule XV of the House provides the method for taking
the yeas and nays in the modern practice; but under clause 5 of that
rule both the yeas and nays and calls of the House are taken by means of
the electronic voting system unless the Speaker in his discretion orders
the utilization of other prescribed procedures.

Sec. 505. Parliamentary law as to giving of
votes.

In the House of Commons every member must give his vote the one way or
the other, Scob., 24, as it is not permitted to anyone to withdraw who
is in the House when the question is put, nor is anyone to be told in
the division who was not in when the question was put. 2 Hats., 140.

This last position is always true when the vote is by yeas and nays;
where the negative as well as affirmative of the question is stated by
the President at the same time, and the vote of both sides begins and
proceeds pari passu. It is true also when the question is put in the
usual way, if the negative has also been put; but if it has not, the
member entering, or any other member may speak, and even propose
amendments, by which the debate may be opened again, and the question be
greatly deferred. And as some who have answered aye may have been
changed by the new arguments, the affirmative must be put over gain. If,
then, the member entering may, by speaking a few words, occasion a
repetition of a question, it would be useless to deny it on his simple
call for it.

[[Page 255]]

Clause 1 of rule VIII of the House of Representatives requires Members
to vote; but no rule excludes from voting those not present at the
putting of the question, and this requirement of the parliamentary law
is not observed in the House. No attempt is made to prevent Members from
withdrawing after a question is put, unless there be a question as to a
quorum, when the House proceeds under clauses 2 and 4 of rule XV.

Sec. 506. Movements of Members during
voting.

While the House is telling, no member may speak or move out of his
place, for if any mistake be suspected it must be told again. Mem. in
Hakew., 26; 2 Hats., 143.

This rule applies in the House of Representatives on a vote by
division, where the Speaker counts; but did not apply to the former vote
by ``tellers,'' where Members passed between tellers at the rear of the
center aisle to be counted.

Sec. 507. Decisions of points of order during a
division.

If any difficulty arises in point of order during the division, the
Speaker is to decide peremptorily, subject to the future censure of the
House if irregular. He sometimes permits old experienced members to
assist him with their advice, which they do sitting in their seats,
covered, to avoid the appearance of debate; but this can only be with
the Speaker's leave, else the division might last several hours. 2
Hats., 143.

Representatives no longer sit with their hats on (clause 7 of rule
XIV) and always rise to speak; respectfully addressing their remarks to
``Mr. Speaker'' (clause 1 of rule XIV).

Sec. 508. Decision by voice of majority; and tie
votes.

The voice of the majority decides; for the lex majoris partis is the law
of all councils, elections, &c., where not otherwise expressly provided.
Hakew., 93. But if the House be equally divided, semper presuamtur pro
negante; that is, the former law is not to be changed but by a majority.
Towns., col. 134.

[[Page 256]]

The House of Representatives provides also by rule (clause 6 of rule
I) that in the case of a tie vote the question shall be lost.

- The standing <> rules also
require a three-fifths vote for passage or adoption of a bill, a joint
resolution, an amendment thereto, or a conference report thereon, if
carrying a Federal income tax rate increase (clause 5(c) of rule XXI) or
for passage of a bill called from the Corrections Calendar (clause 4(c)
of rule XIII).

Sec. 509. Twothirds votes.

The House of Representatives,
however, requires a two-thirds vote on a motion to suspend the rules
(clause 1 of rule XXVII), on a motion to dispense with Calendar
Wednesday (clause 7 of rule XXIV), on a motion to dispense with the call
of the Private Calendar on the first Tuesday of each month (clause 6 of
rule XXIV), and to consider a special rule immediately (clause 4(b) of
rule XI), and the Constitution of the United States requires two-thirds
votes for the expulsion of a Member, passing vetoed bills, removing
political disabilities, and passing resolutions proposing amendments to
the Constitution.

Sec. 510. Business suspended by the failure of a
quorum.

When from counting the House on a division it appears that there is not
a quorum, the matter continues exactly in the state in which it was
before the division, and must be resumed at that point on any future
day. 2 Hats., 126.

While under the rules first adopted in the 95th Congress it is not in
order to make or entertain a point of no quorum unless the question has
been put on the pending motion or proposition, if a quorum in fact does
not respond on a call of the House or on a vote, even the most highly
privileged business must terminate (IV, 2934; VI, 662) and even debate
must stop until a quorum is established (see IV, 2935-2949). No motion
is entertained in the absence of a quorum other than a motion relating
to the call of the House or to adjourn (IV, 2950; VI, 680). Even in the
closing hours of a Congress business has been stopped by the failure of
a quorum (V, 6309; Oct. 18, 1972, pp. 37199-37200).

[[Page 257]]

Sec. 511. Change of a vote.

1606, May 1, on a question
whether a Member having said yea may afterwards sit and change his
opinion, a precedent was remembered by the Speaker, of Mr. Morris,
attorney of the wards, in 39 Eliz., who in like case changed his
opinion. Mem. in Hakew., 27.

[House Rules Manual -- House Document No. 104-272]
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[Page 257]
[DOCID:hrmanual-48]

The House of Representatives is governed in this respect by the
practice under clause 1 of rule XV.

sec. xlii.--titles.

Sec. 512. Amendments to the title of a bill.

After the bill
has passed, and not before, the title may be amended, and is to be fixed
by a question; and the bill is then sent to the other House.

[House Rules Manual -- House Document No. 104-272]
[From the U.S. Government Printing Office Online Database]
[Pages 257-260]
[DOCID:hrmanual-49]

The House of Representatives by rule XIX embodies this principle with
an additional provision as to debate.

sec. xliii.--reconsideration.

Sec. 513. Early Senate practice as to
reconsideration.

1798, Jan. A bill on its second reading being amended, and on
the question whether it shall be read a third time negatived, was
restored by a decision to reconsider that question. Here the votes of
negative and reconsideration, like positive and negative quantities in
equation, destroy one another, and are as if they were expunged from the
journals. Consequently the bill is open for amendment, just so far as it
was the moment preceding the question for the third reading; that is to
say, all parts of the bill are open for amendment except those on which
votes have been already taken in its present stage. So, also, it may be
recommitted.

[[Page 258]]

sent to the other House. But
where the paper remains, as on a bill rejected, when or under what
circumstances does it cease to be susceptible of reconsideration? This
remains to be settled, unless a sense that the right of reconsideration
is a right to waste the time of the House in repeated agitations of the
same question, so that it shall never know when a question is done with,
should induce them to reform this anomalous proceeding.

The rule permitting a reconsideration of a question affixing it to no
limitation of time or circumstance, it may be asked whether there is no
limitation? If, after the vote, the paper on which it is passed has been
parted with, there can be no reconsideration, as if a vote has been for
the passage of a bill and the bill has been

The House of Representatives provides for reconsideration by clause 1
of rule XVIII.

Sec. 514. Parliamentary law as to
reconsideration.

In Parliament a question once carried can not be questioned again
at the same session, but must stand as the judgment of the House.
Towns., col. 67; Mem. in Hakew., 33. * * *

[[Page 259]]

House and sent to the other and
there rejected, may be renewed again in that other, passed, and sent
back. Ib., 92; 3 Hats., 161. Or if, instead of being rejected, they read
it once and lay it aside or amend it and put it off a month, they may
order in another to the same effect, with the same or a different title.
Hakew., 97, 98.

Sec. 515. A bill once rejected not to be brought
up again at the same session.

* * * And a bill once rejected, another of the same
substance can not be brought in again the same session. Hakew., 158; 6
Grey, 392. But this does not extend to prevent putting the same question
in different stages of a bill, because every stage of a bill submits the
whole and every part of it to the opinion of the House as open for
amendment, either by insertion or omission, though the same amendment
has been accepted or rejected in a former stage. So in reports of
committees, e.g., report of an address, the same question is before the
House, and open for free discussion. Towns., col. 26; 2 Hats., 98, 100,
101. So orders of the House or instructions to committees may be
discharged. So a bill, begun in one

In the House of Representatives, with its rule for reconsideration,
there is rarely an attempt to bring forward a bill once rejected at the
same session. One instance is recorded (IV, 3384), but the House has
declined to consider a bill brought forward after a rejection (IV, 3384;
Mar. 9, 1910, p. 2966). The Committee on Rules may report as privileged
a resolution making in order the consideration of a measure of the same
substance as one previously rejected and to rescind or vacate the action
whereby the House had rejected a measure (Mar. 17, 1976, p. 6776; see
VIII, 3391); and a special order of business nearly identical to one
previously rejected by the House, but providing a different scheme for
general debate, was held not to violate this section (July 27, 1993, p.
----).

[[Page 260]]

may be taken up by another bill
or taken up in a different way. 6 Grey, 304, 316.

Sec. 516. Expedients for changing the effect
of bills once passed.

Divers expedients are used to correct the effects of this rule,
as, by passing an explanatory act, if anything has been omitted or ill
expressed, 3 Hats., 278, or an act to enforce and make more effectual an
act, &c., or to rectify mistakes in an act, &c., or a committee on one
bill may be instructed to receive a clause to rectify the mistakes of
another. Thus, June 24, 1685, a clause was inserted in a bill for
rectifying a mistake committed by a clerk in engrossing a bill of
supply. 2 Hats., 194, 6. Or the session may be closed for one, two,
three, or more days and a new one commenced. But then all matters
depending must be finished, or they fall, and are to begin de novo. 2
Hats., 94, 98. Or a part of the subject

Sec. 517. Exceptions to the rule against bringing up a
matter once rejected.

And in cases of the last magnitude this rule has not
been so strictly and verbally observed as to stop indispensable
proceedings altogether. 2 Hats., 92, 98. Thus when the address on the
preliminaries of peace in 1782 had been lost by a majority of one, on
account of the importance of the question and smallness of the majority,
the same question in substance, though with some words not in the first,
and which might change the opinion of some Members, was brought on again
and carried, as the motives for it were thought to outweigh the
objection of form. 2 Hats, 99, 100.

Sec. 518. Passage of supplementary bills.

A second bill may
be passed to continue an act of the same session or to enlarge the time
limited for its execution. 2 Hats., 95, 98. This is not in contradiction
to the first act.

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The House of Representatives has by a joint resolution corrected an
error in a bill that had gone to the President (IV, 3519).

<> A
bill from the other House is sometimes ordered to lie on the table. 2
Hats., 97.

sec. xliv.--bills sent to the other house.

[[Page 261]]

does not carry the amendment and bill to the
table, and other motions are in order to dispose of the Senate amendment
(Feb. 22, 1978, p. 4072).

This principle is recognized in the practice of the House of
Representatives, both as to Senate bills (IV, 3418, 3419; V, 5437), and
as to House bills returned with Senate amendments (V, 5424, 6201-6203).
The motion to lay on the table Senate amendments to a House bill does
not take precedence over the motion to recede and concur, since the
motion would table the entire bill (Speaker Longworth, Jan. 24, 1927, p.
2165), but the motion to lay on the table a motion to recede and concur
in a Senate amendment

Sec. 520. Requests for information from the other
House.

When bills passed in one House and sent to the other are ground on special
facts requiring proof, it is usual, either by message or at a
conference, to ask the grounds and evidence, and this evidence, whether
arising out of papers or from the examination of witnesses, is
immediately communicated. 3 Hats., 48.

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The Houses of Congress transmit with bills accompanying papers, which
are returned when the bills pass or at final adjournment (V, 7259,
footnote). Sometimes one House has asked, by resolution, for papers from
the files of the other (V, 7263, 7264). Testimony is also requested
(III, 1855).

sec. xlv.--amendments between the houses.

[[Page 262]]

less. 3 Hats., 268, 270. The term of insisting, we are told by Sir John
Trevor, was then (1679) newly introduced into parliamentary usage by the
Lords. 7 Grey, 94. It was certainly a happy innovation, as it multiplies the
opportunities of trying modifications which may bring the Houses to a
concurrence. Either House, however, is free to pass over the term of
insisting, and to adhere in the first instance; 10 Grey, 146; but it is
not respectful to the other. In the ordinary parliamentary course there
are two free conferences, at least, before an adherence. 10 Grey, 147.

Sec. 521. Parliamentary principles as to
disagreeing, insisting, and adhering.

When either House, e.g., the House of
Commons, send a bill to the other, the other may pass it with
amendments. The regular progression in this case is, that the Commons
disagree to the amendment; the Lords insist on it; the Commons insist on
their disagreement; the Lords adhere to their amendment; the Commons
adhere to their disagreement. The term of insisting may be repeated as
often as they choose to keep the question open. But the first adherence
by either renders it necessary for the other to recede or adhere also;
when the matter is usually suffered to fall. 10 Grey, 148. Latterly,
however, there are instances of their having gone to a second adherence.
There must be an absolute conclusion of the subject somewhere, or
otherwise transactions between the Houses would become end-

The House of Representatives and the Senate follow the principles set
forth in this paragraph of the parliamentary law, and sometimes dispose
of differences without resorting to conferences (V, 6165).

Sec. 522. Insisting and adhering in the practice of
the House.

Where both Houses insist and neither ask a conference nor recede, the
bill fails (V, 6228). Where both Houses adhere, the bill fails (V, 6163,
6313, 6324, 6325) even though the difference may be over a very slight
amendment (V, 6233-6240). In rare instances in Congress there have been
immediate adherences on the first disagreement (V, 6303); but this does
not preclude the granting of the request of the other House for a
conference (V, 6241-6244). Sometimes the House recedes from its
disagreement as to certain amendments and adheres as to others (V,
6229). A House having adhered may at the next stage vote to further
adhere (V, 6251). Sometimes the House has receded from adherence (V,
6252, 6401) or reconsidered its action of adherence (V, 6253), after
which it has agreed to the amendment with or without amendment (V, 6253,
6401).

[[Page 263]]

Sec. 523. Parliamentary law as to receding.

Either House may
recede from its amendment and agree to the bill; or recede from their
disagreement to the amendment, and agree to the same absolutely, or with
an amendment; for here the disagreement and receding destroy one
another, and the subject stands as before the disagreement. Elysnge, 23,
27; 9 Grey, 476.

Sec. 524. Practice of the House as to receding from its
own amendment to a bill of the other House.

In the practice of the two Houses
of Congress the motion is to recede from the amendment without at the
same time agreeing to the bill, for the bill has already been passed
with the amendment, and receding from the amendment leaves the bill
passed (V, 6312). But where the House has previously concurred in a
Senate amendment with an amendment, the House does not by receding from
its amendment agree to the Senate amendment, since the House may then
(1) concur in the Senate amendment or (2) concur in the Senate amendment
with another amendment (VIII, 3199; Oct. 12, 1977, pp. 33448-54). The
House may not through one motion, however, recede from its amendment
with an amendment (V, 6212; see Sec. 526, infra). A motion in the House
to recede from a House amendment to a Senate amendment, and concur in
the Senate amendment, is divisible (VIII, 3199). One House has receded
from its own amendment after the other House had returned it concurred
in with an amendment (V, 6226). But this has been held not sufficient to
pass the bill without further action by House which has concurred with
an amendment (VIII, 3177; June 26, 1984, pp. 18733-34).

Where one House has receded from an amendment, it may not at a
subsequent stage recall its action in order to form a new basis for a
conference (V, 6251). Sometimes one House has receded from its amendment
although it had previously insisted and asked a conference which had
been agreed to (V, 6319). After the Senate has amended a House amendment
it is not proper for the House to recede from its amendment directly,
but the Senate may recede from its amendment and then the House recede
from its amendment (Speaker Reed, June 12, 1890, p. 5981). The motion to
recede takes precedence over the motion to insist and ask a conference
(V, 6270).

Sec. 525. Practice of the House as to receding
from disagreement to amendment of the other House.

By receding from its
disagreement to an amendment of the Senate the House does not thereby
agree to it (V, 6215); but the Senate amendment is then open to
amendment precisely as before the original disagreement (V, 6212-6214).
The stage of disagreement having been reached, the motion to recede and
concur takes precedence of the motion to recede and concur with an
amendment (V, 6219-6223; VIII, 3198, 3200, 3202); but a motion to recede
and concur is divisible (VIII, 3199) and being divided and the House
having receded, a motion to amend has precedence of the motion to concur
(V, 6209-6211; VIII, 3198), even after the previous question is ordered
on both motions before being divided (Feb. 12, 1923, p. 3512).

[[Page 264]]

concur, a motion to amend is not in order (V, 5488); but where
the previous question has been demanded on a motion to insist, a motion
to recede and concur has been admitted (V, 6208, 6321a).

The motion to recede and concur in a Senate amendment with an
amendment takes precedence of a motion to insist further on the House's
disagreement to the Senate amendment (V, 6224; VIII, 3204), and a motion
to lay certain amendments on the table (Speaker Longworth, Jan. 24,
1927, p. 2165). It has been held that after the previous question has
been moved on a motion to adhere, a motion to recede may not be made (V,
6310); and after the previous question is demanded or ordered on a
motion to

Sec. 526. One House not to recede from its own
amendment with an amendment; or depart from form fixed by
adherence.

But the House can not recede from or insist on its own amendment,
with an amendment; for the same reason that it can not send to the other
House an amendment to its own act after it has passed the act. They may
modify an amendment from the other House by ingrafting an amendment on
it, because they have never assented to it; but they can not amend their
own amendment, because they have, on the question, passed it in that
form. 9 Grey, 363; 10 Grey, 240. In Senate, March 29, 1798. Nor where
one House has adhered to their amendment, and the other agrees with an
amendment, can the first House depart from the form which they have
fixed by an adherence.

[[Page 265]]

In the case of a money bill, the Lord's proposed amendments become, by
delay, confessedly necessary. The Commons, however, refused them as
infringing on their privilege as to money bills; but they offered
themselves to add to the bill a proviso to the same effect, which had no
coherence with the Lords' amendments; and urged that it was an expedient
warranted by precedent, and not unparliamentary in a case become
impracticable, and irremediable in any other way. 3 Hats., 256, 266,
270, 271. But the Lords refused, and the bill was lost. 1 Chand., 288. A
like case, 1 Chand., 311. * * *

In the House of Representatives it is a recognized principle that the
House may not recede from its own amendments with an amendment (V, 6216-
6218). The House may not amend its own amendment to a Senate amendment
to a House bill (Mar. 16, 1934, p. 4685). However, the stage of
disagreement having been reached on a House amendment to a Senate
amendment to a House proposition, the House may first recede from its
amendment and, having receded, may then concur in the Senate amendment
with a different amendment without violating this paragraph (Speaker
O'Neill, Oct. 12, 1977, pp. 33448-54).

Sec. 527. Text to which both Houses have agreed
not to be changed.

* * * So the Commons resolved that it is unparliamentary to
strike out, at a conference, anything in a bill which hath been agreed
and passed by both Houses, 6 Grey, 274; 1 Chand., 312.

The practice of the two Houses has confirmed this principle of the
parliamentary law and established the rule that managers of a conference
may not change the text to which both Houses have agreed (V, 6417, 6418,
6420; VIII, 3257; see clause 3 of rule XXVIII), and neither House,
alone, may empower the managers by instruction to make such a change (V,
6388). In the earlier practice, when it was necessary to change text
already agreed to, the managers appended a supplementary paragraph to
their report, and this was agreed to by unanimous consent in the two
Houses (V, 6433-6436); or the two Houses agreed to a concurrent
resolution giving the managers the necessary powers (V, 6437-6439; Dec.
17, 1974, p. 40472). Under the current practice the House considers a
conference report that changes text already agreed to by unanimous
consent, under suspension of the rules, or by report from the Committee
on Rules waiving clause 3 of rule XXVIII.

To change text finally agreed to by both Houses, each House may adopt
a concurrent resolution directing the Clerk of the House or the
Secretary of the Senate to correct the enrollment. Such a concurrent
resolution may be considered by unanimous consent, under suspension of
the rules, or by report from the Committee on Rules.

[[Page 266]]

<> A motion to amend an amendment from the other
House takes precedence of a motion to agree or disagree.

The further principle has been established in practice of the House of
Representatives that it may not, even by unanimous consent (V, 6179),
change in the slightest particular (V, 6181) the text to which both
Houses have agreed (V, 6180; VIII, 3257). And this prohibition extends,
also, to a case wherein it is proposed to add a new section at the end
of a bill which has passed both Houses (V, 6182).

This is the rule of the House of Representatives where the stage of
disagreement has not been reached (V, 6164, 6169-71; VIII, 3202), or
when the House has receded from its disagreement to the amendment in
question (VIII, 3196, 3197, 3203). The following discussion summarizes
the precedence and consideration of motions to dispose of Senate or
House amendments in contemporary practice.

Sec. 528a. Consideration of Senate or House
amendments.

When Senate amendments are before the House for the first time, or
when the Senate has returned a bill with House amendments to which it
has disagreed (and on which the House has not insisted), no privileged
motion is in order in the House except a motion pursuant to clause 1 of
rule XX, made by direction of the committee with subject-matter
jurisdiction, to disagree to the Senate amendments or insist on the
House amendment and request or agree to a conference with the Senate
(see Oct. 11, 1984, p. 32308). Other motions to dispose of amendments
between the Houses are not privileged until the stage of disagreement
has been reached on a bill with amendments of the other House (IV, 3149,
3150; VI, 756; VIII, 3185, 3194). The stage of disagreement is not
reached until the House has either disagreed to Senate amendments or has
insisted on its own amendments to a Senate bill, and has notified the
Senate. Further House action can only occur when the House has received
the papers back from the Senate (Sept. 16, 1976, p. 30868).

Prior to the stage of disagreement, an amendment to a Senate amendment
to a House passed measure on the Speaker's table is not in order until
unanimous consent is granted for immediate consideration of the Senate
amendment in the House (Speaker O'Neill, June 19, 1986, pp. 14638-40).

If the House does agree to consider a bill with Senate amendments
before the stage of disagreement has been reached, by unanimous consent
or special order, a motion to amend takes precedence over the motion to
agree. However, the usual practice in such a situation is to consider a
request, either by unanimous consent, suspension of the rules, or
special order reported by the Committee on Rules, simultaneously
providing for consideration and disposition of the Senate amendment
(thus precluding the consideration of other requests to dispose of the
amendment (see Procedure, ch. 32, sec. 5).

[[Page 267]]

the vast majority of legislation does affect the Treasury (as described in
clause 1 of rule XIII) and requires consideration in Committee of the
Whole.
It should be noted that a small category of Senate amendments, those
not requiring consideration in the Committee of the Whole, may be taken
from the Speaker's table and disposed of by motion pursuant to clause 2
of rule XXIV before the stage of disagreement has been reached, but

Sec. 528b. Precedence of motions before the stage
of disagreement.

Should the House consider Senate amendments before the stage of
disagreement, the precedence of motions is as follows (disregarding the
most privileged motion, to disagree and send to conference by direction
of the committee): (1) to concur with an amendment or amendments; (2) to
concur; (3) to disagree and request or agree to a conference; and (4) to
disagree. With respect to consideration of House amendments before the
stage of disagreement, the precedence of motions is (1) to recede; (2)
to insist and request or agree to a conference; and (3) to insist. While
the House may adhere, adherence is seldom utilized (since it precludes a
conference unless receded from) and is extremely rare on first
disagreement (see Sec. 522, supra; see also the discussion of adherence
in Procedure, ch. 32, sec. 12.1). A motion to adhere is the least
privileged motion.

It was formerly held that a motion to send to conference yielded to
the simple motion to disagree, or to insist (see Cannon's Procedure in
the House of Representatives, p. 120). In current practice, however, the
compound motion to disagree to Senate amendments and request or agree to
a conference, or to insist on House amendments and request or agree to a
conference, has replaced the two-step procedure for getting to
conference and, since it brings the two Houses together, takes
precedence over simple motions to insist or disagree (or to adhere).

Notwithstanding the foregoing precedence of motions, the ordinary
motions applicable to any question which is under debate--to table, to
postpone to a day certain, and to refer--remain privileged under clause
4 of rule XVI. A motion to table Senate amendments brings the bill to
the table (V, 5424, 6201-03; Sept. 28, 1978, p. 32334). It must also be
noted that before consideration of any motions to dispose of Senate
amendments, the Speaker has the discretionary authority, under clause 2
of rule XXIV, to refer such amendments to the appropriate committee,
with or without a time limitation for committee consideration. It has
been held that before the stage of disagreement, the motion to table the
Senate amendment or amendments (V, 6201-03) or the motion to refer the
Senate amendment or amendments (V, 5301, 6172, 6174) take precedence (in
that order) over motions to amend, agree, or disagree. And if the
previous question has been ordered on another motion to dispose of the
Senate amendment, a motion to refer is in order (V, 5575).

[[Page 268]]

an amendment, insisted on the House amendment and requested a
conference, and the Senate has then concurred in the House amendment
with a further amendment, the matter is privileged for further
disposition in the House since the House has communicated to the Senate
its insistence and request for a conference (Sept. 16, 1976, p. 20868).
Of course, if the Senate has agreed to a House request for a conference,
the bill is committed to conference and motions are not in order for its
disposition until after the conferees have reported (the House may
unilaterally discharge its conferees and consider the bill, where in
possession of the papers, only by unanimous consent and not by motion).

Sec. 528c. Reaching the stage of disagreement.

The House has
reached the stage of disagreement on a bill when it is again in
possession of the papers thereon, having previously disagreed to Senate
amendments or insisted on House amendments (with or without requesting
or agreeing to a conference). Only previous insistence or disagreement
by the House itself places the House in disagreement (and not merely
disagreement, insistence, or amendment by the Senate). For example,
where the House has concurred in a Senate amendment to a House bill with

Once the stage of disagreement has been reached on a bill with
amendments, the House remains in the stage of disagreement until the
matter is finally disposed of and motions for its disposition are
privileged whenever the House is in possession of the papers. This
principle applies both where the stage of disagreement is reached
without a conference, and where matters remain in disagreement after
conferees have reported. It is possible, therefore, for motions to be
privileged since the House is in disagreement on the bill, but for the
House to have receded from its disagreement or insistence on a
particular amendment or to have received a new Senate amendment for the
first time. In those cases motions remain privileged, but the precedence
of motions on the amendment in question reverts to the precedence of
motions before the stage of disagreement, as set forth in Sec. 528b,
supra (see discussion below of the effect of the House receding). The
two Houses having permitted the amendment process to go beyond the
second degree, a motion to concur in a Senate amendment (in the 4th
degree), the stage of disagreement having been reached, is privileged
but is subject to the motion to lay on the table (Mar. 18, 1986, p.
5217).

[[Page 269]]

ch. 32, sec. 7.8 and 7.9). The ordinary motion to table under clause 4
of rule XVI may be applied to a Senate amendment but carries the bill
to the table; when applied to a motion to dispose of a Senate amendment,
the motion to table carries to the table only the motion to dispose
and not the amendment or bill (see Procedure, ch. 32, sec. 7.6).
With respect to the motion to refer (or recommit), a simple motion
to refer or recommit only takes precedence over a motion to adhere,
after the stage of disagreement has been reached on the bill. After the
previous question is ordered on a pending motion to dispose of a Senate
amendment, a motion to recommit (pursuant to clause 4 of rule XVI or
clause 1 of rule XVII) may only be offered if it constitutes, in effect,
a motion which takes precedence over the pending motion to dispose of a
Senate amendment. Thus, after the stage of disagreement has been reached on a
Senate amendment, a motion to recommit with instructions to report back
forthwith with an amendment may not be offered after the previous
question has been ordered on a motion to recede and concur, a motion of
higher privilege (see Procedure, ch. 23, sec. 12.8). But after the House
has receded from disagreement to a Senate amendment, a motion to amend
is preferential over a motion to agree, and thus after the previous
question is ordered on a motion to concur, the House having already
receded, a motion to recommit with instructions to amend would be in
order (VIII, 2744). Motions to postpone, either to a day certain or
indefinitely, may be presumed to have the lowest privilege with respect
to a Senate amendment after the stage of disagreement has been reached.
For old examples where the House postponed indefinitely consideration of
Senate amendments, see V, 6199, 6200 (in the latter case the Senate had
adhered).

Sec. 528d. Precedence of motions after the
stage of disagreement.

Generally, after the stage of disagreement has been reached on a
Senate amendment, the precedence of motions is as follows: (1) to recede
and concur; (2) to recede and concur with an amendment or amendments;
(3) to insist on disagreement and request a (further) conference; (4) to
insist on disagreement; and (5) to adhere. The Chair may examine the
substance of a pending motion to determine the order of voting thereon
in relation to another motion, even though in form it may appear
preferential. Thus, a proper motion to concur with an amendment to a
Senate amendment reported from conference in disagreement (the House
having receded) has been offered and voted on before a pending motion
drafted as one to concur with an amendment but in actual effect a motion
to insist on disagreement to the Senate amendment, since simply
reinserting the original House text without change (July 2, 1980, pp.
18357-61, sustained by tabling of appeal; see Procedure,

Where the matter in question is a House amendment or amendments after
the stage of disagreement has been reached, the precedence of motions is
(1) to recede; (2) to further insist on the amendment and request a
(further) conference; and (3) to adhere. For discussion of possible
options of the House, having receded from its amendment or amendments,
see Sec. 524, supra, and Procedure, ch. 32, sec. 10.1. If the House
recedes from its amendment to a Senate bill, the bill is passed unless
otherwise specified. If the House recedes from its amendment to a Senate
amendment, the bill is not passed unless the House takes another step,
either to concur in the Senate amendment or amend it. The House having
receded from its amendment to a Senate amendment, it is no longer in
disagreement on the amendment (although it is on the bill if the stage
of disagreement has previously been reached), and the motion to amend
the Senate amendment takes precedence over the motion to concur therein.
Until the House recedes, however, a motion to recede from the House
amendment and concur in the Senate amendment is preferential.

[[Page 270]]

ch. 32, sec. 8, a Member offering a preferential
motion does not thereby gain control of the debate, which remains in the
control of the floor manager recognized to offer the original motion to
dispose of amendments between the Houses (and which is divided equally
between the majority and minority floor managers with respect to
amendments reported from conference in disagreement under clause 2(b) of
rule XXVIII). Recognition to offer a preferential motion goes to the
senior committee member seeking the floor who is not the offeror of a
displaced motion of lesser privilege (Nov. 16, 1989, p. 29565).

The same principle as to the precedence of motions after a division of
the question applies to a motion to recede and concur in a Senate
amendment, the stage of disagreement having been reached. While the
motion to recede and concur takes precedence over the motion to recede
and concur with an amendment, the former motion may be divided on the
demand of any Member. If the House agrees to recede, a motion to concur
with an amendment then takes precedence over the motion to concur, is
considered as pending if part of the original motion, and is voted on
first (Sept. 30, 1988, pp. 27265-74; Oct. 11, 1989, p. 24097). As
indicated in Procedure,

Sec. 529. Degree of amendments between the
Houses.

A bill originating in one House is passed by the other with an
amendment. The originating House agrees to their amendment with an
amendment. The other may agree to their amendment with an amendment,
that being only in the 2d and not the 3d degree; for, as to the amending
House, the first amendment with which they passed the bill is a part of
its text. It is the only text they have agreed to. The amendment to that
text by the originating House therefore is only in the 1st degree, and
the amendment to that again by the amending House is only in the 2d, to
wit, an amendment to an amendment, and so admissible. Just so, when, on
a bill from the originating House, the other, at its second reading,
makes an amendment; on the third reading this amendment is become the
text of the bill, and if an amendment to it be moved an amendment to
that amendment may also be moved, as being only in the 2d degree.

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[[Page 271]]

This principle is followed in the practice of the House of
Representatives (V, 6176, 6177, 6178). For a discussion of the attitude
of the Senate on this topic, see October 31, 1991 (p. 29494).

sec. xlvi.--conferences.

Sec. 530. Parliamentary law as to asking
conferences.

It is on the occasion of amendments between the Houses that
conferences are usually asked; but they may be asked in all cases of
difference of opinion between the two Houses on matters depending
between them. The request of a conference, however, must always be by
the House which is possessed of the papers. 3 Hats., 31; 1 Grey, 425.

The House of Representatives follows the principles set forth in this
paragraph of the parliamentary law. A conference may be asked on only a
portion of the amendments in disagreement, leaving the differences as to
the remainder to be settled by the action of the two Houses themselves
(V, 6401). In very rare instances conferences have been asked by one
House after the other has absolutely rejected a main proposition (IV,
3442; V, 6258). A difference over an amendment to a proposed
constitutional amendment may be committed to a conference (V, 7037).

Sec. 531. Conferences over matters other
than differences as to amendments.

While conferences between the two Houses of Congress
are usually held over differences as to amendments to bills,
occasionally differences arise as to the respective prerogatives of the
Houses (II, 1485-1495) or as to matters of procedures (V, 6401), as in
impeachment proceedings (III, 2304), which are referred to conference.
In early and exceptional instances conferences have been asked as to
legislative matters when no propositions relating thereto were pending
(V, 6255-6257).

Sec. 532. Conferences by means of select
committees.

In very rare cases, also, the Houses interchange views and come to
conclusions by means of select committees appointed on the part of each
House (I, 3). Thus, in 1821, a joint committee was chosen to consider
and report to the two Houses whether or not it was expedient to provide
for the admission of Missouri into the Union (IV, 4471), and in 1877
similar committees were appointed to devise a method for counting the
electoral vote (III, 1953).

[[Page 272]]

that an omission to do so has even raised a question (V,
6273). Yet it can not be said that the practice requires a request for a
conference to be made by the House disagreeing to the amendments of the
other (V, 6274-6277). One House having asked a conference at one
session, the other House may agree to the conference at the next session
of the same Congress (V, 6286).

Sec. 533. Requests for conferences.

The parliamentary law
provides that the request for a conference must always be by the House
which is possessed of the papers (V, 8254). It was formerly the more
regular practice for the House disagreeing to amendments of the other to
leave the asking of a conference to that other House if it should decide
to insist (V, 6278-6285, 6324); but it is so usual in the later practice
for the House disagreeing to an amendment of the other to ask a
conference

Sec. 534. Requests for conferences declined or
neglected.

In rare instances one House has declined the request of the other
for a conference (V, 6313-6315; Mar. 20, 1951, p. 2683), sometimes
accompanying it by adherence (V, 6313, 6315). In one instance, where the
Senate declined a conference, it transmitted, by message, its reasons
for so doing (V, 6313). Sometimes, also, one House disregards the
request of the other for a conference and recedes from its disagreement,
thereby rendering a conference unnecessary (V, 6316-6318). And in one
case, where one House has asked a conference to which the other has
assented, the asking House receded before the conference took place (V,
6319). Also, a bill returned to the House with a request for a
conference has been postponed indefinitely (V, 6199).

Sec. 535. Motions to request conferences.

After the stage of
disagreement has been reached, a motion to ask a conference is
considered as distinct from motions to agree or disagree to amendments
of the other House (V, 6268) and the motions to agree, recede, or insist
are considered as preferential (V, 6269, 6270). Where a motion to
request a conference at this stage has been rejected, its repetition at
the same stage of the proceedings, no other motion to dispose of the
matter in disagreement having been considered, has not been permitted
(V, 6325). Where a conference results in disagreement, a motion to
request a new conference is privileged (V, 6586). Sometimes
disagreements are voted on by the House and conferences asked through
the medium of special orders (IV, 3242-3249).

Before the stage of disagreement, any motion with respect to
amendments between the two Houses is without privilege, except for
motions with respect to the limited number of amendments that qualify
under clause 2 of rule XXIV or motions under clause 1 of rule XX, to
disagree to Senate amendments (or insist on House amendments) and to
request or agree to an initial conference if the motion is authorized by
the Committee which reported the bill and if the Speaker, in his
discretion, recognizes for that purpose. A motion under the latter
clause may be repeated, if again authorized by the committee concerned,
and if the Speaker again agrees to recognize for that purpose, even
though the House has once rejected a motion to send the same matter to
conference (Speaker Albert, Oct. 3, 1972, pp. 33502-03).

[[Page 273]]

which acts by a majority (V, 6334). The Speaker appoints the managers
on the part of the House (clause 6(f) of rule X) and has discretion as
to the number to serve on a given bill (V, 6336; VIII, 2193) but must
appoint (1) a majority of Members who generally support the House
position, as determined by the Speaker; (2) Members who are primarily
responsible for the legislation; and (3) to the fullest extent feasible
the principal proponents of the major provisions of the bill as it
passed the House (clause 6(f) of rule X). While the practice used to be
to appoint three managers from each house (V, 6336), in the absence of
joint rules each House may appoint whatever number it sees fit (V, 6328-
6330). The two Houses have frequently appointed a disparate number of
managers (V, 6331-6333; VIII, 3221); and where the Senate appointed nine
and the House but three, a motion to instruct the Speaker to appoint a
greater number of managers on the part of the House was held out of
order (VII, 2193). In appointing managers the Speaker usually consults
the Member in charge of the bill (V, 6336); and where an amendment in
disagreement falls within the jurisdiction of two committees of the
House, the Speaker has named Members from both committees and specified
the respective areas on which they were to confer (Speaker Albert, Nov.
30, 1971, p. 43422). In appointing conferees on the general
appropriation bill for fiscal year 1951, Speaker Rayburn appointed a set
of managers for each chapter of the bill and four Members to sit on all
chapters (Aug. 7, 1950, p. 11894). While the appointment of conferees,
both as to their number and composition, is within the discretion of the
Chair (Speaker Martin, July 8, 1947, p. 8469; Speaker Garner, June 24,
1932, p. 13876), and while a point of order will not lie against his
exercise of this discretion (VIII, 2193, 3221), the Speaker normally
takes into consideration the attitude of the majority and minority of
the House on the disagreements in issue (V, 6336-6338; VIII, 3223), the
varying views of the members of the House (V, 6339, 6340), and does not
necessarily confine his appointments to members of the committee in
charge of the bill (V, 6370). In one case, where the prerogatives of the
House were involved, all of the managers were appointed to represent the
majority opinion (V, 6338). See also Sec. 701e, infra.

Sec. 536. Managers of conferences.

While usual, it is not
essential that one House, in asking a conference, transmit the names of
its managers at the same time (V, 6405). The managers, properly so
called (V, 6335), constitute practically two distinct committees, each
of

Sec. 537. Reappointment of, at second and
subsequent conferences.

Where there were several conferences on a bill, it was the
early practice to change the managers at each conference (V, 6288-6291,
6324), and so fixed was this practice that their reappointment had a
special significance, indicating an unyielding temper (V, 6352-6368);
but in the later practice it is the rule to reappoint managers (V, 6341-
6344) unless a change be necessary to enable the sentiment of the House
to be represented (V, 6369).

[[Page 274]]

6372; VIII, 3228). Where one House makes a change in its managers,
it informs the other House, by message (V, 6377, 6378). According to the
later practice the powers of managers who have not reported do not
expire by reason of the termination of a session of Congress, unless it
be the last session (V, 6260-6262).

Sec. 538. Vacancies, etc., in managers of
conferences.

Managers of a conference are excused from service either by authority
of the House (V, 6373-6376; VIII, 3224, 3227) or, since the 103d
Congress, by removal by the Speaker (clause 6(f) of rule X). The absence
of a manager may cause a vacancy, which the Speaker fills by appointment (V,

Sec. 539. Parliamentary law as to free and simple
conferences.

Conferences may be either simple or free. At a conference simply,
written reasons are prepared by the House asking it, and they are read
and delivered, without debate, to the managers of the other House at the
conference, but are not then to be answered. 4 Grey, 144. The other
House then, if satisfied, vote the reasons satisfactory, or say nothing;
if not satisfied they resolve then not satisfactory and ask a conference
on the subject of the last conference, where they read and deliver, in
like manner, written answer to those reasons. 3 Grey, 183. They are
meant chiefly to record the justification of each House to the nation at
large and to posterity and in proof that the miscarriage of a necessary
measure is not imputable to them. 3 Grey, 255. At free conferences the
managers discuss, viva voce and freely, and interchange propositions for
such modifications as may be made in a parliamentary way, and may bring
the sense of the two Houses together. * * *

[[Page 275]]

the body appointing it'' (V, 6403). And where
the House had asked a free conference it was held not in order to
instruct the managers (V, 6384). But it is very rare for the House in
asking a conference to specify whether it shall be free or simple.

Sec. 540. Free and simple conferences in modern
practice.

This provision of the parliamentary law bears little relation to the modern
practice of the two Houses of Congress, and that practice has evolved a
new definition: ``A free conference is that which leaves the committee
of conference entirely free to pass upon any subject where the two
branches have disagreed in their votes, not, however, including any
action upon any subject where there has been a concurrent vote of both
branches. A simple conference--perhaps it should more properly be termed
a strict or a specific conference, though the parliamentary term is
`simple'--is that which confines the committee of conference to the
specific instructions of

[[Page 276]]

Sec. 541. Instruction of managers of a
conference.

In their practices as to the instruction of managers of a conference, the
House of Representatives and the Senate do not agree. Only in rare
instances has the Senate instructed (V, 6398), and these instances are
at variance with its declaration, made after full consideration, that
managers may not be instructed (V, 6397). And where the House has
instructed its managers, the Senate sometimes has declined to
participate and asked a free conference (V, 6402-6404). In the later
practice the House does not inform the Senate when it instructs its
managers (V, 6399), the Senate having objected to the transmittal of
instructions by message (V, 6400, 6401). In one instance where the
Senate learned indirectly that the House had instructed its managers, it
declared that the conference should be full and free, and instructed its
own managers to withdraw if they should find the freedom of the
conference impaired (V, 6406). But the House of Representatives holds to
the opinion that the House may instruct its managers (V, 6379-6382),
although the propriety of doing so at a first conference has been
questioned (V, 6388, footnote). And in rare instances where a free
conference is asked instruction is not in order (V, 6384). At a new
conference the instructions of a former conference are not in force (V,
6383; VIII, 3240). And instructions may not direct the managers to do
that which they might not otherwise do (V, 6386, 6387; VIII, 3235,
3244), as to effect a change in part of a bill not in disagreement (V,
6391-6394) or change the text to which both Houses have agreed (V,
6388). Although managers may disregard instructions, their report may
not for that reason be ruled out of order (V, 6395; VIII, 3246; June 8,
1972, p. 20282), and when a conference report is recommitted with
instructions the managers are not confined to the instructions alone
(VIII, 3247). The motion to instruct managers should be offered after
the vote to ask for or agree to a conference and before the managers are
appointed (V, 6379-6382; VIII, 3233, 3240, 3256). The motion to instruct
may be amended unless the previous question is ordered (V, 6525; VIII,
3231, 3240); thus a motion to instruct House conferees to agree to a
numbered Senate amendment with an amendment may be amended, upon
rejection of the previous question, to instruct the conferees to agree
to the Senate amendment (June 9, 1982, pp. 13027, 13028, 13039, 13049).
The motion to instruct may be laid on the table without carrying the
bill to the table (VIII, 2658). The motion is debatable (see clause 1(b)
of rule XXVIII) unless the previous question is ordered (VIII, 2675,
3240). After a motion to ask or agree to a conference is agreed to, only
one valid motion to instruct is in order (VIII, 3236; Speaker Wright,
Feb. 17, 1988, p. 1583); but this restriction does not apply to a motion
to instruct under clause 1(c) of rule XXVIII (Aug. 22, 1935, pp. 14162-
64).

A member of the minority is first entitled to recognition for a motion
to instruct conferees (Speaker Bankhead, Oct. 31, 1939, pp. 1103-05;
Speaker Albert, Oct. 19, 1971, pp. 36832-35), and where two minority
members of the reporting committee seek recognition to offer a motion to
instruct conferees prior to their appointment, the Chair will recognize
the senior minority member of the committee (Oct. 10, 1986, p. 30181;
Speaker Wright, Feb. 17, 1988, p. 1583). The ruling out of a motion to
instruct conferees does not preclude the offering of a proper motion to
instruct (VIII, 3235), but one motion to instruct having been considered
and disposed of, further motions to instruct are not in order (VIII,
3236). Such additional instructions should have been offered as
amendments to the original motion to instruct.

Sec. 542. Parliamentary law as to reports of
managers of a conference.

* * * And each party report in writing to their respective
Houses the substance of what is said on both sides, and it is entered in
their journals. 9 Grey, 220; 3 Hats; 280. This report can not be amended
or altered, as that of a committee may be. Journal Senate, May 24, 1796.

[[Page 277]]

on as part of the report (V, 6465-6467; see also clause 3 of rule XXVIII).
A quorum among the managers on the part of the House at a committee of
conference is established by their signatures on the conference report
and joint explanatory statement (Oct. 4, 1994, p. ----).

Sec. 543. Forms of conference reports.

In the two Houses of
Congress conference reports were originally merely suggestions for
action and were neither identical in the two Houses nor acted on as a
whole (V, 6468-6471). In the House of Representatives, rule XXVIII
provides that conference reports may be received at any time, except
when the Journal is being read, while the roll is being called or the
House is dividing. They are privileged on or after the third calendar
day (excluding Saturdays, Sundays, or legal holidays) after they have
been filed and printed in the Record, together with the accompanying
statement (clause 2 of rule XXVIII). The early reports were not signed
by the managers (IV, 3905); but in the later practice the signatures of
the majority of the managers of each House is required (V, 6497-6502;
VIII, 3295). Sometimes a manager indorses the report with a conditional
approval or dissent (V, 6489-6496, 6538), but supplemental reports or
minority views may not be filed in connection with conference reports
(VIII, 3302). The name of an absent manager may not be affixed, but the
two Houses by concurrent action may authorize him to sign the report
after it has been acted on (V, 6488). The minority portion of the
managers of a conference have no authority to make either a written or
verbal report concerning the conference (V, 6406). In the later practice
reports of managers are identical, and made in duplicate for the two
Houses, the House managers signing first the report for their House and
the Senate managers signing the other report first (V, 6323, 6426, 6499,
6500, 6504). Under certain circumstances managers may report an entirely
new bill on a subject in disagreement, but this bill is acted

Sec. 544. Partial conference reports.

Managers may report an
agreement as to a portion of the numbered amendments in disagreement,
leaving the remainder to be disposed of by subsequent action (V, 6460-
6464).

Sec. 545. Reports of inability to agree.

Where managers of a
conference are unable to agree, or where a report is disagreed to in
either House, another conference is usually asked (V, 6288-6291). When
managers report that they have been unable to agree, the report is not
acted on by the House of Representatives (V, 6562; VIII, 3329, Aug. 23,
1957, p. 15816). While under the earlier practice, when conferees
reported in complete disagreement, the amendments in disagreement were
considered available for immediate disposition (VIII, 3299, 3332), the
current practice (as a result of the amendment to clause 2(b) of rule
XXVIII that became effective in the 93d Congress) is to require the
matter to lay over until the third calendar day (excluding Saturdays,
Sundays, or legal holidays) after the report in disagreement is filed
and printed in the Record. In the earlier practice reports of inability
to agree were made verbally or by unsigned written reports (V, 6563-
6567); but in later practice they are written, in identical form, and
signed by the managers of the two Houses (V, 6568, 6569).

[[Page 278]]

Sec. 546. Managers restricted to the
disagreements of the two Houses.

The managers of a conference must confine
themselves to the differences committed to them (V, 6417, 6418; VIII,
3252, 3255, 3282), and may not include subjects not within the
disagreements (V, 6407, 6408; VIII, 3253-3255, 3260, 3282, 3284), even
though germane to a question in issue (V, 6419; VIII, 3256; Speaker
Albert, Dec. 20, 1974, p. 41849). But they may perfect amendments
committed to them if they do not in so doing go beyond the differences
(V, 6409, 6413). Thus, where an amendment providing an appropriation to
construct a road had been disagreed to, it was held in order to report a
provision to provide for a survey for the road (V, 6425). Managers may
not change the text to which both Houses have agreed (V, 6417, 6418,
6420, 6433-6436). But where the amendment in issue strikes out all of
the bill after the enacting clause and substitutes a new text, the
managers have the whole subject before them and may exercise a broad
discretion as to details (V, 6424; VIII, 3266), and may even report an
entirely new bill on the subject (V, 6421, 6423; VIII, 3248, 3263, 3265,
3276; see also Sec. 913). Where the amendment in disagreement proposes a
substitute differing greatly from the House provision they may eliminate
the entire subject matter (Speaker Gillett, Sept. 14, 1922, p. 12598).

Sec. 547. Remedy where managers exceed their
authority.

In the House of Representatives the Speaker may rule out a
conference report if it be shown that the managers have exceeded their
authority (V, 6409-6416; VIII, 3256; Oct. 4, 1962, pp. 22332-33). In the
House points of order against reports are made or reserved after the
report is read and before the reading of the statement (V, 6424, 6441;
VIII, 3282, 3284, 3285, 3287), or consideration begins (V, 6903-6905;
VIII, 3286), and comes too late after the report has been agreed to (V,
6442); and in case the statement is read in lieu of the report the point
of order must be made or reserved before the statement is read (VIII,
3256, 3265, 3285, 3288, 3289). Where clause 2(c) of rule XXVIII applies,
points of order must be made before debate begins on the report.

In the Senate under the former practice the Chair did not rule out
conference reports, but the Senate itself expressed its opinion on the
vote to agree to the report (V, 6426-6432) but on March 8, 1918, the
Senate adopted a rule providing for a point of order against conferees
inserting matter not committed to them or changing the text agreed to by
both Houses and also providing for automatic recommitting of such report
to the committee of conference in case the point of order is sustained.
This rule of the Senate has been strictly construed (VIII, 3273, 3275).

Sec. 548. Meeting and action of
managers.

Before the managers of a conference may report the other House must be
notified of their appointment and a meeting must be held (V, 6458).
Conferences are generally held in the Capitol, and formerly with closed
doors, although in rare instances Members and others were admitted to
make arguments (V, 6254, footnote, 6263). Clause 6 of rule XXVIII now
provides for open conference meetings except where the House determines
by rollcall vote that all or part of the meeting shall be closed to the
public. The same rule now provides for a point of order in the House
against the report and for an automatic request for a new conference if
the House managers fail to meet in open session following appointment of
the Senate conferees (Dec. 20, 1982, p. 32896). Rarely, also, papers in
the nature of petitions have been referred to managers (V, 6263). The
managers of the two Houses vote separately (V, 6336).

[[Page 279]]

not only a conference report and but also sundry motions
to dispose of amendments reported from conference in disagreement (June
18, 1992, p. ----). While ordinarily reports are agreed to by majority
vote, a two-thirds vote is required on a report relating to a
constitutional amendment (V, 7036). Conference reports must be acted on
in both Houses and in a case where the Senate had adopted a report which
recommended that it recede from its amendments to a House Bill, the
House rejected the report and then agreed to the Senate amendments (Mar.
21, 1956, p. 5278). A conference report being made up but not acted on
at the expiration of a Congress, the bill is lost (V, 6309). One House
has, by message, reminded the other of its neglect to act on a
conference report; but this was an occasion of criticism (V, 6309).

Sec. 549. Action on a conference report in the
two Houses.

The report of the managers of a conference goes first to one House and
then to the other, neither House acting until it is in possession of the
papers, which means the original bill and amendments, as well as the
report (V, 6322, 6518-6522, 6586; VIII, 3301). The report must be acted
on as a whole, being agreed to or disagreed to as an entirety (V, 6472-
6480, 6530-6533; VIII, 3304, 3305; Speaker Bankhead, Aug. 22, 1940, p.
10763; Speaker Albert, Nov. 10, 1971, pp. 40481-82); and until the
report has been acted on no motion to deal with the individual
amendments is in order (V, 6323, 6389, 6390; Speaker Rayburn, Mar. 16,
1942, pp. 2502-04). Under a special order of business recommended by the
Committee on Rules, the House has considered a single, indivisible
motion to adopt

Sec. 550. Motions in order during action on a
conference report.

When a conference report is presented, the question on
agreeing is regarded as pending (V, 6517; VIII, 3300), and as the
negative of it is equivalent to disagreement, the motion to disagree is
not admitted (II, 1473; V, 6517; VIII, 3300). The reading of the
amendments to which the report relates is not in order during its
consideration (V, 5298). The report may not be amended on motion made in
either House alone (V, 6534, 6535; VIII, 3306), but amendment is
sometimes made by concurrent action of the two Houses (V, 6536, 6537;
VIII, 3308). A motion to refer to a standing committee (V, 6558) or to
lay on the table is not entertained in the House (V, 6538-6544); and a
conference report may not be sent to Committee of the Whole on
suggestion that it contains matter ordinarily requiring consideration in
that committee (V, 6559-6561). It is in order on motion to recommit a
conference report if the other body, by action on the report, have not
discharged their managers (V, 6545-6553, 6609; VIII, 3310), and by
concurrent resolution a report may be recommitted to conference after
each House has acted thereon (VIII, 3316), but such a proposition would
not be privileged in the House (V, 6554-6557; VIII, 3309).

A bill being recommitted to the committee of conference, no further
action is taken by the House until it is again reported by the managers
(VIII, 3326, 3327), and when reported is subject to another motion to
recommit (VIII, 3325). Because instructions included in a motion to
recommit a conference report are not binding, adoption of such a motion
opens to further negotiation all issues committed to conference (Apr.
21, 1988, p. 8198).

[[Page 280]]

question is as specified in those clauses and,
depending on the nature of the text in disagreement, may be to recede
and concur with an amendment, to insist on the House position, or to
insist on disagreement (see Sec. Sec. 913b and 913c, infra).

Sec. 551. Effect of disagreement to a conference
report.

When either House disagrees to a conference report the matter is left in
the position it was in before the conference was asked (V, 6525), and
the amendments in disagreement come up for further action (II, 1473),
but do not return to the state they were in before disagreement, so that
they need not be considered in Committee of the Whole (V, 6589). Motions
for disposition of Senate amendments, sending to conference and
instruction of conferees, are again in order (VIII, 3303). However, if a
conference report is considered as rejected pursuant to the provisions
of clauses 4 or 5 of rule XXVIII because of the inclusion of nongermane
matter, the pending

Sec. 552. Custody of papers when a conference is asked
before disagreement.

A conference may be asked, before the House asking
it has come to a resolution of disagreement, insisting or adhering. 3
Hats., 269, 341. In which case the papers are not left with the other
conferees, but are brought back to the foundation of the vote to be
given. And this is the most reasonable and respectful proceeding; for,
as was urged by the Lords on a particular occasion, ``it is held vain,
and below the wisdom of Parliament, to reason or argue against fixed
resolutions, and upon terms of impossibility to persuade.'' 3 Hats.,
226. * * *

In the Houses of Congress conferences are sometimes asked before a
disagreement, and while the rule as to retention of the papers
undoubtedly holds good, neglect to observe it has not been questioned
(V, 6585).

[[Page 281]]

299, 319, 322, 355; of adhering, 269, 270, 283, 300; and even of a
second or final adherence. 3 Hats., 270. * * *

Sec. 553. Relations of adherence and conference
under the parliamentary law.

* * * So the Commons say, ``an adherence is never
delivered at a free conference, which implies debate.'' 10 Grey, 137.
And on another occasion the Lords made it an objection that the Commons
had asked a free conference after they had made resolutions of adhering.
It was then affirmed, however, on the part of the Commons that nothing
was more parliamentary than to proceed with free conferences after
adhering, 3 Hats., 269, and we do in fact see instances of conference,
or of free conference, asked after the resolution of disagreeing, 3
Hats., 251, 253, 260, 286, 291, 316, 349; of insisting, ib., 280, 290,

Sec. 554. Relations of adherence and conference
under the practice of the two Houses of Congress.

The two Houses not observing the
parliamentary distinctions as to free and other conferences, their
practice in case of adherence is also different. Conferences are not
asked after an adherence by both Houses, but have often been asked and
granted where only one House has adhered (V, 6241-6244). A vote to
adhere may not be accompanied by a request for a conference (V, 6303;
VIII, 3208), as the House that votes to adhere does not ask a conference
(V, 6304-6308). The request for a conference in such a case is properly
accompanied by a motion to insist (V, 6308). And the House that has
adhered may insist on its adherence when it agrees to the conference (V,
6251). But it is not considered necessary either to recede or insist
before agreeing to the conference (V, 6242, 6244, 6310, 6311).

Sec. 555. Custody of the papers after an
effective conference.

* * * And in all cases of conference asked after a vote of
disagreement, &c., the conferees of the House asking it are to leave the
papers with the conferees of the other; and in one case where they
refused to receive them they were left on the table in the conference
chamber. Ib., 271, 317, 323, 354; 10 Grey, 146.

This principle of the parliamentary law is recognized as of effect in
the two Houses of Congress, and is customarily followed in cases wherein
the managers of the conference come to an agreement on which a report
may be based (July 31, 1981, pp. 18884-85). If conferees of House
agreeing to conference surrender papers to House asking conference, the
report can be received first by House asking the conference (VIII,
3330). In the 101st Congress, where a report following a successful
conference was filed in both Houses, an objection to a unanimous-consent
request in the Senate prevented the release of papers held at the Senate
desk to the House, where the Senate in the normal course of events was
scheduled to act first on the report (June 28, 1990, p. 16249).

[[Page 282]]

pers were taken back to the Senate, which was the body agreeing to the
conference, the Senate after consideration sent them to the House, since
it seemed proper for the asking House to take the first action (V,
6573). But sometimes managers have brought the papers to the agreeing
House without question (V, 6239, footnote; July 14, 1988, p. 18411).

Sec. 556. Custody of papers when managers of a
conference fail to agree.

But where a conference breaks up without reaching any
agreement the managers for the House which asked the conference, who
have the papers by right, are justified in retaining them and carrying
them back to the House (IV, 3905 footnote, V, 6246, 6254, 6571-6584;
VIII, 3332). And in one case wherein under such circumstances the pa-

Sec. 557. Free or instructed conferences.

After a free
conference the usage is to proceed with free conferences and not to
return again to a conference. 3 Hats., 270; 9 Grey, 229.

After a conference denied a free conference may be asked. 1 Grey, 45.

The House of Representatives instructs its managers whenever it sees
fit, without regard to whether or not the preceding conference has been
free or instructed.

[[Page 283]]

were sometimes communicated by way of conference. 6 Grey, 128, 300, 387; 7
Grey, 80; 8 Grey, 210, 255; 1 Torbuck's Deb., 278; 10 Grey, 293; 1
Chandler, 49, 287. But this is not the modern practice. 8 Grey, 255.
<> A conference has been asked after the first reading of a
bill. 1 Grey, 194. This is a singular instance.

Sec. 558. Parliamentary law as to purposes for which
conferences may be held.

When a conference is asked, the subject of it must
be expressed or the conference not agreed to. Ord. H. Com., 89; 1 Grey,
425; 7 Grey, 31. They are sometimes asked to inquire concerning an
offense or default of a member of the other House. 6 Grey, 181; 1
Chand., 304. Or the failure of the other House to present to the King a
bill passed by both Houses. 8 Grey, 302. Or on information received and
relating to the safety of the nation. 10 Grey, 171. Or when the methods
of Parliament are thought by the one House to have been departed from by
the other a conference is asked to come to a right understanding
thereon. 10 Grey, 148. So when an unparliamentary message has been sent,
instead of answering it they ask a conference. 3 Grey, 155. Formerly an
address or articles of impeachment or a bill, with amendments, or a vote
of the House, or concurrence in a vote, or a message from the King

[House Rules Manual -- House Document No. 104-272]
[From the U.S. Government Printing Office Online Database]
[Pages 283-287]
[DOCID:hrmanual-53]

The House of Representatives has no procedure conforming to this
provision.

<>
Messages between the Houses are to be sent only while both Houses are
sitting. 3 Hats., 15. * * *

sec. xlvii.--messages.

<> * * * They are
received during a debate without adjourning the debate. 3 Hats., 22.

Formerly this rule was observed (V, 6603, 6604), but since the 62d
Congress messages have been received by the House when the Senate was
not in session (VIII, 3338). Clause 5 of rule III was added in the 97th
Congress to authorize the Clerk to receive messages from the President
and the Senate at any time that the House is not in session (H. Res. 5,
Jan. 5, 1981, p. 98).

In the House of Representatives messages are received during debate,
the Member having the floor yielding on request of the Speaker.

[[Page 284]]

rors difficult to be corrected. So
arranged June 15, 1798.

Sec. 562. Reception of messages during voting, in
absence of a quorum, etc.

In Senate the messengers are introduced in any state
of business, except: 1. While a question is being put. 2. While the yeas
and nays are being called. 3. While the ballots are being counted. The
first case is short; the second and third are cases where any
interruption might occasion er-

In the House of Representatives messages are not received while a
question is being put or during a division by rising vote. However, they
are received during the call of the yeas and nays, during consideration
of a question of privilege (V, 6640-6642), during a call of the House
(V, 6600, 6650; VIII, 3339), during debate on a motion to approve the
Journal (Sept. 13, 1965, p. 23607), and before the organization of the
House (V, 6647-6649). But the Speaker exercises his discretion about
interrupting the pending business (V, 6602).

Sec. 563. Informal rising of Committee of the Whole to
receive a message.

In the House of Representatives, as in Parliament, if the
House be in committee when a messenger attends, the Speaker takes the
chair to receive the message, and then quits it to return into committee
without any question or interruption. 4 Grey, 226.
<>
Messengers are not saluted by the Members, but by the Speaker for the
House. 2 Grey, 253, 274.

The practice of the House of Representatives as to reception of
messages is founded on this paragraph of the parliamentary law and on
the former joint rules (V, 6591-6595). The Speaker, with a slight
inclination, addresses the messenger, by his title, after the messenger,
with an inclination, has addressed ``Mr. Speaker'' (V, 6591).

[[Page 285]]

The Secretary was sent to the other House to correct his mistake, the
correction was received, and the two amendments acted on de novo.

Sec. 565. Correction and return of messages.

If messengers
commit an error in delivering their message, they may be admitted or
called in to correct their message. 4 Grey, 41. Accordingly, March 13,
1800, the Senate having made two amendments to a bill from the House of
Representatives, their Secretary, by mistake, delivered one only, which
being inadmissible by itself, that House disagreed, and notified the
Senate of their disagreement. This produced a discovery of the mistake.

The request of the Senate that its Secretary be allowed to correct an
error in a message was granted by order of the House (V, 6605), and in a
similar case, when the House directed its clerk to correct an error in a
message to the Senate, the Senate agreed to the correction (V, 6607). In
the House a proposition to correct an error in a message to the Senate
is received as a question of privilege (III, 2613; Oct. 1, 1982, p.
27172). One House sometimes asks of the other the return of a message
(V, 6609-6611; Nov. 16, 1989, p. 29587). Where the Senate had
erroneously appointed conferees to a bill after the papers had been
messaged to the House, the Senate requested that the House return the
message so it could be made to reflect the appointment of Senate
conferees (May 20, 1996, p. ----).

Sec. 566. Disposal of messages after reception.

As soon as
the messenger who has brought bills from the other House has retired,
the Speaker holds the bills in his hand; and acquaints the House ``that
the other House have by their messenger sent certain bills,'' and then
reads their titles, and delivers them to the Clerk to be safely kept
till they shall be called for to be read. Hakew., 178.

In the House of Representatives the message goes to the Speaker's
table, but the Speaker does not acquaint the House, as they have already
heard the message. From the Speaker's table messages are disposed of
under clause 2 of rule XXIV.

Sec. 567. Information by message as to bills
passed.

It is not the usage for one House to inform the other by what numbers a
bill is passed. 10 Grey, 150. Yet they have sometimes recommended a
bill, as of great importance, to the consideration of the House to which
it is sent. 3 Hats., 25. * * *

[[Page 286]]

The Houses of Congress do not communicate by what numbers a bill is
passed, or otherwise recommend their bills.

Sec. 568. Information by message as to
rejection of bills.

* * * Nor when they have rejected a bill from the other House, do
they give notice of it; but it passes sub silentio, to prevent
unbecoming altercations. 1 Blackst., 183.

But in Congress the rejection is notified by message to the House in
which the bill originated.

In the two Houses of Congress the fact of the rejection of a bill is
messaged to the House in which the bill originated, as in the days of
Jefferson, although the joint rule requiring it has disappeared (IV,
3422; V, 6601). And in a case wherein the House had stricken out the
enacting words of a Senate bill, the Senate was notified that the bill
had been rejected (IV, 3423; VII, 2638; Oct. 4, 1972, pp. 33785-87).

Sec. 569. Questions asked by conference, not by
message.

A question is never asked by the one House of the other by way of
message, but only at a conference; for this is an interrogatory, not a
message. 3 Grey, 151, 181.

In 1798 the House of Representatives asked of the Senate a question by
way of conference, but this appears to be the only instance (V, 6256).

Sec. 570. Messages as to neglected bills.

When a bill is
sent by one House to the other, and is neglected, they may send a
message to remind them of it. 3 Hats., 25; 5 Grey, 154. But if it be
mere inattention, it is better to have it done informally by
communication between the Speakers or Members of the two Houses.

It does not appear that either House of Congress has by message
reminded the other of a neglected bill.

[[Page 287]]

communication should be made to both on the same day. But where a
message was accompanied with an original declaration, signed by the
party to which the message referred, its being sent to one House was not
noticed by the other, because the declaration being original, could not
possibly be sent to both Houses at the same time. 2 Hats., 260, 261,
262.

Sec. 571. Messages from the President to the two
Houses.

Where the subject of a message is of a nature that it can properly be
communicated to both Houses of Parliament, it is expected that this

The King having sent original letters to the Commons afterward desires
they may be returned, that he may communicate them to the Lords. 1
Chandler, 303.

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A message of the President of the United States is usually
communicated to both Houses on the same day when its nature permits (V,
6590); but an original document accompanying can, of course, be sent to
but one House (V, 6616, 6617). The President having by inadvertence
included certain papers in a message, was allowed to withdraw them (V,
6651). In the House of Representatives the Speaker has the discretion,
which he rarely exercises, to suspend a roll call in order to receive a
message from the President.

sec. xlviii.--assent.

Sec. 572. Parliamentary law as to presenting a bill for
the King's assent.

The House which has received a bill and passed it may
present it for the King's assent, and ought to do it, though they have
not by message notified to the other their passage of it. Yet the
notifying by message is a form which ought to be observed between the
two Houses from motives of respect and good understanding. 2 Hats., 242.
Were the bill to be withheld from being presented to the King, it would
be an infringement of the rules of Parliament. Ib.

[[Page 288]]

In the House of Representatives it was held that where there had been
no unreasonable delay in transmitting an enrolled bill to the President,
a resolution relating thereto did not present a question of privilege
(III, 2601).

Sec. 573. Parliamentary law as to enrollment of
bills.

When a bill has passed both Houses of Congress, the House last acting
on it notifies its passage to the other, and delivers the bill to the
Joint Committee on Enrollment, who sees that it is truly enrolled in
parchment. When the bill is enrolled it is not to be written in
paragraphs, but solidly, and all of a piece, that the blanks between the
paragraphs may not give room for forgery. 9 Grey, 143. * * *

[[Page 289]]

Sec. 574. Practice of the two Houses of Congress
as to enrollment of bills.

Formerly the enrollment in the House of Representatives
and the Senate was in writing (IV, 3436, 3437); but in 1893 the two
Houses, by concurrent resolution, provided that bills should be enrolled
on parchment by printing instead of by writing, and also that the
engrossment of bills prior to sending them to the other House for action
should be in printing (IV, 3433), and in 1895 this concurrent resolution
was approved by statute (IV, 3435; 1 U.S.C. 106). In the last six days
of a session of Congress the two Houses, by concurrent resolution, may
permit the enrolling and engrossing to be done by hand (IV, 3435, 3438;
H. Con. Res. 436, Dec. 20, 1982, p. 32875; H. Con. Res. 375, Oct. 11,
1984, p. 32149), and such a concurrent resolution is privileged for
consideration in the House during the last six days of the session (see
1 U.S.C. 106 for authority to waive ordinary printing requirements at
the end of a session), but prior to the last six days, a joint
resolution changing the law to permit hand enrollments is required and
may be considered in the House by unanimous consent (Dec. 10, 1985, p.
35741). The two Houses have by joint resolution authorized not only a
``hand enrollment'' of a time-sensitive bill but also a parchment
enrollment of the same measure, to be prepared at a later time for
deposit in the National Archives with the original (P.L. 100-199, Dec.
21, 1987; P.L. 100-454, Sept. 29, 1988). Only in a very exceptional case
have the two Houses waived the requirement that bills shall be enrolled
(IV, 3442). The enrolling clerk should make no change, however
unimportant, in the text of a bill to which the House has agreed (III,
2598); but the two Houses may by concurrent resolution authorize the
correction of an error when enrollment is made (IV, 3446-3450), and this
seems a better practice than earlier methods by authority of the
Committee on Enrolled Bills (IV, 3444, 3445).

Sec. 575. Signing of enrolled bills for
presentation to the President.

* * * It is then put into the hands of the Clerk of
the House of Representatives to have it signed by the Speaker. The Clerk
then brings it by way of message to the Senate to be signed by their
President. The Secretary of the Senate returns it to the Committee of
Enrollment, who present it to the President of the United States. * * *

The practice of the two Houses of Congress for the signing of enrolled
bills was formerly governed by joint rules, and has continued since
those rules were abrogated in 1876 (IV, 3430). The bills are signed
first by the Speaker, then by the President of the Senate (IV, 3429). By
unanimous consent where errors are found in enrolled bills that have
been signed, the two Houses by concurrent action may authorize the
cancellation of the signatures and a reenrollment (IV, 3453-3459), and
in the same way the signatures may be cancelled on a bill prematurely
enrolled (IV, 3454).

Sec. 576. Authority of pro tempore presiding
officers to sign enrolled bills.

A Speaker pro tempore elected by the House (II,
1401), or whose designation has received the approval of the House (II,
1404; VI, 277), signs enrolled bills (see clause 7 of rule I); but a
Member merely called to the chair during the day (II, 1399, 1400; VI,
276), or designated in writing by the Speaker, does not exercise this
function (II, 1401).

The Senate, by rule, has empowered a presiding officer by written
designation to sign enrolled bills (II, 1403).

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[[Page 290]]

Sec. 577. Presentation of enrolled bills to the
President.

In early days a joint committee took enrolled bills to the President
(IV, 3432); but in the later practice the chairman of the committee in
each House having responsibility for the enrollment of bills also has
the responsibility of presenting the bills from that House, and submits
from his committee daily a report of the bills presented for entry in
the journal (IV, 3431). Enrolled bills pending at the close of a session
have, at the next session of the same Congress, been ordered to be
treated as if no adjournment had taken place (IV, 3487-3488). And
enrolled bills signed by the presiding officers at one session have been
sent to the President and approved at the next session of the same
Congress (IV, 3486). At the close of the 97th Congress, some enrollments
were presented to the President, and were signed by him, after the
convening of the 98th Congress.

* * * * *
sec. xlix.--journals.

Sec. 578. Obsolete provisions as to entry of motions in
the journal.

If a question is interrupted by a vote to adjourn, or to
proceed to the orders of the day, the original question is never printed
in the journal, it never having been a vote, nor introductory to any
vote; but when suppressed by the previous question, the first question
must be stated, in order to introduce and make intelligible the second.
2 Hats., 83.

This provision of the parliamentary law is superseded by clause 1 of
rule XVI, which requires every motion entertained by the Speaker to be
entered on the Journal.

Sec. 579. Journal entries of questions postponed or
laid on the table.

So also when a question is postponed, adjourned, or laid on
the table, the original question, though not yet a vote, must be
expressed in the journals, because it makes part of the vote of
postponement, adjourning, or laying it on the table.

In the House of Representatives a question is not adjourned, except in
the sense that it may be left to go over as unfinished business by
reason of a vote to adjourn.

[[Page 291]]

world in the form in which they are made. 2
Hats., 85.

Sec. 580. Entry of amendments in the
journal.

Where amendments are made to a question, those amendments are not
printed in the journals, separated from the question; but only the
question as finally agreed to by the House. The rule of entering in the
journals only what the House has agreed to, is founded in great prudence
and good sense, as there may be many questions proposed which it may be
improper to publish to the

Sec. 581. Entry of votes in journal of the House of Commons.

In the practice of the House of Representatives a motion to amend is
entered on the Journal as any other motion, under clause 1 of rule XVI.
* * * * *

The first order for printing the votes of the House of Commons was
October 30, 1685. 1 Chandler, 387.

Sec. 582. The journal as an official record.

Some judges
have been of opinion that the journals of the House of Commons are no
records, but only remembrances. But this is not law. Hob., 110, 111;
Lex. Parl., 114, 115; Jour. H. C., Mar. 17, 1592; Hale, Parl., 105. For
the Lords in their House have power of judicature, the Commons in their
House have power of judicature, and both Houses together have power of
judicature; and the book of the Clerk of the House of Commons is a
record, as is affirmed by act of Parl., 6 H. 8, c. 16; 4 Inst., 23, 24;
and every member of the House of Commons hath a judicial place. 4 Inst.,
15. As records they are open to every person, and a printed vote of
either House is sufficient ground for the other to notice it. Either may
appoint a committee to inspect the journals of the other, and report
what has been done by the other in any particular case. 2 Hats., 261; 3
Hats., 27-30. Every member has a right to see the journals and to take
and publish votes from them. Being a record, every one may see and
publish them. 6 Grey, 118, 119.

[[Page 292]]

evidence in the courts of the United States (IV, 2810; 28
U.S.C. 1736). A Senate committee concluded that the Journal entries of a
legislative body were conclusive as to all the proceedings had, and
might not be contradicted by ex parte evidence (I, 563).

The Journal of the House of Representatives is the official record of
the proceedings of the House (IV, 2727), and certified copies are
admitted as

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Sec. 583. Correction of the journal through a
committee.

On information of a misentry or omission of an entry in the
journal, a committee may be appointed to examine and rectify it, and
report it to the House. 2 Hats., 194, 195.

sec. l.--adjournment.

Sec. 584. Parliamentary law as to adjournment of the
Commons and Lords.

The two Houses of Parliament have the sole, separate, and
independent power of adjourning each their respective Houses. The King
has no authority to adjourn them; he can only signify his desire, and it
is in the wisdom and prudence of either House to comply with his
requisition, or not, as they see fitting. 2 Hats., 232; 1 Blackst., 186;
5 Grey, 122.
* * * * *

Sec. 585. Motion to adjourn not to be amended.

A motion to
adjourn, simply cannot be amended, as by adding ``to a particular day;''
but must be put simply ``that this House do now adjourn;'' and if
carried in the affirmative, it is adjourned to the next sitting day,
unless it has come to a previous resolution, ``that at its rising it
will adjourn to a particular day,'' and then the House is adjourned to
that day. 2 Hats., 82.

[[Page 293]]

ent with article I, section 5, clause 4 of the
Constitution, not in excess of three days).

The modern practice of the House of Representatives adheres to this
principle (Sec. Sec. 783-784, infra). Clause 4 of rule XVI admits at the
discretion of the Speaker a separate motion of equal privilege that when
the House adjourns on that day it stand adjourned to a day and time
certain (consist-

Sec. 586. Motion for a recess.

Where it is convenient that
the business of the House be suspended for a short time, as for a
conference presently to be held, &c., it adjourns during pleasure; 2
Hats., 305; or for a quarter of an hour. 4 Grey, 331.

An adjournment during pleasure is effected in the House of
Representatives by a motion for a recess. A recess may not be taken by
less than a quorum (IV, 2958-2960), and consequently the motion for it
is not in order in the absence of a quorum (IV, 2955-2957). When the
hour previously fixed for a recess arrives, the Chair declares the House
in recess even in the midst of a division or when a quorum is not
present (V, 6665, 6666; IV, 664); but a roll call is not in this way
interrupted (V, 6054, 6055). Where a special order requires a recess at
a certain hour of a certain day, the recess is not taken if the
encroachment of a prior legislative day prevents the existence of the
said certain day as a legislative day (IV, 3192). And an adjournment at
a time prior to the hour fixed for a recess vacates the recess (IV,
3283). A motion for a recess must, when entertained, be voted on, even
though the taking of the vote may have been prevented until after the
hour specified for the conclusion of the proposed recess (V, 6667). A
Committee of the Whole takes a recess only by permission of the House
(V, 6669-6671; VIII, 3362). The motion for a recess is not privileged
(V, 4302, 5301, 6740), in the House or in Committee of the Whole (June
26, 1981, p. 14356) against a demand that business proceed in the
regular order (V, 6663; VIII, 3354-3356). However, beginning in the 102d
Congress a motion to authorize the Speaker to declare a recess was given
a privilege equal to that of the motion to adjourn (clause 4 of rule
XVI); and beginning in the 103d Congress the Speaker was authorized to
declare a recess ``for a short time when no question is pending''
(clause 12 of rule I).

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[[Page 294]]

Sec. 587. Adjournment pronounced by the
Speaker.

If a question be put for adjournment, it is no adjournment till
the Speaker pronounces it. 5 Grey, 137. And from courtesy and respect,
no member leaves his place till the Speaker has passed on.

sec. li.--a session.

Sec. 588. Sessions of Parliament.

Parliament have three
modes of separation, to wit: by adjournment, by prorogation or
dissolution by the King, or by the efflux of the term for which they
were elected. Prorogation or dissolution constitutes there what is
called a session; provided some act was passed. In this case all matters
depending before them are discontinued, and at their next meeting are to
be taken up de novo, if taken up at all. 1 Blackst., 186. Adjournment,
which is by themselves, is no more than a continuance of the session
from one day to another, of for a fortnight, a month, &c., ad libitum.
All matters depending remain in statu quo, and when they meet again, be
the term ever so distant, are resumed, without any fresh commencement,
at the point at which they were left. 1 Lev., 165; Lex. Parl., c. 2; 1
Ro. Rep., 29; 4 Inst., 7, 27, 28; Hutt., 61; 1 Mod., 252; Ruffh. Jac.,
L. Dict. Parliament; 1 Blackst., 186. Their whole session is considered
in law but as one day, and has relation to the first day thereof. Bro.
Abr. Parliament, 86.

[[Page 295]]

constituting them commissioners for the particular purpose.

Sec. 589. Sitting of committees in recesses
and creation of commissions to sit after Congress adjourns.

Committees may be appointed
to sit during a recess by adjournment, but not by prorogation. 5 Grey,
374; 9 Grey, 350; 1 Chandler, 50. Neither House can continue any portion
of itself in any parliamentary function beyond the end of the session
without the consent of the other two branches. When done, it is by a bill

The House of Representatives may empower a committee to sit during a
recess which is within the constitutional term of the House (IV, 4541-
4543), but not thereafter (IV, 4545). Therefore committees are created
commissions by law if their functions are to extend beyond the term of
the Congress (IV, 4545). Under clause 2(m)(1)(A) of rule XI, all
committees are authorized to sit and act anywhere within the United
States, and to issue subpoenas, whether the House is in session or has
adjourned to a date certain or adjourned sine die, even after the second
regular session of a Congress until the end of the constitutional term.
By unanimous consent, all committees may be authorized to file
investigative reports and annual activities reports following sine die
adjournment (Oct. 17, 1986, p. 33099).

[[Page 296]]

So far we have fixed landmarks for determining sessions. * * *

Sec. 590. Sessions and recesses of
Congress.

Congress separate in two ways only, to wit, by adjournment, or dissolution by
the efflux of their time. What, then, constitutes a session with them? A
dissolution certainly closes one session, and the meeting of the new
Congress begins another. The Constitution authorizes the President, ``on
extraordinary occasions to convene both Houses, or either of them.'' I.
3. If convened by the President's proclamation, this must begin a new
session, and of course determine the preceding one to have been a
session. So if it meets under the clause of the Constitution which says,
``the Congress shall assemble at least once in every year, and such
meeting shall be on the first Monday in December, unless they shall by
law appoint a different day.'' I. 4. This must begin a new session; for
even if the last adjournment was to this day the act of adjournment is
merged in the higher authority of the Constitution, and the meeting will
be under that, and not under their adjournment.

The twentieth amendment to the Constitution, clause 2, now provides
that the Congress shall assemble at least once in every year, at noon on
the 3d day of January, unless they shall by law appoint a different day.
Section 132 of the Legislative Reorganization Act of 1946, 60 Stat. 812,
as amended by section 461 of the Legislative Reorganization Act of 1970,
84 Stat. 1140, provides that except in time of war the two Houses shall
adjourn sine die not later than the last day of July (Sundays excepted)
unless otherwise provided by the Congress. (For form of resolution used
to continue in session past July 31, see H. Con. Res. 648, 92d Cong.,
July 25, 1972, pp. 25145-46.) The same section contemplates an
adjournment of Congress from the thirtieth day before to the second day
following Labor Day in the first session of a Congress (each odd-
numbered year) in lieu of a sine die adjournment. See Sec. 947, infra.
Congress is adjourned for more than three days by a concurrent
resolution (IV, 4031, footnote), and such adjournments to a day certain,
within the session, do not terminate the session (V, 6676, 6677). In one
instance the two Houses by concurrent resolution provided for
adjournment to a day certain with the provision that if there be no
quorum present on that day the session should terminate (V, 6686). Prior
to the adoption of the twentieth amendment it had become established
practice that a meeting of Congress once within the year did not make
uncertain the constitutional mandate to meet on the first Monday of
December (I, 10, 11). And where a special session continued until the
time prescribed by the Constitution for the annual meeting without an
appreciable intervening time (V, 6690, 6692), a question arose as to
whether there had actually been a recess of Congress (V, 6687, 6693),
with the conclusion that a recess was a real and not an imaginary time
(V, 6687).

Sec. 591. Manner of closing a session by action
of the two Houses.

* * * In other cases it is declared by the joint vote authorizing
the President of the Senate and the Speaker to close the session on a
fixed day, which is usually in the following form: ``Resolved by the
Senate and House of Representatives, that the President of the Senate
and the Speaker of the House of Representatives be authorized to close
the present session by adjourning their respective Houses on the ----
day of ----.''

[[Page 297]]

authority granted each House by simple
resolutions consenting to such adjournment sine die at any time prior to
a specified date (Nov. 19, 1919, p. 8810). Pursuant to H. Con. Res. 266,
83d Congress, the House adjourned sine die on August 20, 1954, with
consent of the House to adjournment sine die of the Senate at any time
prior to December 25, 1954 (Aug. 20, 1954, p. 15554). In the 93d
Congress, the two Houses adopted concurrent resolutions adjourning their
sessions sine die or until reconvened by the Joint House-Senate
leadership (see H. Con. Res. 412, Dec. 22, 1973, p. 43327; H. Con Res.
697, Dec. 20, 1974, p. 41815). In the 97th Congress, 2d Session, a
concurrent resolution provided for the adjournment sine die of the House
on December 20 or December 21 pursuant to a motion made by the Majority
Leader or his designee, and provided the consent of the House to the
adjournment sine die of the Senate at any time prior to January 3, 1983
as determined by the Senate, and also provided the consent of the House
for adjournments and recesses or the Senate for more than three days as
determined by the Senate during such period (H. Con. Res. 438, Dec. 20,
1982, p. 32951). Under the current practice, first session sine die
adjournment concurrent resolutions contain House-Senate leadership
recall authority, while second session resolutions usually do not (for
the unusual cases, see H. Con. Res. 697, 93d Cong., Dec. 20, 1974, p.
41815; H. Con. Res. 399, 101st Cong., Oct. 27, 1990, p. 36850), and all
such resolutions permit the motion to adjourn sine die only by the
Majority Leaders or their designees (Dec. 19, 1985, p. 38358; Oct. 17,
1986, p. 33096).

In the modern practice the resolving clause of the concurrent
resolution is in form different from that given by Jefferson. At the
close of the first session of the 66th Congress, the two Houses
adjourned sine die under

Sec. 592. Parliamentary law as to business at the
termination of a session.

When it was said above that all matters depending before
Parliament were discontinued by the determination of the session, it was
not meant for judiciary cases depending before the House of Lords, such
as impeachments, appeals, and writs of error. These stand continued, of
course, to the next session. Raym., 120, 381; Ruffh. Fac., L. D.,
Parliament.

Impeachments stand, in like manner, continued before the Senate of the
United States.

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[[Page 298]]

In the House of Representatives rule XXVI and the practice thereunder
show that the two Houses of Congress have departed from the law of
Parliament.

* * * * *
sec. lii.--treaties.

Sec. 593. General nature of
treaties.

Treaties are legislative acts. A treaty is the law of the land. It
differs from other laws only as it must have the consent of a foreign
nation, being but a contract with respect to that nation. In all
countries, I believe, except England, treaties are made by the
legislative power; and there, also, if they touch the laws of the land
they must be approved by Parliament. Ware v. Hylton, 3 Dallas's Rep.,
223. It is acknowledged, for instance, that the King of Great Britain
cannot by a treaty make a citizen of an alien. Vattel, b. 1, c. 19, sec.
214. An act of Parliament was necessary to validate the American treaty
of 1783. And abundant examples of such acts can be cited. In the case of
the treaty of Utrecht, in 1712, the commercial articles required the
concurrence of Parliament; but a bill brought in for that purpose was
rejected. France, the other contracting party, suffered these articles,
in practice, to be not insisted on, and adhered to the rest of the
treaty. 4 Russell's Hist. Mod. Europe, 457; 2 Smollet, 242, 246.

[[Page 299]]

entirely agreed among ourselves. 1. It is
admitted that it must concern the foreign nation party to the contract,
or it would be a mere nullity, res inter alias acta. 2. By the general
power to make treaties, the Constitution must have intended to
comprehend only those subjects which are usually regulated by treaty,
and can not be otherwise regulated. 3. It must have meant to except out
of these the rights reserved to the States; for surely the President and
Senate can not do by treaty what the whole Government is interdicted
from doing in any way. 4. And also to except those subjects of
legislation in which it gave a participation to the House of
Representatives. This last exception is denied by some on the ground
that it would leave very little matter for the treaty power to work on.
The less the better, say others. The Constitution thought it wise to
restrain the Executive and Senate from entangling and embroiling our
affairs with those of Europe. Besides, as the negotiations are carried
on by the Executive alone, the subjecting to the ratification of the
representatives such articles as are within their participation is no
more inconvenient than to the Senate. But the ground of this exception
is denied as unfounded. For examine, e.g., the treaty of commerce with
France, and it will be found that, out of thirty-one articles, there are
not more than small portions of two or three of them which would not
still remain as subjects of treaties, untouched by these exceptions.

[[Page 300]]

Sec. 594. Jefferson's discussion of treaties under the
Constitution.

By the Constitution of the United States this department of
legislation is confined to two branches only of the ordinary
legislature--the President originating and the Senate having a negative.
To what subjects this power extends has not been defined in detail by
the Constitution; nor are we

Sec. 595. General action of the House as to
treaties.

The participation of the House of Representatives in the treaty-
making power has been often examined since Jefferson's Manual was
written. The House has in several instances taken action in carrying
into effect, terminating, enforcing, and suggesting treaties (II, 1502-
1505, 1520-1522), although sometimes the propriety of requesting the
Executive to negotiate a treaty has been questioned (II, 1514-1517).

Sec. 596. Authority of the House as to treaties in
general.

The exact authority of the House in the making of general treaties has
been the subject of differences of opinion. In 1796 the House affirmed
that, when a treaty related to subjects within the power of Congress, it
was the constitutional duty of the House to deliberate on the expediency
of carrying such treaty into effect (II, 1509); and in 1816, after a
discussion with the Senate, the House maintained its position that a
treaty must depend on a law of Congress for its execution as to such
stipulations as relate to subjects constitutionally entrusted to
Congress (II, 1506). In 1868 the House's assertion of right to a voice
in carrying out the stipulations of certain treaties was conceded in a
modified form (II, 1508). Again, in 1871, the House asserted its
prerogative (II, 1523). In 1820 and 1868 there were discussions of the
House's functions as to treaties ceding or acquiring foreign territory
(II, 1507, 1508), and at various other times there have been discussions
of the general subject (II, 1509, 1546, 1547; VI, 324-326).

Sec. 597. Authority of the House as to revenue
treaties.

After long and careful consideration the Judiciary Committee of the House
decided, in 1887, that the executive branch of the Government might not
conclude a treaty affecting the revenue without the assent of the House
(II, 1528-1530), and a Senate committee after examination concluded that
duties were more properly regulated with the publicity of congressional
action than by treaties negotiated by the President and ratified by the
Senate in secrecy (II, 1532). In practice the House has acted on revenue
treaties (II, 1531, 1533); and in 1880 it declared the negotiation of a
revenue treaty an invasion of its prerogatives (II, 1524). At other
times the subject has been discussed (II, 1525-1528, 1531, 1533).

Sec. 598. House approves Indian
treaties.

After long discussion the House, in 1871, successfully asserted its
right to a voice in approving Indian treaties (II, 1535, 1536), although
in earlier times this prerogative had been jealously guarded by the
Executive (II, 1534).

There have been various conflicts with the Executive over requests of
the House for papers relating to treaties (II, 1509-1513, 1518, 1519,
1561).

[[Page 301]]

cordingly the process adopted in the case of France in 1798.

Sec. 599. Treaties abrogated by
law.

Treaties being declared, equally with the laws of the United States, to be the
supreme law of the land, it is understood that an act of the legislature
alone can declare them infringed and rescinded. This was ac-

Notice to a foreign government of the abrogation of a treaty is
authorized by a joint resolution (V, 6270).

Sec. 600. Procedure of the Senate as to
treaties.

It has been the usage for the Executive, when it communicates a
treaty to the Senate for their ratification, to communicate also the
correspondence of the negotiators. This having been omitted in the case
of the Prussian treaty, was asked by a vote of the House of February 12,
1800, and was obtained. And in December, 1800, the convention of that
year between the United States and France, with the report of the
negotiations by the envoys, but not their instructions, being laid
before the Senate, the instructions were asked for and communicated by
the President.

The mode of voting on questions of ratification is by nominal call.

[House Rules Manual -- House Document No. 104-272]
[From the U.S. Government Printing Office Online Database]
[Pages 301-313]
[DOCID:hrmanual-59]

The Senate now has rules governing its procedure on treaties.

* * * * *
sec. liii.--impeachment.

Sec. 601. Jurisdiction of Lords and Commons as
to impeachments.

These are the provisions of the Constitution of the United States
on the subject of impeachments. The following is a sketch of some of the
principles and practices of England on the same subject:

[[Page 302]]

The Lords may not, by the law, try a commoner for a
capital offense, on the information of the King or a private person,
because the accused is entitled to a trial by his peers generally; but
on accusation by the House of Commons, they may proceed against the
delinquent, of whatsoever degree, and whatsoever be the nature of the
offense; for there they do not assume to themselves trial at common law.
The Commons are then instead of a jury, and the judgment is given on
their demand, which is instead of a verdict. So the Lords do only judge,
but not try the delinquent. Ib., 6, 7. But Wooddeson denies that a
commoner can now be charged capitally before the Lords, even by the
Commons; and cites Fitzharris's case, 1681, impeached of high treason,
where the Lords remitted the prosecution to the inferior court. 8 Grey's
Deb., 325-7; 2 Wooddeson, 576, 601; 3 Seld., 1604, 1610, 1618, 1619,
1641; 4 Blackst., 25; 9 Seld., 1656; 73 Seld., 1604-18.
Jurisdiction. The Lords can not impeach any to themselves, nor join in
the accusation, because they are the judges. Seld. Judic. in Parl., 12,
63. Nor can they proceed against a commoner but on complaint of the
Commons. Ib., 84.

[[Page 303]]

order for his appearance. Sachev.
Trial, 325; 2 Wood., 602, 605; Lords' Journ., 3 June, 1701; 1 Wms., 616;
6 Grey, 324.

Sec. 602. Parliamentary law as to accusation
in impeachment.

Accusation. The Commons, as the grand inquest of the nation, becomes
suitors for penal justice. 2 Wood., 597; 6 Grey, 356. The general course
is to pass a resolution containing a criminal charge against the
supposed delinquent, and then to direct some member to impeach him by
oral accusation, at the bar of the House of Lords, in the name of the
Commons. The person signifies that the articles will be exhibited, and
desires that the delinquent may be sequestered from his seat, or be
committed, or that the peers will take

Sec. 603. Inception of impeachment proceedings in the
House.

In the House of Representatives there are various methods of setting
an impeachment in motion: by charges made on the floor on the
responsibility of a Member or Delegate (II, 1303; III, 2342, 2400, 2469;
VI, 525, 526, 528, 535, 536); by charges preferred by a memorial, which
is usually referred to a committee for examination (III, 2364, 2491,
2494, 2496, 2499, 2515; VI, 543); or by a resolution dropped in the
hopper by a Member and referred to a committee (Apr. 15, 1970, p. 11941-
42; Oct. 23, 1973, p. 34873); by a message from the President (III,
2294, 2319; VI, 498); by charges transmitted from the legislature of a
State (III, 2469) or Territory (III, 2487) or from a grand jury (III,
2488); or from facts developed and reported by an investigating
committee of the House (III, 2399, 2444). In the 93d Congress, the Vice
President sought to initiate an investigation by the House of charges
against him of possibly impeachable offenses; the Speaker and the House
took no action on the request since the matter was pending in the courts
and the offenses did not relate to activities during the Vice
President's term of office (Sept. 25, 1973, p. 31368); see III, 2510,
wherein the Committee on the Judiciary (to which the matter had been
referred by privileged resolution) reported that a civil officer (the
Vice President) could not be impeached for acts or omissions committed
prior to his term of office; but see III, 1736, however, the Vice
President's request that the House investigate charges against his prior
offical conduct as Secretary of War was referred, on motion, to a select
committee.

[[Page 304]]

resolution simply proposing an investigation, even though impeachment
may be a possible consequence, is not privileged (III, 2050, 2546;
VI, 463). But where a resolution of investigation positively proposes
impeachment or suggests that end, it has been admitted as of privilege
(III, 2051, 2052, 2401, 2402). A committee to which has been referred
privileged resolutions for the impeachment of a federal civil officer
may call up as privileged resolutions incidental to consideration of the
impeachment question, including conferral of subpoena authority and
funding of the investigation from the contingent fund (now referred
to as ``applicable accounts of the House described in clause 1(h)(1)
of rule X'') (VI, 549; Feb. 6, 1974, p. 2349). A resolution authorizing
depositions by committee counsel in an impeachment inquiry is privileged
under rule IX and the Constitution as incidental to impeachment (Speaker
Wright, Oct. 3, 1988, p. 27781).

Sec. 604. A proposition to impeach a question of
privilege.

A direct proposition to impeach is a question of high privilege in
the House and at once supersedes business otherwise in order under the
rules governing the order of business (III, 2045-2048; VI, 468, 469;
July 22, 1986, p. 17294; Aug. 3, 1988, p. 20206; May 10, 1989, p. 8814;
see Procedure, ch. 14, sec. 1-5). It may not even be superseded by an
election case, which is also a matter of high privilege (III, 2581). It
does not lose its privilege from the fact that a similar proposition has
been made at a previous time during the same session of Congress (III,
2408), previous action of the House not affecting it (III, 2053). So,
also, propositions relating to an impeachment already made are
privileged (III, 2400, 2402, 2410; July 22, 1986, p. 17294; Aug. 3,
1988, p. 20206), such as resolutions providing for selection of managers
of an impeachment (VI, 517), proposing abatement of impeachment
proceedings (VI, 514), reappointing managers for impeachment proceedings
continued in the Senate from the previous Congress (Jan. 3, 1989, p.
84), empowering managers to hire special legal and clerical personnel
and providing money for their payment (Jan. 3, 1989, p. 84), and
replacing an excused manager (Feb. 7, 1989, p. 1726); but a

Sec. 605. Investigation of impeachment
charges.

The impeachment having been made on the floor by a Member (III, 2342, 2400;
VI, 525, 526, 528, 535, 536), or charges suggesting impeachment having
been made by memorial (III, 2495, 2516; 2520, VI, 552), or even
appearing through common fame (III, 2385, 2506), the House has at times
ordered an investigation at once. At other times it has refrained from
ordering investigation until the charges had been examined by a
committee (III, 2364, 2488, 2491, 2492, 2494, 2504, 2513). Under the
later practice, resolutions introduced through the hopper under clause 4
of rule XXII that directly call for the impeachment of a federal civil
officer have been referred to the Committee on the Judiciary, while
resolutions calling for an investigation by that committee or by a
select committee with a view toward impeachment have been referred to
the Committee on Rules (Oct. 23, 1973, p. 34873).

[[Page 305]]

chairman and members of the committee for their efforts (Aug. 20,
1974, p. 29361).

Sec. 606. Procedure of committee in
investigating.

The House has always examined the charges by its own committee before
it has voted to impeach (III, 2294, 2487, 2501). This committee has
sometimes been a select committee (III, 2342, 2487, 2494), sometimes a
standing committee (III, 2400, 2409). In some instances the committee
has made its inquiry ex parte (III, 2319, 2343, 2366, 2385, 2403, 2496,
2511); but in the later practice the sentiment of committees has been in
favor of permitting the accused to explain, present witnesses, cross-
examine (III, 2445, 2471, 2518), and be represented by counsel (III,
2470, 2501, 2511, 2516; 93d Cong., Aug. 20, 1974, p. 29219). The
Committee on the Judiciary having been directed by the House to
investigate whether sufficient grounds existed for the impeachment of
President Nixon, and the President having resigned following the
decision of that committee to recommend his impeachment to the House,
the chairman of the committee submitted from the floor as privileged the
committee's report containing the articles of impeachment approved by
the committee but without an accompanying resolution of impeachment. The
House thereupon adopted a resolution (1) taking notice of the
committee's action on a resolution and Articles of Impeachment and of
the President's resignation; (2) accepting the report and authorizing
its printing, with additional views; and (3) commending the

Sec. 607. Impeachment carried to the
Senate.

Its committee on investigation having reported, the House may vote the
impeachment (III, 2367, 2412; VI, 500, 514; Mar. 2, 1936, p. 3067-91),
and, after having notified the Senate by message (III, 2413, 2446), may
direct the impeachment to be presented at the bar of the Senate by a
single Member (III, 2294), or by two (III, 2319, 2343, 2367), or five
Members (III, 2445) or nine (July 22, 1986, p. 17306). These Members in
one notable case represented the majority party alone, but ordinarily
include representation of the minority party (III, 2445, 2472, 2505).
The chairman of the committee impeaches at the bar of the Senate by oral
accusation (III, 2413, 2446, 2473), and requests that the Senate take
order as to appearance; but in only one case has the parliamentary law
as to sequestration and committal been followed (III, 2118, 2296), later
inquiry resulting in the conclusion that the Senate had no power to take
into custody the body of the accused (III, 2324, 2367). Having delivered
the impeachment, the committee returns to the House and reports verbally
(III, 2413, 2446; VI, 501). In the later practice the House considers
together the resolution and articles of impeachment (VI, 499, 500, 514;
Mar. 2, 1936, pp. 3067-91) and following their adoption adopts
resolutions electing managers to present the articles before the Senate,
notifying the Senate of the adoption of articles and election of
managers, and authorizing the managers to prepare for and to conduct the
trial in the Senate (VI, 500, 514, 517; Mar. 6, 1936, pp. 3393, 3394;
July 22, 1986, p. 17306; Aug. 3, 1988, p. 20206).

Sec. 608. The writ of summons for appearance
of respondent.

Process. If the party do not appear, proclamations are to be issued,
giving him a day to appear. On their return they are strictly examined.
If any error be found in them, a new proclamation issues, giving a short
day. If he appear not, his goods may be arrested, and they may proceed.
Seld. Jud. 98, 99.

[[Page 306]]

The managers for the House of Representatives attend in the Senate
after the articles have been exhibited and demand that process issue for
the attendance of respondent (III, 2451, 2478), after which they return
and report verbally to the House (III, 2423, 2451; VI, 501). The Senate
thereupon issue a writ of summons, fixing the day of return (III, 2423,
2451); and in a case wherein the respondent did not appear by person or
attorney the Senate published a proclamation for him to appear (III,
2393). But the respondent's goods were not attached.

Sec. 609. Exhibition and form of
articles.

Articles. The accusation (articles) of the Commons is substituted in place of an
indictment. Thus, by the usage of Parliament, in impeachment for writing
or speaking, the particular words need not be specified. Sach. Tr., 325;
2 Wood., 602, 605; Lords' Journ., 3 June, 1701; 1 Wms., 616.

Formerly, the House exhibited its articles after the impeachment had
been carried to the bar of the Senate; in the later practice, the
resolution and articles of impeachment have been considered together and
exhibited simultaneously in the Senate by the managers (VI, 501, 515;
Mar. 10, 1936, pp. 3485-88; Oct. 7, 1986, p. 29126). The managers, who
are elected by the House (III, 2300, 2345, 2417, 2448; VI, 500, 514,
517; Mar. 2, 1936, pp. 3393, 3394) or appointed by the Speaker (III,
2388, 2475), carry the articles in obedience to a resolution of the
House (III, 2417, 2419, 2448) to the bar of the Senate (III, 2420, 2449,
2476), the House having previously informed the Senate (III, 2419, 2448)
and received a message informing them of the readiness of the latter
body to receive the articles (III, 2078, 2325, 2345; Aug. 6, 1986, p.
19335). Having exhibited the articles the managers return and report
verbally to the House (III, 2449, 2476). The articles in the Belknap
impeachment were held sufficient, although attacked for not describing
the respondent as one subject to impeachment (III, 2123). In the
proceedings against Judge Ritter, objections to the articles of
impeachment, on the ground that they duplicated and accumulated separate
offenses, were overruled (Apr. 3, 1936, p. 4898; Apr. 17, 1936, p.
5606). These articles are signed by the Speaker and attested by the
Clerk (III, 2302, 2449), and in form approved by the practice of the
House (III, 2420, 2449, 2476).

Articles of impeachment which have been exhibited to the Senate may be
subsequently modified or amended by the House (VI, 520; Mar. 30, 1936,
pp. 4597-99), and a resolution proposing to amend articles of
impeachment previously adopted by the House is privileged for
consideration when reported by the managers on the part of the House
(VI, 520; Mar. 30, 1936, p. 4597).

For discussion of substantive charges contained in articles of
impeachment and the constitutional grounds for impeachment, see
Sec. 175, supra (accompanying Const., art. II, sec. 4).

[[Page 307]]

cial accusations. If it be for a misdemeanor only, he answers, a
lord in his place, a commoner at the bar, and not in custody, unless, on
the answer, the Lords find cause to commit him, till he finds sureties
to attend, and lest he should fly. Seld. Jud., 98, 99. A copy of the
articles is given him, and a day fixed for his answer. T. Ray.; 1
Rushw., 268; Fost., 232; 1 Clar. Hist. of the Reb., 379. On a
misdemeanor, his appearance may be in person, or he may answer in
writing, or by attorney. Seld. Jud., 100. The general rule on accusation
for a misdemeanor is, that in such a state of liberty or restraint as
the party is when the Commons complain of him, in such he is to answer.
Ib., 101. If previously committed by the commons, he answers as a
prisoner. But this may be called in some sort judicium parium suorum.
Ib. In misdemeanors the party has a right to counsel by the common law,
but not in capital cases. Seld. Jud., 102, 105.

Sec. 610. Parliamentary law as to appearance
of respondent.

Appearance. If he appear, and the case be capital, he answers in custody;
though not if the accusation be general. He is not to be committed but
on spe-

[[Page 308]]

Sec. 611. Requirements of the Senate as to
appearance of respondent.

This paragraph of the parliamentary law is largely obsolete
so far as the practice of the House of Representatives and the Senate
are concerned. The accused may appear in person or by attorney (III,
2127, 2349, 2424), and take the stand in his own behalf (VI, 511, 524;
Apr. 11, 1936, pp. 5370-86; Oct. 7, 1986, p. 29149), or he may not
appear at all (III, 2307, 2333, 2393). In case he does not appear the
House does not ask that he be compelled to appear (III, 2308), but the
trial proceeds as on a plea of ``not guilty.'' It has been decided that
the Senate has no power to take into custody the body of the accused
(III, 2324, 2367). The writ of summons to the accused recites the
articles and notifies him to appear at a fixed time and place and file
his answer (III, 2127). In all cases respondent may appear by counsel
(III, 2129), and in one trial, when a petition set forth that respondent
was insane, the counsel of his son was admitted to be heard and present
evidence in support of the petition, but not to make argument (III,
2333).

Sec. 612. Answer of respondent.

Answer. The answer need not
observe great strictness of the form. He may plead guilty as to part,
and defend as to the residue; or, saving all exceptions, deny the whole
or give a particular answer to each article separately. 1 Rush., 274; 2
Rush., 1374; 12 Parl. Hist., 442; 3 Lords' Journ., 13 Nov., 1643; 2
Wood., 607. But he cannot plead a pardon in bar to the impeachment. 2
Wood., 615; 2 St. Tr., 735.

In the proceedings following the impeachment of President Andrew
Johnson, the answer of the President took up the articles one by one,
denying some of the charges, admitting others but denying that they set
forth impeachable offenses, and excepting to the sufficiency of others
(III, 2428). The form of this answer was commented on during preparation
of the replication in the House (III, 2431). Blount and Belknap demurred
to the charges on the ground that they were not civil officers within
the meaning of the Constitution (III, 2310, 2453), and Swanye also
raised questions as to the jurisdiction of the Senate (III, 2481). The
answer is part of the pleadings, and exhibits in the nature of evidence
may not properly be attached thereto (III, 2124). The answer of the
respondent in impeachment proceedings is messaged to the House and
subsequently referred to the managers on the part of the House (VI, 506;
Apr. 6, 1936, p. 5020; Sept. 9, 1986, p. 22317).

Sec. 613. Other pleadings.

Replication, rejoinder, &c. There
may be a replication, rejoinder, &c. Sel. Jud., 114; 8 Grey's Deb., 233;
Sach. Tr., 15; Journ. H. of Commons, 6 March, 1640-1.

[[Page 309]]

(III, 2457). In the
Louderback (VI, 522) and Ritter (Apr. 6, 1936, p. 4971) impeachment
proceedings, the managers on the part of the House prepared and
submitted the replication to the Senate without its consideration by the
House, contrary to former practice (VI, 506). The Senate may consider in
closed session various preliminary motions made by respondent (e.g., to
declare the Senate rule on appointment of a committee to receive
evidence to be unconstitutional, to declare beyond a reasonable doubt as
the standard of proof in an impeachment trial, and to postpone the
impeachment trial) prior to voting in open session to dispose of those
motions (Oct. 7 and 8, 1986, pp. 29151 and 29412).

A replication is always filed (for the form of replication in modern
practice, see Sept. 26, 1988, p. 25357), and in one instance the
pleadings proceeded to a rejoinder, surrejoinder, and similiter (III,
2455). A respondent has also filed a protest instead of pleading on the
merits (III, 2461), but there was objection to this and the Senate
barely permitted it. In another case respondent interposed a plea as to
jurisdiction of offenses charged in certain articles, but declined to
admit that it was a demurrer with the admissions pertinent thereto (III,
2125, 2431). In the Belknap trial the House was sustained in averring in
pleadings as to jurisdiction matters not averred in the articles (III,
2123). The right of the House to allege in the replication matters not
touched in the articles has been discussed

Sec. 614. Examination of witnesses.

Witnesses. The practice
is to swear the witnesses in open House, and then examine them there; or
a committee may be named, who shall examine them in committee, either on
interrogatories agreed on in the House, or such as the committee in
their discretion shall demand. Seld. Jud., 120, 123.

In trials before the Senate witnesses have always been examined in
open Senate, although examination by a committee has been suggested
(III, 2217) and utilized (S. Res. 38, 101st Cong., Mar. 16, 1989, p.
4533). In the 74th Congress, the Senate amended its rules for
impeachment trials to allow the Presiding Officer, upon the order of the
Senate, to appoint a committee to receive evidence and take testimony in
the trial of any impeachment (May 28, 1935, p. 8309). In the trial of
Judge Claiborne the Senate directed the appointment of a committee of
twelve Senators to take evidence and testimony pursuant to rule XI of
the Rules of Procedure and Practice in the Senate when Sitting on
Impeachment Trials (S. Res. 481, Aug. 15, 1986, p. 22035); and in Nixon
v. United States, 113 S. Ct. 732 (1993), the Supreme Court refused to
declare unconstitutional the appointment of such a committee to take
evidence and testimony.

[[Page 310]]

and goods. Id., 188.
This, Selden says, is the only jury he finds recorded in Parliament for
misdemeanors; but he makes no doubt, if the delinquent doth put himself
on the trial of his country, a jury ought to be impaneled, and he adds
that it is not so on impeachment by the Commons, for they are in loco
proprio, and there no jury ought to be impaneled. Id., 124. The Ld.
Berkeley, 6 E., 3, was arraigned for the murder of L. 2, on an
information on the part of the King, and not on impeachment of the
Commons; for then they had been patria sua. He waived his peerage, and
was tried by a jury of Gloucestershire and Warwickshire. Id., 126. In 1
H., 7, the Commons protest that they are not to be considered as parties
to any judgment given, or hereafter to be given in Parliament. Id., 133.
They have been generally and more justly considered, as is before
stated, as the grand jury; for the conceit of Selden is certainly not
accurate, that they are the patria sua of the accused, and that the
Lords do only judge, but not try. It is undeniable that they do try; for
they examine witnesses as to the facts, and acquit or condemn, according
to their own belief of them. And Lord Hale says, ``the peers are judges
of law as well as of fact;'' 2 Hale, P. C., 275; Consequently of fact as
well as of law.

Sec. 615. Relation of jury trial to
impeachment.

Jury. In the case of Alice Pierce, 1 R., 2, a jury was impaneled for
her trial before a committee. Seld. Jud., 123. But this was on a
complaint, not on impeachment by the Commons. Seld. Jud., 163. It must
also have been for a misdemeanor only, as the Lords spiritual sat in the
case, which they do on misdemeanors, but not in capital cases. Id., 148.
The judgment was a forfeiture of all her lands

No jury is possible as part of an impeachment trial under the
Constitution (III, 2313).

[[Page 311]]

they are to attend throughout, either as a committee
of the whole House, or otherwise, at discretion, appoint managers to
conduct the proofs. Rushw. Tr. of Straff., 37; Com. Journ., 4 Feb.,
1709-10; 2 Wood., 614. And judgment is not to be given till they demand
it. Seld. Jud., 124. But they are not to be present on impeachment when
the Lords consider of the answer or proofs and determine of their
judgment. Their presence, however, is necessary at the answer and
judgment in case capital Id., 58, 158, as well as not capital; 162. * *
*.

Sec. 616. Attendance of the Commons.

Presence of Commons.
The Commons are to be present at the examination of witnesses. Seld.
Jud., 124. Indeed,

Sec. 617. Attendance of the House of
Representatives.

The House of Representatives has consulted its own
inclination and convenience about attending its managers at an
impeachment. It did not attend at all in the trials of Blount, Swayne,
Archbald. Louderback and Ritter (III, 2318, 2483; VI, 504, 516); and
after attending at the answer of Belknap, decided that it would be
represented for the remainder of the trial by its managers alone (III,
2453). At the trial of the President the House, in Committee of the
Whole, attended throughout the trial (III, 2427), but this is
exceptional. In the Peck trial the House discussed the subject (III,
2377) and reconsidered its decision to attend the trial daily (III,
2028). While the Senate is deliberating the House does not attend (III,
2435); but when the Senate votes on the charges, as at the other open
proceedings of the trial, it may attend (III, 2388, 2383, 2440). While
it has frequently attended in Committee of the Whole, it may attend as a
House (III, 2338).

Sec. 618. Voting on the articles in an impeachment
trial.

* * * The Lords debate the judgment among themselves. Then the vote is
first taken on the question of guilty or not guilty; and if they
convict, the question, or particular sentence, is out of that which
seemeth to be most generally agreed on. Seld. Jud., 167; 2 Wood., 612.

[[Page 312]]

trial there was much deliberation over this subject (III,
2466). In the Chase trial the Senate modified its former rule as to form
of final question (III, 2363). The yeas and nays are taken on each
article separately (III, 2098, 2339) in the form ``Senators, how say
you? is the respondent guilty or not guilty?'' (Oct. 9, 1986, p. 29871).
But in the trial of the President the Senate, by order, voted on the
articles in an order differing from the numerical order (III, 2440),
adjourned after voting on one article (III, 2441), and adjourned without
day after voting on three of the eleven articles (III, 2443). In other
impeachments, the Senate has adopted an order to provide the method of
voting and putting the question separately and successively on each
article (VI, 524; Apr. 16, 1936, p. 5558).

The question in judgment in an impeachment trial has occasioned
contention in the Senate (III, 2339, 2340), and in the trial of the
President the form was left to the Chief Justice (III, 2438, 2439). In
the Belknap

[[Page 313]]

ments (but 2 Wood., 614, contra), but not in misdemeanors, Seld. Jud., 136.

Sec. 619. Judgment in
impeachments.

Judgment. Judgments in Parliament, for death have been strictly guided per
legem terrae, which they can not alter; and not at all according to
their discretion. They can neither omit any part of the legal judgment
nor add to it. Their sentence must be secundum non ultra legem. Seld.
Jud., 168, 171. This trial, though it varies in external ceremony, yet
differs not in essentials from criminal prosecutions before inferior
courts. The same rules of evidence, the same legal notions of crimes and
punishments, prevailed; for impeachments are not framed to alter the
law, but to carry it into more effectual execution against too powerful
delinquents. The judgment, therefore, is to be such as is warranted by
legal principles or precedents. 6 Sta. Tr., 14; 2 Wood., 611. The
Chancellor gives judgment in misdemeanors; the Lord High Steward
formerly in cases of life and death. Seld. Jud., 180. But now the
Steward is deemed not necessary. Fost., 144; 2 Wood., 613. In
misdemeanors the greatest corporal punishment hath been imprisonment.
Seld. Jud., 184. The King's assent is necessary to capital judg-

The Constitution of the United States (art. I, sec. 3, cl. 7) limits
the judgment to removal and disqualification.

The order of judgment following conviction in an impeachment trial is
divisible for a separate vote if it contains both removal and
disqualification (III, 2397; VI, 512; Apr. 17, 1936, p. 5606), and an
order of judgment requires a majority vote (VI, 512; Apr. 17, 1936, p.
5607). Under earlier practice, after a conviction the Senate voted
separately on the question of punishment (III, 2339, 2397), but under a
recent ruling, no vote is required by the Senate on judgment of removal
from office following conviction, since removal follows automatically
from conviction under article II, section 4 of the Constitution (Apr.
17, 1936, p. 5607). Thus, the Presiding Officer directs judgment of
removal from office to be entered and the respondent removed from office
without separate action by the Senate on the question of punishment
where disqualification is not contemplated (Oct. 9, 1986, p. 29873).

Sec. 620. Impeachment not interrupted by
adjournments.

Continuance. An impeachment is not discontinued by the dissolution of
Parliament, but may be resumed by the new Parliament. T. Ray 383; 4 Com.
Journ., 23 Dec., 1790; Lord's Jour., May 15, 1791; 2 Wood., 618.

In Congress impeachment proceedings are not discontinued by a recess
(III, 2299, 2304, 2344, 2375, 2407, 2505); and the Pickering impeachment
was presented in the Senate on the last day of the Seventh Congress
(III, 2320); and at the beginning of the Eighth Congress the proceedings
went on from that point (III, 2321). The resolution and articles of
impeachment against Judge Louderback were presented in the Senate on the
last day of the 72d Congress (VI, 515) and the Senate organized for and
conducted the trial in the 73d Congress (VI, 516). The resolution and
articles of impeachment against Judge Hastings were presented in the
Senate during the second session of the 100th Congress (Aug. 3, 1988, p.
20223) but were still pending trial by the Senate in the 101st Congress,
for which the House reappointed managers (Jan. 3, 1989, p. 84). But an
impeachment may proceed only when Congress is in session (III, 2006,
2462).}}