Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 112th Congress-Jefferson's Manual of Parliamentary Practice

[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 112th Congress]
[112nd Congress]
[House Document 111-157]
[Jeffersons Manual of ParliamentaryPractice]
[Pages 125-330]
[From the U.S. Government Publishing Office, www.gpo.gov]

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JEFFERSON'S MANUAL

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JEFFERSON'S MANUAL OF PARLIAMENTARY PRACTICE \¹\

sec. i--importance of adhering to rules

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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 which
have been adopted as they were found

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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.
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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 that 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 Rules and orders of the House.'' Rule XXIX,
Sec. 1105, infra. In 1880 the committee that 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.

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 inferred 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.

``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.

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

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

Those portions of the Manual that refer exclusively to Senate
procedure or that refer to English practice wholly inapplicable to the
House have been omitted. Paragraphs from the Constitution of the United
States have also been omitted, because the Constitution is printed in
full in this volume.
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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, decency, and regularity be
preserved in a dignified public body. 2 Hats., 149.

* * * * *

Whether the House is in order so that a Member may proceed in
debate is determined by the Chair (Apr. 23, 2008, p. _). Alleged
partiality in making such a determination has been renounced (July 31,
2008, p. _). The comportment of a presiding officer has formed the basis
of a question of privilege (Aug. 3, 2007, p. 22783).

sec. iii--privilege

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ance of the Crown, amounts in fact to a perpetual protection
against the course of justice. In 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
conniv

For a modern discussion of privileges of Members of Parliament, see
Report of Joint Committee on Parliamentary Privilege of the House of
Commons (H.C. 214-1, Mar. 30, 1999).

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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 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

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stood.'' (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 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 under

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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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 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, p. 964; Feb. 25, 1954, p. 2281; July 1, 1955, p. 9818; Apr.
12, 1956, p. 6258; Apr. 24, 1958, p. 7262; Apr. 29, 1958, p. 7636; Sept.
16, 1974, p. 31123; Jan. 19, 1977, p. 1728), but on one occasion, in
which 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 in which 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, p. 80; H. Res. 1429, July 27,
1976, p. 24089). 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, p. 3046; 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). If an official of both Houses of Congress
is subpoenaed in his official capacity, the concurrence of both Houses
by concurrent resolu

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tion 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,

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 thereof through the Clerk of the House
(see, e.g., H. Res. 12, Jan. 3, 1973, p. 30). 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 in which 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 VIII, added as rule L
in the 97th Congress (H. Res. 5, Jan. 5, 1981, pp. 98-113, see Sec. 697,
infra).

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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 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 also has 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), including an unreported resolution (adopted by
special rule) regarding initiating or intervening in judicial
enforcement of committee subpoenas (Feb. 14, 2008, p. _), which
authority was continued and expanded in the next Congress (sec. 4(f), H.
Res. 5, Jan. 6, 2009, p. _). For a discussion of the Office of General
Counsel, which was established to provide legal assistance and
representation to the House without regard to political affiliation and
in consultation with the Bipartisan Legal Advisory Group, see clause 8
of rule II, Sec. 670, infra.

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

Although 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 resolutions authorizing the chair 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(k)(1) of rule
X'') of expenses to employ such special counsel (H. Res. 1420, Aug. 26,
1976, p. 1858; 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 chair 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

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
other House that the Member have leave to attend, and the use of a
subpoena is of doubtful propriety (III, 1794). However, in one case 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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detained in confinement a fortnight and Randall three weeks, and
was reprimanded by the Speaker. In March, 1796, the House 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. 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

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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, because ``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, 19 U.S. (6
Wheat.) 204, 226, 227 (1821)). In 1828 an assault on the President's
secretary in the Capitol gave rise to a question of privilege that
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 because 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 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).

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 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'' (Kilbourn v. Thompson, 103 U.S. 168, 189 (1880); 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 (1897)). The nature of the punishment that the House may
inflict was discussed by the Court in Anderson's case (II, 1607;
Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821)).

[[Page 139]]

the House in violating its
privileges, honor, and dignity. He applied for habeas corpus.

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

In the case of Marshall v. Gordon, 243 U.S. 521 (1917), the Court
addressed the following situation:

Appellant, while United States Attorney for the Southern District of New
York, conducted a grand jury investigation that led to the indictment of
a Member of the House. 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 chair, 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 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.

No express power to punish for contempt was granted to the House 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 that 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 distinction between
legislative, executive, and judicial power, and repugnant to limitations
that 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 that in
and of themselves inherently prevent or obstruct the discharge of
legislative duty and to compel the doing of those things that are
essential to the performance of the legislative functions. As pointed
out in Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821), this implied
power in its exercise is limited to imprisonment during the session of
the body affected by the contempt.

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.

[[Page 140]]

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.
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

(See also McGrain v. Daugherty, 273 U.S. 135 (1927); Sinclair v.
United States, 279 U.S. 263 (1929); Jurney v. MacCracken, 294 U.S. 125
(1935); Quinn v. United States, 349 U.S. 155 (1955); Groppi v. Leslie,
404 U.S. 496 (1972).)

[[Page 141]]

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 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

[[Page 142]]

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
President; 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 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

[[Page 143]]

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.

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

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'' (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 involves the privileges of the House and may be offered from
the floor as privileged if offered by direction of the committee
reporting the resolution (e.g., Oct. 27, 2000, p. 25200). A committee
report to accompany such resolution may therefore be presented to the
House without regard to the three-day availability requirement for other
reports (see clause 4 of rule XIII; July 13, 1971, p. 24720). A
resolution with two resolving 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); as is a resolution with one resolving clause certifying
contemptuous conduct of several individuals (Oct. 27, 2000, p. 25200;
contrast, Deschler-Brown, ch. 30, Sec. 49.1). A contempt resolution may
be withdrawn as a matter of right before action thereon (Oct. 27, 2000,
p. 25200).

[[Page 144]]

been entered into between
the committee and the executive branch for access by the committee to
the documents that Anne Gorsuch had failed to submit and that were the
subject of the contempt citation (where the contempt had not yet been
prosecuted) (Aug. 3, 1983, p. 22692). In other cases in which compliance
had subsequently been attained 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, 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 the 106th Congress the House considered a
resolution directing the Speaker to certify to the United States
Attorney the refusal of three individuals to obey a subpoena duces tecum
and to answer certain questions while appearing under subpoena before a
subcommittee, which resolution was withdrawn before action thereon (H.
Res. 657, Oct. 27, 2000, p. 25217). In the 110th Congress, the House
adopted (by special rule) a resolution directing the Speaker to certify
to the United States Attorney the refusal of White House Chief of Staff
to produce documents to a committee, and former White House Counsel to
appear, testify, and produce documents to a subcommittee, each as
directed by subpoena (Feb. 14, 2008, p. _).
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 (Dec. 16, 1982, p. 31754). In the following
Congress, 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 had

A resolution laying on the table a message from the President
containing certain averments inveighing disrespect toward Members of
Congress was considered as a question of the privileges of the House as
a breach of privilege in a formal communication to the House (VI, 330).-

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 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.

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).

[[Page 145]]

effective only when sworn (e.g., H. Res. 26, 27; Jan. 6, 1983, p.
132). In one case, when a Member did not appear to take the oath, the
Speaker with the consent of the House appointed another Member to the
committee in his 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 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; Jan. 6, 1999, p. 42); 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.

It is recognized in the practice of the House that a Member may be
named to a committee before being 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

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.

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

Although the privilege of Members of the House 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).

[[Page 146]]

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. The Speech or Debate clause is not an impediment
to the enforcement within the House of the rule prohibiting
personalities in debate (clause 1 of rule XVII, May 25, 1995, p. 14436).

In United States v. Helstoski, 442 U.S. 477 (1979), the Supreme Court
discussed the ability of either an individual Member or the entire
Congress

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.

[[Page 147]]

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.

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

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 148]]

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, 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.

Where Members of the House 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 in which 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 in which 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 XXIII). 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). After
conviction but before the Senator's resignation, and while an appeal for
rehearing was pending, the Senate continued its investigation (II,
1282).

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 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.

[[Page 149]]

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.

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

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 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.
* * * * *

* * * * *
sec. vi--quorum

[[Page 150]]

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.

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

In the House 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 7 of rule XX 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 the Speaker has put the
pending question or proposition to a vote. Although it was formerly the
rule that a quorum was necessary for debate as well as business (IV,
2935-2949), in the 94th Congress the House restricted the Chair's
ability to recognize the absence of a quorum (clause 7 of rule XX).
Clause 5(c) of rule XX permits the House to operate with a ``provisional
quorum'' where the House is without a quorum due to catastrophic
circumstances. Title III of the Legislative Branch Appropriations Act,
2006, amended Federal election law to require States to hold special
elections for the House within 49 days after a vacancy is announced by
the Speaker in the extraordinary circumstance that vacancies in
representation from the States exceed 100 (P.L. 109-55; 2 U.S.C. 8).

sec. vii--call of the house

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 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.

[[Page 151]]

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.

Rule XX provides for a call of the House. Members do not rise on
answering, and quorum calls are normally conducted by electronic device
(clause 2(a) of rule XX). Clause 5(c) of rule XX permits the House to
operate with a ``provisional quorum'' where the House is without a
quorum due to catastrophic circumstances.
* * * * *

* * * * *
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.

On October 23, 2000, the House of Commons, pursuant to a Standing
Order, elected a new Speaker after rejection of twelve other nominees
offered one at a time as amendments to the question. The amendments were
offered after refusal of the ``Father of the House of Commons'' to
entertain a motion to change the Standing Order to require a preliminary
secret ballot. On March 22, 2001, and on October 29, 2002, the House of
Commons adopted Standing Order 1B, requiring that the election of a new
Speaker be by secret ballot (Standing Orders of the House of Commons--
Public Business 2003).

[[Page 152]]

For a discussion of the election of the Speaker of the House of
Representatives, 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
the 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 of vacating the Office of
President pro tempore; and that the President pro tempore holds office
at the pleasure of the Senate (II, 1417). In the 107th Congress the
Senate elected two Presidents of the Senate pro tempore for different
periods when the majority of the Senate shifted after inauguration of
the Vice President (S. Res. 3, Jan. 3, 2001, p. 7).

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.

[[Page 153]]

Trevor chosen. There have been no later
instances. 2 Hats., 161; 4 Inst., 8; L. Parl., 263.

Thorpe in execution, a new Speaker chosen, 31 H. VI, 3 Grey, 11; and
March 14, 1694, Sir John

The House, by clause 8 of rule I, has provided for appointment and
election of Speakers pro tempore. Relying on the Act 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. 115).

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.

A resolution declaring the Office of Speaker vacant presents a
question of constitutional privilege (VI, 35), though the House has
never removed a Speaker. It has on several occasions removed or
suspended other officers, such as Clerk and Doorkeeper (I, 287-290, 292;
II, 1417). A resolution for the removal of an officer is presented as a
matter of privilege (I, 284-286; VI, 35). The Speaker may remove the
Clerk, Sergeant-at-Arms, and Chief Administrative Officer under clause 1
of rule II.

* * * * *
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 154]]

tation 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. 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.

In the first years of Congress the President annually delivered an
address to the two Houses in joint session, and the House 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 presen

sec. xi--committees

Sec. 317. Appointment of standing committees; and
designation and duties of chairs 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 155]]

Before the 62d Congress, standing as well as select committees and
their chairs 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 chairs 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 5 of rule X as soon as they are able to perfect the lists. A
committee may order its report to be made by the chair, 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, p. 12871 (Burns of Hawaii)); and
the chair sometimes submits a report in which the chair has not
concurred (IV, 4670). Clause 2 of rule XIII requires that a report that
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 it is entirely within rule and usage for a committee to
conduct its proceedings in secret (III, 1694, 1732; IV, 4558-4564; see
also clause 2(g) of rule XI), and the House 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
that have not formally been reported to the House (V, 5080-5083; VIII,
2269, 2485, 2493; June 24, 1958, pp. 12120, 12122; Apr. 5, 1967, p.
8411). However, a complaint that certain remarks that might be uttered
in debate would improperly disclose executive-session material of a
committee is not cognizable as a point of order in the House if the
Chair is not aware of the executive-session status of the information
(Nov. 5, 1997, p. 24648). On one occasion a Member was 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, p. 12690). In one case the House authorized the clerk of
a committee to disclose by deposition its proceedings (III, 2604).

[[Page 156]]

Sec. 320. Reception of petitions by committees.

Under clause 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 record vote, with a majority
present, determines to close the meeting or hearing for that day for the
reasons stated in that clause. In addition, clause 2(k) of rule XI
establishes a procedure for closing a hearing because of defamatory,
degrading, or incriminating testimony. Clause 11(d) of rule X
establishes special rules governing the closing of hearings of the
Permanent Select Committee on Intelligence.
* * * Nor
can they receive a petition but through the House. 9 Grey, 412.

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.

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

Although 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, because 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).

[[Page 157]]

Sec. 323. Inquiries involving Members of other
House.

And where one House, by a 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 chair 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. 801, 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.

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 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 chair in one notable instance (IV, 4424), and in
another the joint committee elected its chair (IV, 4447).

sec. xii--committee of the whole

[[Page 158]]

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 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

This provision is largely obsolete, the House 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.

Sec. 327. Selection of Chair 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. * * *

[[Page 159]]

The House (by clause 1 of rule XVIII) gives the authority to appoint
the chair 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, except that the chair of the Committee
of the Whole sits in the Speaker's chair. Clause 1(b) of rule XVIII
(former rule XXIII) was adopted to authorize the Speaker, and it is the
modern practice, 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 of business providing for
consideration of such measure (and not require a motion), 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. * * *

Until 1890 a quorum of the Committee of the Whole was the same as the
quorum of the House; but in 1890 the rule (formerly clause 2 of rule
XXIII, current clause 6 of rule XVIII) fixed it at one hundred (IV,
2966). Clause 6 of rule XVIII provides the procedure that is followed in
Committee of the Whole in case of failure of a quorum.

[[Page 160]]

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, 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 Chair without a formal motion
from the floor (IV, 4786, footnote; Jan. 28, 1980, p. 888; Feb. 8, 1995,
p. 4112); but at this rising the House may not have the message read or
transact other business except by unanimous consent (IV, 4787-4791).
However, it is the general custom for the Speaker to decline to
entertain a unanimous-consent request during an informal rising of the
Committee of the Whole (IV, 4789, Apr. 6, 2000, p. 4778).

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 161]]

In the House 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 the Speaker may yield to the chair that the
committee may rise in due form (II, 1349). In one instance, the Chair,
having been defied and insulted by a Member, left the chair; and, on the
chair being taken by the Speaker, he reported the facts to the House
(II, 1653). In several cases Members who have quarreled 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, because in the practice of the House there
is but one Committee of the Whole, which is in its nature a standing
committee with calendars of business. It is never dissolved, and bills
remain on its calendar until reported in the regular manner after
consideration (IV, 4705). After restoring order, the Speaker usually
leaves the chair, thus permitting the committee later to rise in due
form (II, 1349).

[[Page 162]]

mittee 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 chair, the
chairman informs him that the com

In the practice of the House the previous question and motion to
adjourn are not admitted in Committee of the Whole; but the rules
(clause 8 of rule XVIII) provide for closing five-minute debate by
motion. When the committee rises without concluding a matter the Chair
reports that it ``has 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 Chair reports a matter concluded in committee. The
report is made and received as a matter of course, and is 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; June 10, 1999, p.
12471). A Member yielded time in general debate may not yield to another
for such motion (Feb. 22, 1950, p. 2178; May 17, 2000, p. 8200). 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. 8770). The motion to rise may not include
restrictions on the amendment process or limitations on future debate on
amendments (June 6, 1990, p. 13234). The motion that the Committee of
the Whole rise is not debatable (May 17, 2000, p. 8203). For a further
discussion of the motion to rise, see Sec. 983, infra. For a point of
order against the motion to rise and report an appropriation bill to the
House where the bill, as proposed to be amended, exceeds an applicable
allocation of new budget authority under section 302(b) of the
Congressional Budget Act of 1974, and procedures for the Committee of
the Whole in the event that the point of order is sustained, see
Sec. 1044b, infra.

[[Page 163]]

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 (IV, 4909). 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; clause 7 of rule XX).

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 chair 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). In
one instance, however, the committee reported with a bill a resolution
relating to an alleged

[[Page 164]]

to postpone requests for a
recorded vote, the Chair's order of voting on the matter as unfinished
business determines which amendment (if both were adopted) would be
reported to the House (Aug. 6, 1998, pp. 19098-107). Normally, if the
Committee of the Whole perfects a bill by adopting certain amendments
and then adopts an amendment striking all after section one of the bill
and inserting a new text, only the bill, as amended by the motion to
strike and insert, is reported to the House; but when the bill is being
considered under a special rule permitting a separate vote in the 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 a section of a
committee substitute, but not on perfecting amendments that 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,
because 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 if 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 of business 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,
because only one amendment in its perfected form has been reported back
to the House (Nov. 17, 1983, p. 33463).

Sec. 336. Amendments in Committee of the
Whole.

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 of business 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 before 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.
468). 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. 121). 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 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 and inserting new text, only the latter
amendment is reported to the House (June 20, 1967, p. 16497). Where two
amendments proposing inconsistent motions to strike and insert a pending
section are considered as separate first degree amendments (not one as a
substitute for the other) before either is finally disposed of under a
special procedure permitting the Chair

[[Page 165]]

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. 2043). A Member may withdraw a demand
for a separate vote in the House on an amendment reported from Committee
of the Whole before 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. 10654), 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. 4733; Mar. 25, 1993, pp. 6358,
6359). For former automatic reconsideration in the House of amendments
if the votes of Delegates and the Resident Commissioner were decisive,
see Sec. 985, infra.

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) unless a
special rule mandates that sundry amendments be put en gros (June 24,
2009, p. _). 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

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 166]]

is not read in full again in the House when
reported and acted on. The chair of the Committee of the Whole who
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 offer 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
following disposition of amendments to the text and pending third
reading (May 25, 1993, pp. 11036, 11037).

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),

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 chair,
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.

The House provides by rule (clause 11 of rule XVIII) 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.

[[Page 167]]

<>
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 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).

In the House 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
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 2 of rule II). 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 chair of a full committee. Authorized subpoenas are signed by the
chair 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
McGrain v. Daugherty, 273 U.S. 135 (1927); Barry v. U.S. ex. rel.
Cunningham, 279 U.S. 597 (1929); Sinclair v. United States, 279 U.S. 263
(1929). Under section 2954 of title 5, United States Code, an executive
agency, if so requested by the Committee on Government Operations (now
Oversight and Government Reform), or any seven members thereof, shall
submit any information requested of it relating to any matter within the
jurisdiction of the committee.

[[Page 168]]

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
Journal. 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.

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

The Committee of the Whole of the House was charged with an
investigation in 1792, but the procedure was wholly exceptional (III,
1804), although a statute still empowers the chair of the Committee of
the Whole, as well as the Speaker, chairs of select or 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 hearings by
committees (Sec. 803, 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
(1949). 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).

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.

[[Page 169]]

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 (1927); Barry v. U.S. ex. rel.
Cunningham, 279 U.S. 597 (1929); Jurney v. MacCracken, 294 U.S. 125
(1935).

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 also has arraigned
at its bar contumacious

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.

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
protested that it was an invasion of his constitutional privilege (III,
1777, 1778; see also H. Rept. 67-1372, and Jan. 25, 1923, pp. 2415-23).
In one instance the chair 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).

[[Page 170]]

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.

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

The House 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.

[[Page 171]]

nesses 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 hearings may be accompanied by their own
counsel for the purpose of advising them concerning their constitutional
rights (Sec. 803, infra). In examinations preliminary to impeachment
counsel usually have been admitted (III, 1736, 2470, 2516) unless in
cases wherein such proceedings were ex parte. During impeachment
investigations against President Nixon and President Clinton, 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; H.
Rept. 105-830, Dec. 16, 1998, p. 27819).
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 wit

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 Lobbying Disclosure Act of 1995 requires all
lobbyists to register with the Clerk of the House and the Secretary of
the Senate (2 U.S.C. 1603).

sec. xiv--arrangement of business

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

[[Page 172]]

priority of right to their attention in
the general order of business.
* * * * *
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

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 XIV; 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.

In the House 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
(providing relief in the existing national emergency in banking),
following a message from the President recommending its immediate
passage (Mar. 9, 1933, pp. 75-84).

[[Page 173]]

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.

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

In Jefferson's time the principles of this comment would have applied
to both House and Senate; but in the House the order of business may be
interrupted at the will of the majority only by certain specified
matters (see annotations following rule XIV). For matters not thus
specified, interruption of the order takes place only by unanimous
consent. For a discussion of the Speaker's policy of conferring
recognition for such unanimous-consent requests, see Sec. 956, infra.

* * * * *
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.

In the House 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 2 of rule II). The Parliamentarian has the
responsibility for compiling and updating the precedents (2 U.S.C. 28).
The Committee Reform Amendments of 1974 gave the Speaker the
responsibility 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 rulings to give precedent its proper
influence (II, 1317), because the advantage of such a course is
undeniable (IV, 4045). But decisions of the Speakers on questions of
order are not like judgments of courts that 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.

sec. xvi--order respecting papers

[[Page 174]]

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.

In the House 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). Alleged abuse of power in the processing and enrollment of
bills has formed the basis of questions of privilege (Feb. 16, 2006, p.
1948; May 22, 2008, p. _). Although engrossing papers must be at the
desk, additional copies of a pending measure are not required (June 26,
2009, p. _). The Clerk signs engrossments; the Speaker signs enrollments
(1 U.S.C. 106).

<>
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 the decorum of Members is regulated by rule XVII; and
this provision of the parliamentary law is practically obsolete.

[[Page 175]]

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.

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,

<> 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.

This provision has been superseded by clause 1 of rule XVII. 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 particular seat
because seats are no longer assigned (V, 4979, footnote).

Except as provided in clause 4 of rule XVII, no question is put as to
the right of a Member to the floor.

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.

[[Page 176]]

In the House recognition by the Chair is governed by clause 2 of rule
XVII 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.

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

The House has modified the parliamentary law as to a Member's right to
speak a second time by clause 3 of rule XVII and by permitting a Member
controlling time in debate to yield to another more than once (Apr. 5,
2000, p. 4497; Oct. 18, 2007, p. 27575). In ordinary practice rule XVII
is not rigidly enforced, and Members find little difficulty in making
such explanations as are contemplated by the parliamentary law.

[[Page 177]]

within his knowledge; then he may, with their leave, state the
matter of fact. 3 Grey, 38.

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

This provision is usually observed in the practice of the House only
with regard to the conduct of the Speaker when in the chair. 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
criticized (II, 1369), in a case wherein there had been unusual
occurrences in the joint session 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 that 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 the privilege was rarely exercised in
early practice (II, 1367, footnote).

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 XVII, provides that remarks must be
confined to the question under debate, but neither by rule nor practice
has the House suppressed superfluous or tedious speaking, its hour rule
(clause 2 of rule XVII) 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 178]]

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 (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.

In the practice of the House it has been held out of order in debate
to cast reflections on either the House or its membership or its
decisions,

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
a Member 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, p. 17314). A mere reference to a Member's voting record does
not form a basis for a point of order against those remarks (June 13,
2002, p. 10226, p. 10232).

By rule of the House (clause 1 of rule XVII), 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. 25778). The
House has censured a Member for gross personalities (II, 1251). The
Chair may intervene to prevent improper references if it is evident that
a particular Member is being described (Nov. 3, 1989, p. 27077).

[[Page 179]]

another Member of deceit engages in personality, merely
accusing another Member of making a mistake does not (Oct. 26, 2000, p.
24921).
The Chair does not rule on the veracity of a statement made by a
Member in debate (Apr. 9, 1997, p. 4926; Sept. 26, 2008, p. _). Although
accusing

Clause 1 of rule XVII has been held to proscribe: (1) referring to an
identifiable group of sitting Members as having committed a crime (e.g.,
stealing an election or obstructing justice) (Feb. 27, 1985, p. 3898;
Speaker Wright, Mar. 21, 1989, p. 5016; May 19, 1998, p. 9738; July 15,
2004, p. 15859); (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. 15915) or ``mean-
spirited'' (May 13, 1992, p. 11235); (5) questioning the integrity of a
Member (July 25, 1996, p. 19170); (6) denunciating the spirit in which a
Member had spoken (V, 6981); (7) using a Member's surname as though an
adjective for a word of ridicule (June 13, 2002, p. 10232; May 13, 2008,
p. _); (8) questioning the decency of another Member (Mar. 21, 2007, p.
7074).

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. 2214; Mar. 8, 1995, pp. 7307, 7308; Nov.
17, 1995, p. 33832; June 13, 1996, p. 14043; July 16, 2008, p. _). For
example, references to ``down-in-the-dirt gutter politics'' and ``you
people are going to pay'' were held not to be personal references (Nov.
14, 1995, p. 32388). 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. 31413). The Chair also has
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. 4926). A general statement seeming to invoke racial
stereotypes but not in a context so inflammatory as to constitute a
breach of decorum, was held not unparliamentary (Apr. 9, 2003, p. 9005
(sustained by tabling of appeal)). Likewise, a general statement linking
politics with armed conflict in an impersonal way was held not to breach
decorum (Oct. 18, 2007, p. 27578).

[[Page 180]]

A Member may not read in debate extraneous material critical of
another Member that would be improper if spoken in the Member's own
words (May 25, 1995, pp. 14436, 14437; Sept. 12, 1996, p. 22898). Thus,
words in a telegram read in debate that 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).

A Member should refrain from references in debate to the official
conduct of a Member if such conduct is not the subject then pending
before the House by way of either a report of the Committee on Ethics or
another question of the privileges of the House (see, e.g., July 24,
1990, p. 18917; Mar. 19, 1992, p. 6078; May 25, 1995, pp. 14434-37;
Sept. 19, 1995, pp. 25454, 25455; Apr. 27, 2005, p. 8049); and, although
such references are ordinarily enforced by the Chair in response to a
point of order, the Chair may take the initiative in order to maintain
proper decorum (Apr. 1, 1992, p. 7899; June 17, 2004, p. 12748). This
stricture also precludes a Member from reciting news articles discussing
a Member's conduct (Sept. 24, 1996, p. 24318), reciting the content of a
previously tabled resolution raising a question of the privileges of the
House (Nov. 17, 1995, p. 33853; Sept. 19, 1996, p. 23855), or even
referring to a Member's conduct by mere insinuation (Sept. 12, 1996, p.
22899). 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. 23811).

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. 7899), including conduct that has previously been
resolved by the Committee on Ethics or the House (Sept. 24, 1996, pp.
24483, 24485; Apr. 17, 1997, p. 5831). 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. 20, 1995, pp. 25825, 25826; Sept. 12, 1996, pp.
22900, 22901).

Debate on a pending privileged resolution recommending disciplinary
action against a Member may necessarily involve personalities. However,
clause 1 of rule XVII still prohibits the use of language that is
personally abusive (see, e.g., July 31, 1979, p. 21584; Jan. 21, 1997,
p. 393) and the Chair may take the initiative to prevent violations of
the rule (July 24, 2002, p. 14300). Furthermore, during the actual
pendency of such a resolution, a Member may discuss a prior case
reported to the House by the Committee on Ethics 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 181]]

24, 1996, p. 24317); (3) to an investigation
undertaken by the committee, including suggestion of a course of action
(Mar. 3, 1995, p. 6715; Sept. 24, 1996, p. 24317; Sept. 28, 1996, p.
25778) or advocacy of an interim status report by the committee (Sept.
12, 1996, p. 22900; Sept. 28, 1996, p. 25778).
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 (now Ethics) (June 15, 1988, p. 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 (Apr. 1, 1992, p. 7899; Mar. 3, 1995, p. 6715; Sept. 19, 1996,
p. 23812; Sept.

For precedents applicable to references in debate to the President,
see Sec. 370, infra, or Members of the Senate, see Sec. 371, infra.

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. 552; Jan. 19, 1995,
p. 1599). It is not in order to arraign the personal conduct of the
Speaker (Jan. 18, 1995, p. 1441; Jan. 19, 1995, p. 1601). 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. 33394), or
to refer to official conduct of the Speaker that has previously been
resolved by the Committee on Standards of Official Conduct (now Ethics)
or the House (Apr. 17, 1997, p. 5831). 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. 6077; May 13, 2008, 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. 24485).

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.

[[Page 182]]

5162). However, remarks in debate may address political, but
not personal, motivations for legislative positions (Jan. 24, 1995, p.
2214; Mar. 8, 1995, pp. 7307, 7308; Nov. 17, 1995, p. 33832; June 13,
1996, p. 14043) or for committee membership (July 10, 1995, pp. 18257-
59). Accusing another Member of hypocrisy has been held not in order
(July 24, 1979, p. 20380; Mar. 29, 1995, p. 9675), 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. 31413). Although in debate the assertion of one Member may be
declared untrue by another, in so doing an intentional misrepresentation
must not be implied (V, 5157-5160), and if stated or implied is
censurable (II, 1305). A Member in debate having declared the words of
another ``a base lie,'' censure was inflicted by the House on the
offender (II, 1249).

The arraignment of the motives of Members is not permitted (V, 5147-
51; Dec. 13, 1973, p. 41270), and Speakers have intervened to prevent
it, in the earlier practice preventing even mildest imputations (V,
5161,

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

[[Page 183]]

Chamber, including those in the well, so long as
not crossing between the Member having the floor and the Chair (June 5,
1998, p. 11170). 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), because it is not in order to engage in disruption while
another is delivering remarks in debate (June 27, 1996, p. 15915). 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 (Jan. 5, 1993, p.
105). Under this provision, the Chair may require a line of Members
waiting to sign a discharge petition to proceed to the rostrum from the
far right-hand aisle and require the line not to stand between the Chair
and Members engaging in debate (Oct. 24, 1997, p. 23293). Hissing and
jeering is not proper decorum in the House (May 21, 1998, p. 10282). For
further discussion of interruptions in debate, see Sec. 946, infra.

The House has, by clause 5 of rule XVII, 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 to 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 referred to during debate
(Aug. 2, 1984, p. 22241). A Member may ask another to yield from any
microphone in the

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.

In the House, 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).

[[Page 184]]

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.

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

This provision of parliamentary law should be in conjunction with
clause 4 of rule XVII, Sec. Sec. 960-961, 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 185]]

In several instances assaults and affrays have occurred on the floor
of the House. 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 (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).

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

[[Page 186]]

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.

The House has, by clause 4 of rule XVII, provided a method of
procedure in cases of disorderly words. The House permits and requires
them to be

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,
which are separately empowered to enforce rules of decorum (clause 1(a)
of rule XI, which incorporates the provisions of rule XVII where
applicable). 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.

This provision of the parliamentary law is manifestly inapplicable to
the House (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. 37601); (3) an accusation
that the President ``frivolously vetoed'' a bill (Nov. 8, 1995, p.
31785).

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; Dec. 18, 1998, p. 27829); and Members
must abstain from comparisons to the personal conduct of sitting Members
of the House or Senate (Dec. 18, 1998, p. 27829). Furthermore, when
impeachment is not the pending business on the floor, Members may not
refer to evidence of alleged impeachable offenses by the President
contained in a communication from an independent counsel pending before
a House committee (Sept. 14, 1998, p. 20171; Sept. 17, 1998, p. 20758),
although they may refer to the communication, itself, within the
confines of proper decorum in debate (Oct. 6, 1998, p. 23841).

[[Page 187]]

in order to call the President, or a presumptive
major-party nominee for President, a ``liar'' or accuse such person of
``lying'' (June 26, 1985, p. 17394; Sept. 24, 1992, pp. 27345, 27346;
Nov. 15, 1995, p. 32587; June 6, 1996, pp. 13228, 13229; Mar. 18, 1998,
p. 3937; Nov. 14, 2002, p. 22370; July 15, 2003, pp. 18172, 18173; Mar.
24, 2004, pp. 5115, 5116). Indeed, any suggestion of mendacity is out of
order. For example, the following remarks have been held out of order:
(1) suggesting that the President misrepresented the truth, attempted to
obstruct justice, and encouraged others to perjure themselves (Feb. 25,
1998, p. 2621); (2) accusing him of dishonesty (July 13, 2004, p. 15275;
June 29, 2005, p. 14770) or of failing to be honest (Apr. 14, 2011, p.
_), accusing him of making a ``dishonest argument'' (Sept. 12, 2006, p.
17851), charging him with intent to be intellectually dishonest (May 9,
1990, p. 9828), or stating that many were convinced he had ``not been
honest'' (Mar. 5, 1998, p. 2620); (3) accusing him of ``raping'' the
truth (Apr. 24, 1996, p. 8807), not telling the truth (Oct. 29, 2003, p.
26363), or distorting the truth (Sept. 9, 2003, pp. 21570-73); (4)
stating that he was not being ``straight with us'' (Nov. 19, 2003, p.
29811); (5) accusing him of being deceptive (Mar. 29, 2004, pp. 5523,
5524; Feb. 1, 2006, p. 647) or using ``deceptive rhetoric'' (Oct. 17,
2007, pp. 27534, 27538), fabricating an issue (July 6, 2004, pp. 14313,
14314), or intending to mislead (Oct. 6, 2004, p. 21053; July 12, 2007,
p. 18827); (6) accusing him of intentional mischaracterization, although
mischaracterization without intent to deceive is not necessarily out of
order (July 19, 2005, p. 16525).
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. 25147; Sept. 7, 2006, pp. 17381, 17382). Under this
standard it is not

[[Page 188]]

Vice President might
someday pardon the President for certain charges (Apr. 12, 2000, p.
5419); or discussing alleged criminal conduct (Sept. 10, 1998, p. 19976)
or ``illegal surveillance'' (June 20, 2006, p. 11935); (10) discussing
personal conduct even as a point of reference or comparison (July 16,
1998, p. 15784; Sept. 9, 1998, p. 19735); (11) asserting that a major-
party nominee had done something ``disgusting'' and ``despicable'' (Mar.
11, 2004, p. 4033); (12) asserting that a major-party nominee is not ``a
large enough person'' to apologize (Mar. 11, 2004, p. 4086) or that the
President does not care about black people (Sept. 8, 2005, p. 19797);
(13) describing his action as ``arrogant'' (Jan. 11, 2007, p. 998; Mar.
22, 2007, p. 7321) or ``mean-spirited'' (July 15, 2008, p. _); (14)
equating his decisions with regard to armed conflict as him having
``slaughtered'' thousands (Mar. 8, 2007, p. 5815) or that a soldier's
death was for his ``amusement'' (Oct. 18, 2007, pp. 27569, 27570). The
Chair may admonish Members transgressing this stricture even after other
debate has intervened (Jan. 23, 1996, p. 1144).
Furthermore, the following remarks have been held out of order as
unparliamentary references to the President, or to a presumptive major-
party nominee for President: (1) attributing to him ``hypocrisy'' (Sept.
25, 1992, p. 27674; Apr. 26, 2006, p. 6129); (2) accusing him of giving
``aid and comfort to the enemy'' (Jan. 25, 1995, p. 2352; May 6, 2004,
pp. 8601, 8602); (3) accusing him of ``demagoguery'' (Jan. 23, 1996, p.
1144; Jan. 24, 1996, pp. 1220, 1221; May 30, 1996, pp. 12646, 12647);
(4) calling him a ``draft-dodger'' (Apr. 24, 1996, pp. 8807, 8808; Sept.
30, 1996, p. 26603) or alleging unexcused absences from military service
(May 5, 2004, pp. 8417, 8418), including allegations that the President
was ``A.W.O.L.'' (Sept. 22, 2004, p. 18953); (5) describing his action
as ``cowardly'' (Oct. 25, 1989, p. 25817); (6) referring to him as ``a
little bugger'' (Nov. 18, 1995, p. 33974); (7) alluding to alleged
sexual misconduct on his part (May 10, 1994, p. 9697; Feb. 25, 1998, p.
1828; Mar. 5, 1998, p. 2620; May 18, 1998, p. 9418); (8) alluding to
unethical behavior or corruption (e.g., June 20, 1996, p. 14829; July 9,
2002, p. 12286; Oct. 29, 2003, pp. 26400-402), such as implying a cause-
and-effect relationship between political contributions and his actions
as President (e.g., May 22, 2001, p. 9028; Sept. 29, 2004, pp. 19976,
19977), including an accusation that the President had ``lined the
pockets'' of his ``political cronies'' and filled ``campaign coffers''
(Sept. 14, 2005, pp. 20238, 20239); (9) discussing ``charges'' leveled
at the President or under investigation (Mar. 19, 1998, p. 4094; June
11, 1998, p. 12025), including alluding to ``fund-raising abuses'' (Mar.
14, 2000, p. 2716) or speculating that the

A Member may not read in debate extraneous material personally abusive
of the President that would be improper if spoken in the Member's own
words (Mar. 3, 1993, p. 3958; Nov. 15, 1995, p. 32587; May 2, 1996, p.
10010; Mar. 17, 1998, p. 3799; July 15, 2003, p. 18170; Sept. 16, 2003,
pp. 22151, 22152; Oct. 17, 2007, p. 27538). This prohibition includes
the recitation of another Member's criticism of the President made off
the floor (even if recited as a rebuttal to such criticism) (Dec. 17,
1998, p. 27775).

The Chair has advised that the protections afforded by Jefferson's
Manual and the precedents against unparliamentary references to the
President, personally, do not necessarily extend to members of his
family (July 12, 1990, p. 17206).

References in debate to former Presidents are not governed by these
standards (Nov. 15, 1945, p. 10735; June 27, 2002, pp. 11844, 11845).

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 the capacity as a
candidate (Speaker Foley, Sept. 24, 1992, p. 27344); and this policy has
been extended to a presumptive major-party nominee for President (e.g.,
Apr. 22, 2004, pp. 7401, 7402). However, references to the past
statements or views of such nominee are not unparliamentary (May 6,
2004, p. 8554).

For discussion of the stricture against addressing remarks in debate
to the President, as in the second person, see Sec. 945, 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:

[[Page 189]]

rules requiring decorum in debate. Such right of
criticism is 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.
``The freedom of speech in debate in the House 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 criticize the official acts of the President and
other executive officers is beyond question, but this right is subject
to proper

``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. References in debate to the other House and its
Members.

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.

Until former clause 1 of rule XIV (currently clause 1 of rule XVII)
was amended in the 100th and 101st Congresses (H. Res. 5, Jan. 6, 1987,
p. 6; H. Res. 5, Jan. 3, 1989, p. 72), this principle of comity and
parliamentary law as described by Jefferson governed debate in the House
to the full extent of its provisions (see generally, V, 5095-5130; VIII,
2501-21; July 31, 1984, p. 21670; Deschler-Brown, ch. 29, Sec. 44). From
the 101st Congress through the 108th Congress, clause 1 of rule XVII
permitted some factual references that were a matter of public record,
references to the pendency or sponsorship in the Senate of certain
measures, factual descriptions concerning a measure under debate in the
House, and quotations from Senate proceedings relevant to the making of
legislative history on a pending measure. In the 109th Congress clause 1
was amended to permit debate to include references to the Senate or its
Members but within the general stricture that requires Members to avoid
personality (sec. 2(g), H. Res. 5, Jan. 4, 2005, p. 43). Under the new
standard, remarks may urge the Senate to take a particular action (Mar.
21, 2010, p. _). For a recitation of precedents under the former rule,
see Sec. 371 of the House Rules and Manual for the 108th Congress (H.
Doc. 107-284).

[[Page 190]]

licans of hypocrisy (May 16, 2005, p. 9757); (2)
referring to Senate Democrats as ``cowardly'' (May 18, 2005, p. 10136);
(3) accusing a Senator of making slanderous statements (June 17, 2005,
p. 13009; June 21, 2005, p. 13408); (4) attributing to a Senator a list
of offenses under investigation by the Securities and Exchange
Commission (Oct. 18, 2005, p. 22987); (5) accusing a Senator of giving
``aid and comfort'' to the enemy (Dec. 13, 2005, p. 28162); (6) accusing
a Senator of corruption (Oct. 13, 2009, p. _) or of taking bribes (Jan.
19, 2010, p. _); (7) stating a ``low opinion'' of the Senate (Apr. 1,
2011, p. _).
Since the adoption of the new rule, the following references to
Members of the Senate have been held unparliamentary: (1) accusing
Senate Repub

It remains the duty of the Chair to call to order a Member who engages
in personality with respect to a Senator (see Sec. 374, infra), and the
Chair may admonish a Member for unparliamentary references even after
intervening recognition (Oct. 12, 1999, p. 24954; Nov. 15, 2001, p.
22596). Although the Chair is under a duty to caution Members against
unparliamentary references, the Chair will not advise Members on how to
construct their remarks to avoid improper references (Feb. 25, 2004, pp.
2409-15).

The prohibition against improper references to Senators includes (1) a
reference not explicitly naming the Senator (VIII, 2512; Feb. 23, 1994,
p. 2658; June 30, 1995, p. 18153; Feb. 27, 1997, pp. 2768, 2769); (2)
the reading of a paper making criticisms of a Senator (V, 5127); (3) a
reference to another person's criticism of a Senator (Aug. 4, 1983, p.
23145). Similarly, the Chair has consistently held that if references to
the Senate are appropriate, the Member delivering them is not required
to use the term ``the other body,'' (Oct. 4, 1984, p. 30047) and, by the
same token, references to ``the other body'' will not cure
unparliamentary references directed to the Senate (e.g., Oct. 2, 2002,
p. 18913; Apr. 2, 2004, pp. 6394, 6395).

Under the earlier form of the rule, the Chair held that remarks in
debate during the pendency of an impeachment resolution may not include
comparisons to the personal conduct of sitting Members of the House or
Senate (Dec. 18, 1998, p. 27829) and remarks in debate may not criticize
words spoken in the Senate by one not a Member of that body in the
course of an impeachment trial (V, 5106). After examination by a
committee under the earlier form of the rule, 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). Under the earlier form of the rule, where a
Member had been assailed in the Senate, he was permitted to explain 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 were entertained as a matter of
privilege (V, 5129, 6980).

The precise standard in former clause 1 of rule XIV for references to
``individual Members of the Senate'' did not apply to references to
former Senators (Dec. 14, 1995, p. 36968).

[[Page 191]]

not) 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 in that context are not in order
(Oct. 30, 1979, p. 30150).
The official policies, actions, and opinions of a Senator who is a
candidate for President or Vice President (as, in modern practice, with
one who is

References in debate to the Vice President (as President of the
Senate) are governed by the standards of reference permitted toward the
President, as under the earlier form of the rule. As such, a Member may
criticize in debate the policies, or candidacy, of the Vice President
but may not engage in personality (Dec. 14, 1995, p. 36968; July 14,
1998, p. 15314; Sept. 20, 2000, p. 18639). For example, it is not in
order to allude to ``wrongdoings [including] fund-raising telephone
calls by the Vice President'' (Mar. 14, 2000, p. 2716); to attribute to
him a list of offenses under investigation by a special prosecutor (Oct.
18, 2005, p. 22987); to suggest that the House should investigate him in
connection with government contracts awarded to his former employer
(June 15, 2006, p. 11480); to speculate that he might someday pardon the
President (Apr. 12, 2000, p. 5419); to accuse him of lying (Sept. 20,
2000, p. 18639; Sept. 21, 2000, p. 18789; Feb. 16, 2006, p. 1960; Mar.
6, 2007, p. 5412); to suggest ``he has a problem with the truth'' (Oct.
5, 2000, p. 21014); to allege ``unethical behavior'' or ``corruption''
(see, e.g., Oct. 29, 2003, pp. 26400-402; Nov. 4, 2003, pp. 27070,
27071), including innuendo suggesting policy choices were made on the
basis of personal pecuniary gain (July 7, 2004, p. 14582; Sept. 13,
2005, pp. 20238, 20239) or accusations of abuse of power (July 14, 2004,
p. 15501); to describe him as ``arrogant'' (June 28, 2007, p. 17926;
Sept. 25, 2008, p. _). The rule also precludes the insertion in the
Record of a paper making improper references to the Vice President
(Sept. 19, 2000, p. 18580).

A Member may not read in debate extraneous material regarding the
Vice President that would be improper if spoken in the Member's own
words (Feb. 16, 2006, p. 1960).

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.

[[Page 192]]

the vote of a Senator in an impeachment
trial, the House declined to consider the matter as a breach of
privilege (III, 2657). Although 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 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).

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

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 expressions 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.

A rule of comity prohibiting most references in debate to the Senate
was first enunciated in Jefferson's Manual and was strictly enforced in
the House through the 108th Congress (albeit with certain exceptions
adopted in the 100th and 101st Congresses in the former clause 1(b) of
rule XVII) (Sec. 371, supra and Sec. 945, infra). In the 109th Congress
clause 1 was amended to permit references to the Senate or its Members,
even critical references, so long as avoiding personality (sec. 2(g), H.
Res. 5, Jan. 4, 2005, p. 43). Nevertheless, it remains the duty of the
Chair to call to order a Member who violates the rule in debate or
through an insertion in the Record.

[[Page 193]]

normally takes initiative (Feb. 27, 1997, pp. 2778, 2779). The
Chair may admonish Members to avoid unparliamentary references to the
Senate even after intervening recognition (Oct. 12, 1999, p. 24954).
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). Under the earlier form of clause 1 of rule XVII, the
Chair refused to respond to hypothetical questions as to the propriety
of possible characterizations of Senate actions before their use in
debate (Oct. 24, 1985, p. 28819). For a further discussion of the
Speaker's duties regarding unparliamentary debate, see Sec. Sec. 960-
961, infra.

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, as to which the Chair

Sec. 375. Course of the Member when business concerning
that Member is under debate.

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 withdraw 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.

[[Page 194]]

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; July 24, 2002, pp.
14299, 14309). 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).

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

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.

In the House it has not been usual for the Member to withdraw from
debate when the Member's private interests are concerned in a pending
measure, although clause 1 of rule III addresses voting in such a
contingency. In one instance the Senate disallowed 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).

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.

[[Page 195]]

Sec. 378. Adjournment of questions of order.

In 1837 the parliamentary practice of wearing hats during the session
was abolished by adoption of current clause 5 of rule XVII. See
Sec. 962, infra.
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.

As described in Sec. Sec. 628 and 628a, infra, the Speaker has
declined, on a difficult question of order, to rule until taking time
for examination (III, 2725; VI, 432; VII, 2106; VIII, 2174, 2396, 3475),
and may take a parliamentary inquiry under advisement, especially if not
related to the pending proceedings (VIII, 2174; Apr. 7, 1992, p. 8274).
However, 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. The law of Parliament evidently contemplates that the adjournment
of a question of order shall be controlled by the House. On occasion,
the Chair has reversed as erroneous a decision previously made (VI, 639;
VII, 849; VIII, 2794, 3435).

The Speaker's decision on a question of order is subject to appeal by
any Member (clause 5 of rule I).

sec. xviii--orders of the house

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.

[[Page 196]]

mand as a point of order
requiring a ruling by the Chair (May 1, 1996, pp. 9888, 9889).

<> 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). If 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; Nov. 7, 2009, p. _). 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 de

Absent an existing order for that purpose, a Member may not demand
that the galleries be cleared, because 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 chair of the Committee of the Whole (clause 1 of
rule XVIII), but not to the individual Member.

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

The rule of the House providing for raising the question of
consideration (clause 3 of rule XVI) has, in connection with the
practice as to special orders of business, 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.

[[Page 197]]

order is displaced by the use of special orders of
business or the intervention of privileged business.

The House 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 XIV. The House proceeds under rule XIV
unless that

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 is
concerned, because business goes on uninterruptedly until the Congress
expires (clause 6 of rule XI).

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.

The House, by clause 6 of rule XI and the practice thereunder, has
modified the rule of Parliament as to business pending at the end of a
session that 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 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. 12765). 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).

[[Page 198]]

ward 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.

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
to

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

The House has frequently examined its constitutional power to make
rules, and this power also has 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 also has 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). Congress may bind
itself in matters of procedure (II, 1341; V, 6767, 6768), but its
ability to so bind a succeeding Congress has been called into doubt (V,
6766). In one case the Chair denied the authority of such a law that
conflicted with a rule of the House (IV, 3579). 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). In modern practice, existing statutory procedures, including
provisions of concurrent resolutions, are readopted as Rules of the
House at the beginning of each Congress (see, e.g., H. Res. 6, Jan. 4,
1995, p. 462). This practice was codified in clause 1 of rule XXVIII
(current rule XXIX) when the House recodified its rules in the 106th
Congress (H. Res. 5, Jan. 6, 1999, p. 75, see Sec. 1105, 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, 1993, p.
22719).

[[Page 199]]

cussed, but not settled, its power to
compel a Member to accompany it outside 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.

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 (July 25, 2002, p. 14645), usually preferring
that its Members go individually (V, 7061-7064) or that it be
represented by a committee (V, 7053-7056) or other delegation (May 28,
1987, p. 14031). It has dis

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

sec. xix--petition

The Rules of the House make no mention of remonstrances, but do
mention petitions and memorials (clause 3 of rule XII). 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).

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 presenting 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.

[[Page 200]]

In the House petitions have been presented for many years by filing
with the Clerk (clause 3 of rule XII). Members file them, and
petitioners do not attend on the House in the sense implied in the
parliamentary law. In cases in which 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.

Before the adoption of the provisions of clause 3 of rule XII,
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.

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

[[Page 201]]

The House has long since dispensed with the requirement of a second
for ordinary motions (clause 1 of rule XVI; V, 5304); and the
requirement of a second for a motion to suspend the rules was eliminated
in the 102d Congress (H. Res. 5, Jan. 3, 1991, p. 39). Clause 2 of rule
XVI provides further that a motion may be withdrawn before decision or
amendment (see Sec. 904, infra); and clause 1 of the same rule provides
that the motion shall be reduced to writing on the demand of any Member
(see Sec. 902, infra). 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.

The practice of the House has modified the principle that the Member
who rises first is to be recognized (clause 2 of rule XVII); but in
other respects the principles of this paragraph are in force.

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.

[[Page 202]]

President, on account of doubt in his mind, according to clause 5
of rule XXII) 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.

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

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 (Dec. 20, 1982, p. 32875), providing for joint session to
receive message from the President (VIII, 3335, 3336), authorizing the
printing of congressional documents (July 1, 1969, p. 17948); 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 that become binding on both Houses
with respect to congressional budget procedures (see Sec. 1127, infra).
A concurrent resolution is binding on neither House until agreed to by
both (IV, 3379), and, because not legislative in nature, is not sent to
the President for approval (IV, 3483). A concurrent resolution is not a
bill or joint resolution within the meaning of clause 5 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. 13499). In the 106th Congress the Senate neglected to adopt
a House concurrent resolution vacating signatures of the Presiding
Officers on an enrolled bill and laying that bill on the table as
overtaken by another enactment (H. Con. Res. 234, adopted by the House
on Nov. 18, 1999, p. 30719). The Congress subsequently enacted section
1401 of the Miscellaneous Appropriations Act of 2001, which adopted that
concurrent resolution (as enacted by P.L. 106-554).

[[Page 203]]

(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); establishing the date for
convening of Congress (H.J. Res. 1041, P.L. 91-182); extending the
submission date under law for transmittal of a report to Congress by the
President (H.J. Res. 635, P.L. 97-469); and extending the termination
date for a law (H.J. Res. 864, P.L. 91-59). 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.

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 Lafayette to visit America (V, 7082,
footnote), 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

Where a choice between a concurrent resolution and a joint resolution
is not dictated by law, the House by its vote 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

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 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.

[[Page 204]]

This provision is obsolete because rule XII provides an entirely
different method of introducing bills through the hopper. The
introduction of bills by leave was gradually dropped by the practice of
the House, and after 1850 the present 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.

This provision is obsolete, the practice under clause 8 of rule XVI
now governing the procedure of the House.

sec. xxv--bills, second reading

[[Page 205]]

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?

The provisions of this paragraph are to a large extent obsolete, the
practice under clause 8 of rule XVI now governing.

sec. xxvi--bills, commitment

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 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.

This paragraph is to a large extent obsolete. Bills are referred in
the first instance by the Speaker to standing committees as prescribed
by the rules (rule XII), 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 that 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 11 of rule I).

[[Page 206]]

Clause 2 of rule XIX 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.

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 inapplicable in the House because committees have
majority and minority representation (IV, 4467, 4477, footnote).

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. * * *

[[Page 207]]

This procedure is rarely followed in the House, because the order of
business does not provide for such a motion.

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 chair 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).

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 if a matter involves a question of privilege (III, 2585,
2709; VIII, 2316), or is privileged under the rule relating to
resolutions of inquiry (clause 7 of rule XIII; III, 1871; IV, 4695) or
is provided privilege under statutes enacted under the rulemaking power
of the House (see Sec. 1130, infra), the motion to discharge is
admitted. The motion is not debatable (III, 1868; IV, 4695), except as
follows: (1) under statutory procedures; (2) under clause 2 of rule XV;
and (3) under modern practice of the House, a motion to discharge a
vetoed bill (Mar. 7, 1990, p. 3620; Sept. 19, 1996, p. 23815). 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. 792, infra.
In the House 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).

[[Page 208]]

the consent of the chair, call a meeting of the
committee on the same day (VIII, 2213). For restrictions on committee
action during a joint meeting or joint session, see clause 2(i) of rule
XI.
Standing committees fix regular weekly, biweekly, or monthly meeting
days for the transaction of business (not less frequently than monthly,
under clause 2(b) of rule XI), and additional meetings may be called by
the chair as deemed necessary or by a majority of the committee in
certain circumstances (clause 2(c) of rule XI). If a committee has a
fixed date of meeting, a quorum of the committee may convene on such
date without call of the chair and transact business regardless of the
absence of the chair (VIII, 2214). A committee meeting being adjourned
for lack of a quorum, a majority of the members of the committee may
not, without

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(h) of rule XI).

No measure or recommendation shall be reported from any committee
unless a majority of the committee were actually present (clause 2(h) 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 in which 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).

For each record 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 3 of rule XIII). A resolution alleging that a
committee report on a bill contained descriptions of recorded votes on
certain amendments as prescribed by clause 3(b) of rule XIII that
deliberately mischaracterized the amendments, and directing the chair of
the committee to file a supplemental report to change those
descriptions, qualified as a question of the privileges of the House
(May 3, 2005, p. 8417).

It is the duty of the chair of each committee to report or cause to be
reported promptly any measure approved by the committee and to take or
cause to be taken necessary steps to bring the matter to a vote (clause
2 of rule XIII); 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 of rule XIII).

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).

[[Page 209]]

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).
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 the Speaker may decide the question if satisfied of
the validity or of the invalidity of the authorization (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 the
Speaker 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,

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

Where a question was raised regarding a chair'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
of business) and not when filed in the hopper (May 16, 1989, p. 9356). A
resolution including an allegation that the chair deliberately and
improperly refused to recognize a legitimate and timely objection by a
member of the committee to dispense with the reading of an amendment and
resolving that the House disapproves of the manner in which the chair
conducted the markup and finding that the bill considered at that markup
was not validly ordered reported was held to constitute a question of
the privileges of the House (July 18, 2003, pp. 18698; July 23, 2003, p.
19171, 19172).

A majority quorum is required in certain circumstances, such as
reporting a measure or recommendation (clause 2(h) of rule XI);
authorizing a subpoena (clause 2(m) of rule XI); closing 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);
requesting immunity for a witness (18 U.S.C. 6005); releasing executive-
session material (clause 2(k)(7) of rule XI); and proceeding in open
session after an assertion under clause 2(k)(5) of rule XI. Each
committee may fix the number of its members, but not less than two, to
constitute a quorum for taking testimony and receiving evidence; 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).

[[Page 210]]

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,
338 U.S. 84 (1949). 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 if the witness failed to raise
that objection before the committee. United States v. Bryan, 339 U.S.
323 (1950); United States v. Fleischman, 339 U.S. 349 (1950).

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.

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 Ethics,
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). Formerly, a committee could close its doors in
executive session meetings to persons not invited or required, including
Members of the House who were not members of the committee (III, 1694;
IV, 4558-4565; see discussion at IV, 4540).

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

[[Page 211]]

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, 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,

In the House 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 5 of rule
XIII 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 before 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.

[[Page 212]]

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.

Sec. 413. Order of amending 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

In the House, 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 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 XVIII;
Sec. 980, infra; July 12, 1961, p. 12405).

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 213]]

mated 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 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 inti

[[Page 214]]

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. 11036).

In the practice of the House 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 of the joint resolution is not
voted on separately in the later practice even if amended, because the
question on passage covers the preamble as well as the resolving clause
(V, 6147, 6148; 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. 11036). 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,

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

Clause 2 of rule XIII provides that it shall be the duty of the chair
of each committee to report or cause to be reported promptly any measure
approved by the 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 of rule XIII. In the House a
committee may order its report to be made by the chair (IV, 4669), or by
any other member of the committee (IV, 4526), even one from the minority
party (IV, 4672, 4673; VIII, 2314). A committee report may be filed by a
Delegate (July 1, 1958, p. 12870). Only the chair 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.

[[Page 215]]

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).

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 that 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

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

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 216]]

ations 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
convenience, 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 alter

This provision is to a large extent obsolete so far as the practice of
the House 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 chair or other member of the committee from the floor
(clause 5 of rule XIII). Except as provided in clause 2(c) of rule XIII,
committee reports must be submitted while the House is in session; and
this requirement may be waived by only by order of the House (by rule,
suspension, or unanimous consent but not by motion) (Dec. 17, 1982, p.
31951). Subject to availability requirements under clause 4 and timing
considerations under clause 6 of rule XIII, all reports privileged under
clause 5 of rule XIII may be called up for consideration immediately
after being filed (H. Res. 988, 93d Cong., Oct. 8, 1974, p. 34406). For
a discussion of the three-day layover rule, see Sec. 850, infra.

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.

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

[[Page 217]]

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.

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

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 9 of rule XVIII; 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 218]]

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 2 of rule XII 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
(except under extraordinary circumstances), (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, 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).

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, bills, joint resolutions, concurrent resolutions, and
simple resolutions come before the House for action although 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, because 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 219]]

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 rejected,
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,

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 or pursuant to a special order of business.
On being taken from the House Calendar the bill is read through and then
the amendments proposed by the committee are read. In modern practice
the House may adopt a special order ``self-executing'' the adoption of
the reported committee amendments in the House, and may permit further
amendment to the amended text (e.g., H. Res. 245, 106th Cong., July 15,
1999, p. 16216).

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 220]]

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,
taking no question but on amendments. When

The House may proceed ``in the House as in Committee of the Whole''
only by unanimous consent (IV, 4923) or special rule (Dec. 18, 1974, p.
40858). If 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; Deschler, ch. 22, Sec. 2.2). 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 XVIII), 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.

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, see Sec. 427, infra.

[[Page 221]]

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.-

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

[[Page 222]]

tinues 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 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 con

[[Page 223]]

ered (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, 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 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, p. 21314). 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 consid

The procedures applicable in the House as in the Committee of the
Whole generally apply to proceedings in committees of the House, except
that a measure considered in committee must be read (by section) for
amendment (see Sec. 413, 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.

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 224]]

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 become 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

In the House the Clerk and not the Speaker or chair of the Committee
of the Whole reads bills on second reading. After the second reading,
which is by paragraph or section in the Committee of the Whole, the bill
is open to amendment (see Sec. 980, infra). Clause 8 of rule XVI, as
explained in Sec. 942, infra, governs first and second readings of bills
in the House and in Committee of the Whole.

[[Page 225]]

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 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.

<>
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 there are two other means of testing
strength: raising the question of consideration when the bill first
comes up (clause 3 of rule XVI), and moving to strike the enacting words
when it is first open to amendment (clause 9 of rule XVIII). By these
methods an adverse opinion may be expressed without permitting the bill
to consume the time of the House.

In the practice of the House 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 226]]

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
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.

Until the 103d Congress the House, by former rule XXX, had a
provision regarding the reading a paper other than that on which the
House is called to give a final vote (see Sec. Sec. 964, 965, infra).

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.

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

In the House ordinary reports are read only in time of debate (V,
5292). But in a few cases, in which 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).

[[Page 227]]

less a Member insists they shall be read,
and then nobody can oppose it. 2 Hats., 117.

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, un

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 3 of rule XII; clause 2 of rule XIV). end segment .003 segment .004
-- Jefferson from sec. xxxiii

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, by rule and practice, the system of privileged motions
and privileged questions has been highly developed (rule IX, clause 5 of
rule XIII, clause 1 of rule XIV, and clause 4 of rule XVI).

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

[[Page 228]]

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 recognizes for that purpose (H. Res. 6, p. 26). 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).
The rules and practice of the House 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

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
cannot be taken away but by another special order of business.

``Orders of the day'' were part of the regular and daily order of
business (IV, 3151). Although a mention of them has survived in clause 1
of rule XIV, they have disappeared from the practice of the House (IV,
3057) and should not be confused with ``special orders of business,''
which are resolutions reported from the Committee on Rules pursuant to
clause 5 of rule XIII to provide for consideration of matters not
regularly in order. The term ``special orders'' is also used separately
to describe permission to address the House at the conclusion of
legislative business.

[[Page 229]]

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 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 into an instrument of entirely different use (V, 5445; clause 1 of
rule XIX).

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 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.

[[Page 230]]

As already explained, in the House 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 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 that 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.

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.

[[Page 231]]

This is the use of the motion to lay on the table that is established
in the general parliamentary law, and was followed in the early practice
of the House. 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 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.

Postponement to a day within
Adjournment, E the session.

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

[[Page 232]]

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.

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 House governs these motions by clause 4 of rule XVI.

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:
1. Previous question and postpone

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 233]]

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.

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

Although 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.

[[Page 234]]

vious question, the question of amendment shall
be first put.

The fourth class. Amendment of the main question first moved, and
afterwards the pre

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.

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 amendment, if the House had it not in their
power to postpone the whole subject.

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, and are provided for by clause 4 of rule XVI.

[[Page 235]]

not on
the original primary question, but on the secondary one, e.g.:

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,

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.

Although the general principle that one secondary or privileged motion
should not be applied to another is generally recognized in the House,
the entire change in the nature of the previous question (V, 5445) from
a means of postponing a matter to a means of compelling an immediate
vote, makes obsolete the parliamentary rule. Because the motions to
postpone, commit, and amend are all debatable, the modern previous
question of course applies to them (clause 1 of rule XIX).

[[Page 236]]

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.

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.

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.

The principles of this paragraph are in harmony with the practice of
the House, 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.

[[Page 237]]

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. * * *

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

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

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 somewhere, 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.

This rule of the parliamentary law is considered fundamental in the
House (clause 6 of rule XVI).

[[Page 238]]

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 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

[[Page 239]]

ments changing other portions of the resolution
that have not been amended as well (Apr. 27, 1977, p. 12485). In recent
practice an amount in an appropriation bill has been changed by
inserting a parenthetical ``increased by'' or ``decreased by'' after the
amount rather than by directly changing the number.

The thirteenth rule of the Senate has been dropped. The House 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 10 of rule XVIII), adoption of a
perfecting amendment changing several figures precludes further
amendment merely changing those figures, but does not preclude more
comprehensive amend

Sec. 456. Priority of amendments over motions to
strike 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.

In the House the principle that a text should be perfected before a
question is taken on striking it, 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, that 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, but a question of
order arising after a motion for the previous question must be decided
without debate (clause 1 of rule XIX).

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.

[[Page 240]]

<> Reading papers relative to the question before the
House. This question must be put before the principal one. 2 Hats., 88.

Rule IX and the practice thereunder, confirm and amplify the
principles of this provision of the parliamentary law.

This provision formerly applied in the House to the reading of papers
other than those on which the House was to vote. That was under an
earlier form of clause 6 of rule XVII, 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. 963-
965, infra.

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.

The House does not vote on the withdrawal of motions, but provides by
clause 2 of rule XVI and clause 5 of rule XVIII the conditions under
which a Member may of 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.

[[Page 241]]

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.

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.

[[Page 242]]

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.

As explained in connection with clause 1 of rule XIX, the House
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

This parliamentary rule applies in the House, where the hour rule of
debate (clause 2 of rule XVII) 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 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 243]]

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, p. 15898), and the rejection of several amendments
considered en bloc does not preclude their being offered separately at a
subsequent time (Deschler, 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).

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

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 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 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 244]]

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 a lesser portion thereof,
and the perfecting amendment is voted on first (June 11, 1975, p.
18435). And when a motion to strike certain words is disagreed to, it is
in order to move to strike a portion of those words (V, 5769); but when
it is proposed to strike 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 one already stricken by amendment (V, 5760; Sept.
2, 1976, pp. 28939-58).

In the House the question herein described is never put, but is always
whether the words shall be stricken; 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

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

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.

[[Page 245]]

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). Although an amendment that 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; 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).
These principles are recognized as in force in the House, with the
exception that clause 5(c) of rule XVI specifically provides that the
rejection of a motion to strike shall preclude neither amendment nor
motion to strike 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. Where
a special order of business provides that an amendment inserting a
provision in the bill be considered as adopted, an amendment to strike
that provision is not in order (May 23, 2002, pp. 8920-24). However, 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 that
was adopted struck

Although it may be in order to offer an amendment to the pending
portion of the bill that 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 that have been changed by
amendment (Mar. 11, 1999, p. 4335), or to amend unamended portions that
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
(Deschler, ch. 27, Sec. 33.2; July 17, 1995, p. 19186), even if also
changing other matter not already amended, where drafted as though the
earlier amendment had not been adopted (Mar. 15, 1995, p. 8025; Mar. 16,
1995, p. 8110; Mar. 16, 1995, p. 8112; July 17, 1995, p. 19196). A point
of order that a pending amendment proposes to change portions of the
bill that have been changed by earlier amendment may be made after a
unanimous-consent request to modify the amendment has been disposed of
but before debate has begun (Mar. 11, 1999, p. 4335). Where the vote on
an amendment to strike a section and insert new language is postponed by
the chair of the Committee of the Whole, an amendment to strike the same
section and insert different language is in order; and if both
amendments are adopted, the second amendment adopted supersedes the
first and is the only one reported to the House (Aug. 6, 1998, p.
19125).

[[Page 246]]

strike a
paragraph is pending and the paragraph is perfected by an amendment,
striking and inserting an entire new text, the pending motion to strike
must fall, because it would not be in order to strike 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. 8781). A motion to strike and insert a portion
of a pending section is not in order as a substitute for a motion to
strike 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 (July 16, 1981, p. 16057).

When it is proposed to perfect a paragraph, a motion to strike it, 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.
10110; Oct. 12, 1995, p. 27816; July 27, 1999, p. 18074). If further
proceedings are postponed on the perfecting amendment, debate may
continue on the underlying motion to strike (July 27, 1999). While
amendments are pending to a section, a motion to strike it may not be
offered (V, 5771; VIII, 2861; Sept. 23, 1982, p. 24963; July 25, 1995,
p. 20299). 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. 20299). While a
motion to strike is pending, it is in order to offer an amendment to
perfect the language proposed to be stricken (Apr. 24, 1996, p. 8777);
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

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

Clause 5(c) of rule XVI provides that the motion to strike and insert
is not divisible. As to the manner of stating the question, the Clerk
reads only the words to be stricken and the words to be inserted.

[[Page 247]]

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.

Sec. 471. Conditions of repetition of motions to
strike 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

As to Jefferson's supposition that the principle would hold good in
case of division of the motion to strike and insert it is not necessary
to inquire, because clause 5(c) of rule XVI forbids division of that
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 the passage,
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.'' Where two amendments proposing
inconsistent motions to strike and insert a pending section are
considered as separate first degree amendments (not one as a substitute
for the other) before either is finally disposed of under a special
procedure permitting the Chair to postpone requests for a recorded vote,
the Chair's order of voting on the matter as unfinished business
determines which amendment (if both were adopted) would be reported to
the House (Aug. 6, 1998, pp. 19098-107).

Sec. 472. Application of the motion to
strike.

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

[[Page 248]]

move to insert B; in which
case those who preferred it would join in rejecting A.

Sec. 473. Effect of affirmative vote on motion to
strike 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

This principle controls the practice of the House (July 17, 1985, p.
19444; July 18, 1985, p. 19649; Deschler, ch. 27, Sec. 31.14).

Sec. 474. Conditions of striking 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.

Although 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 the pending title of a bill and re-insert all
sections of that title except one is not in order if that section has
previously been amended in its entirety (Aug. 1, 1975, p. 26946).

[[Page 249]]

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 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

The principles of this paragraph have been followed in the House (V,
5763; Aug. 16, 1961, p. 16059), 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 a part of the words of
this amendment with other words of the paragraph (V, 5766).

The motion to strike and insert may not be divided in the House
(clause 5(c) of rule XVI).

[[Page 250]]

ment. 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. * * *

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
amend

In the modern practice of the House 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. The
Committee on Rules may report a special order providing for
consideration of two bills and, after separate passage of each,
``linking'' the two by adding the text of the second to the engrossment
of the first and tabling the separate version of the second (e.g., June
16, 1999, p. 13080).

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.

This principle is followed in the practice of the House (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.

[[Page 251]]

In the modern practice of the House, section numbers and other
internal references are considered as part of the text that 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

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. 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.

The House, by clause 5 of rule XVI and the practice thereunder, has
entitled a procedure differing materially from that above set forth.
Although a resolution electing Members to committees is not divisible
(clause 5 of rule XVI), other types of resolutions containing several
names may be divided for voting (Mar. 19, 1975, p. 7344).

[[Page 252]]

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.''

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
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.

[[Page 253]]

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.
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

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.

[[Page 254]]

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. 15302).

sec. xxxvii--coexisting questions

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
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.

[[Page 255]]

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 XIV). 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 has abandoned the question ``Shall the bill be rejected?''
(IV, 3391), and the question is now taken in accordance with clause 8 of
rule XVI. 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.

Sec. 485. Equivalent questions in
general.

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

[[Page 256]]

The principles set forth in this paragraph are recognized by the
practice of the House; but Jefferson's use of the motion to strike as an
illustration is no longer justified, because the practice of the House
under clause 5(c) of rule XVI does not permit the negative of the motion
to strike 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.

In the House 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,
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 2 of rule XIX is in order pending a demand for or
after the ordering of the previous question, before the stage of
disagreement has been reached (V, 5575, 6172-6174), 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, p. 30887).

[[Page 257]]

to propose amendments, and to make it as perfect as they can,
before the question of disagreeing is put.

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

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.

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
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.

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

sec. xxxix--the question

Clause 6 of rule I provides more fully for putting the question.

[[Page 258]]

negative be put; because it is no full question till the
negative part be put. Scob., 23; 2 Hats., 73.

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

After the Chair has put the affirmative part of the question, any
Member who seeks to debate the matter or offer a motion may be
recognized (V, 5925; June 22, 2006, pp. 12298, 12299), and such
recognition is not subject to appeal (June 22, 2006, p. 12299). On one
occasion, the Chair refused to entertain a motion to lay on the table
after putting the affirmative part of the pending question where the
Chair had affirmed the admissibility of that motion before putting the
main question, and that motion nevertheless was not then offered (Sept.
20, 1979, p. 25512). Where not pertinent to the pending parliamentary
situation, a parliamentary inquiry regarding whether the Chair heard the
ayes on a prematurely-commenced vote by voice was not entertained (June
22, 2006, p. 12299).

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

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.

[[Page 259]]

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.

None of the restrictions are of effect in the modern practice of the
House. Clause 8 of rule XVI permits a bill to be read a third 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.

[[Page 260]]

In the House there is no practice justifying the presentation of an
abbreviated summary; and the procedure on third reading is definitely
prescribed by clause 8 of rule XVI.

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 it is in order to commit a bill after the engrossment and
third reading if the previous question is not ordered (V, 5562); and by
clause 2 of rule XIX 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.

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

[[Page 261]]

In the practice of the House, 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 bills are amended after the second reading (IV, 3392),
and before the engrossment and third reading (V, 5781; VII, 1051, 1052)
but not afterwards. Under modern practice of the House, readings are
governed by clause 8 of rule XVI and clause 5 of rule XVIII.

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.

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.

[[Page 262]]

In the House 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 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 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 6 of rule I.

This principle controls the practice of the House. 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 or
by special order of business. Title amendments are transacted following
passage (Sec. 512, infra).

sec. xli--division of the house

[[Page 263]]

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

This practice is provided for in different language by clause 6
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 264]]

<> A mistake in the report of the tellers may be rectified
after the report made. 2 Hats., 145, note.
* * * * *
In modern practice in the House of Commons, once the Chair determines
a sufficient request for a ``division,'' all Members leave the Chamber
and are recorded in the yes and no division lobbies. In the House of
Representatives, the provision in former 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 but not recorded by name. Clause 1(b) of rule XX provides for
taking a recorded vote by means of the electronic voting system when
supported 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.

In the House 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 XX provides the method for taking the yeas and nays in the
modern practice; but under clause 2 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 discretionarily orders the utilization of
other prescribed procedures.

[[Page 265]]

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.

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

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 also has 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.

Clause 1 of rule III 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 5 and 6 of rule XX.

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.

[[Page 266]]

This rule applies in the House 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.

Members no longer sit with their hats on (clause 5 of rule XVII) and
rise to speak; respectfully addressing their remarks to the Speaker
(clause 1 of rule XVII).

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.

The House provides also by rule (clause 1 of rule XX) that in the case
of a tie vote the question shall be lost.-

Sec. 509. Twothirds votes.

The House, however, requires a
two-thirds vote on a motion to suspend the rules (clause 1 of rule XV),
on a motion to dispense with the call of the Private Calendar on the
first Tuesday of each month (clause 5 of rule XV), and to consider a
special rule immediately (clause 6 of rule XIII), 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 joint resolutions proposing amendments to the Constitution.-

[[Page 267]]

Sec. 509a. Threefifths votes.

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(b) of rule XXI).

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.

Although 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, p. 37199).

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.

The House is governed in this respect by the practice under clause 2
of rule XX.

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.

[[Page 268]]

The House by clause 6 of rule XVI 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 269]]

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 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

The House provides for reconsideration by clause 3 of rule XIX.

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. * * *

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 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.

[[Page 270]]

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 (VIII, 3391; Mar. 17, 1976, p.
6776); 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.
17115).

In the House, with its rule for reconsideration, there is rarely an
attempt to bring forward a bill once rejected at the same session. One
instance

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

[[Page 271]]

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. 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

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.

The House 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

This principle is recognized in the practice of the House, 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, because 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
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).

[[Page 272]]

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.

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 273]]

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 endless. 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

The House 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.

If both Houses insist and neither ask a conference nor recede, the
bill fails (V, 6228). If 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).

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.

[[Page 274]]

amendment after the other House had returned it
concurred in with an amendment (V, 6226). However, this has been held
insufficient to pass the bill without further action by the House that
concurred with an amendment (VIII, 3177; June 26, 1984, p. 18733).

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, because 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

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 previously had 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).

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 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).

[[Page 275]]

cause 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.

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, be

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. * * *

[[Page 276]]

In the House 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 9 of rule XXII), 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 9 of rule XXII.

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.

<> 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
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 that
has passed both Houses (V, 6182).

[[Page 277]]

This is the rule of the House if the stage of disagreement has not
been reached (V, 6164, 6169-71; VIII, 3202), or if 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 XXII, 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 (clause 4
of rule XXII; 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).

Before 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
an order is entered for 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 amendment
before the stage of disagreement has been reached, by unanimous consent
or special order of business, 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 of business 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 Deschler-Brown, ch. 32, Sec. 5)).

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 XXII before the stage of disagreement has been reached, but 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.

[[Page 278]]

supra; see also the discussion of
adherence in Deschler-Brown, ch. 32, Sec. 12). A motion to adhere is the
least privileged motion.

Sec. 528b. Precedence of motions before the stage
of disagreement.

Should the House consider Senate amendments before the stage of
disagreement, the precedence of nonprivileged motions is as follows
(disregarding the privileged motion to disagree and send to conference
by direction of the committee): (1) to concur with amendment; (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.
Although the House may adhere, adherence is seldom utilized (because it
precludes a conference unless receded from) and is extremely rare on
first disagreement (see Sec. 522,

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, because 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 that is under debate--to table, to
postpone to a day certain, and to refer--remain available under clause 4
of rule XVI. A motion to table Senate amendments brings the bill to the
table (V, 5424, 6201-6203; 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 XIV, 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, 6201-6203) 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).

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, if
the House has concurred in a Senate amendment to a House bill with 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
because 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, if in possession of the
papers, only by unanimous consent, special order, or suspension of the
rules, and not by motion).

[[Page 279]]

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 because 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's 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).
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

[[Page 280]]

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, have the lowest privilege with respect to a
Senate amendment after the stage of disagreement has been reached. For
old examples in which the House postponed indefinitely consideration of
Senate amendments, see V, 6199, 6200 (in the latter case the Senate had
adhered). Clause 8(b)(3) of rule XXII makes preferential and separately
debatable a motion to insist on disagreement to a Senate amendment to a
general appropriation bill, if: (1) the Senate amendment has been
reported from conference in disagreement; (2) the original motion to
dispose of the Senate amendment proposes to change existing law; and (3)
the motion to insist is timely offered by the chair of a committee of
jurisdiction or a designee.

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 precedence thereof 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, because simply
reinserting the original House text without change (Deschler-Brown, ch.
31, Sec. 8.12). 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 Deschler-Brown, ch. 32, Sec. 7.27). 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 2 of rule XIX) may
only be offered if it constitutes, in effect, a motion that 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 Deschler-Brown, ch. 32, Sec. 7.5). However, 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

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 Deschler-Brown, ch. 32, Sec. 7. 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. A
conference report held to violate clause 9 of rule XXII was vitiated,
after which a privileged motion to recede and concur in a Senate
amendment with an amendment incorporating by reference the text of an
introduced House bill was offered (Nov. 14, 2002, p. 22409).

[[Page 281]]

ments 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 7(b) of rule XXII). 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). Although the manager of a conference report
is entitled to prior recognition to offer motions to dispose of
amendments in disagreement, the manager should not be entitled to offer
two motions, one preferential to the other, to be pending at the same
time. However, where the manager's first motion to insist on
disagreement has been superseded by the House's voting to recede from
disagreement, then the initial motion is no longer pending; and the
manager may be recognized to offer another motion to concur with an
amendment, which would be preferential to the remaining portion of
another Member's divided motion to concur (Deschler-Brown, ch 32,
Sec. 8.2). This is to be contrasted with the situation in which the bill
manager offers a motion to dispose of a Senate amendment that is
rejected by the House, in which case recognition to offer a subsequent
motion to dispose of the pending Senate amendment shifts to another
Member who led the opposition to the rejected motion (see Sec. 954,
infra).

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. Although 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 and each portion may be separately debatable (Oct.
5, 1978, 33698-701). 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 Deschler-Brown, ch. 32, Sec. 8.2, 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 amend

[[Page 282]]

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.

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

This principle is followed in the practice of the House (V, 6176-
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 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.

Although 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).

[[Page 283]]

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).

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

Sec. 533. Requests for conferences.

The parliamentary law
provides that the request for a conference must always be by the House
that is in possession 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 that an omission to do so has even raised a question (V,
6273). Yet it cannot 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. 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, in which
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, in which 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 of business (IV, 3242-3249).

[[Page 284]]

committee and all reporting committees of initial
referral and if the Speaker chooses to recognize for that purpose. Under
clause 2(a)(3) of rule XI, a committee may adopt a rule providing that
the chair be directed to offer a motion under clause 1 of rule XXII. A
motion under the latter clause may be repeated, if again authorized by
the relevant committees, 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, p.
33502).
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 XXII or motions under clause 1 of rule XXII, 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 primary

[[Page 285]]

Sec. 536. Managers of conferences.

Although 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 which acts by a majority (V, 6334). The Speaker appoints the managers
on the part of the House (clause 11 of rule I) 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 11 of rule I). Although 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). Although the appointment of
conferees, both as to their number and composition, is within the
discretion of the Chair (Speaker Garner, June 24, 1932, p. 13876;
Speaker Martin, July 8, 1947, p. 8469), and although a point of order
will not lie against the 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 the appointments to
members of the committee in charge of the bill (V, 6370). In one case,
in which the prerogatives of the House were involved, all of the
managers were appointed to represent the majority opinion (V, 6338). See
also Sec. 637, infra.

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).

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 11 of rule I). The absence
of a manager may cause a vacancy, which the Speaker fills by appointment
(V, 6372; VIII, 3228). If 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 at the termination of a session, unless it be the last session
(V, 6260-6262).

[[Page 286]]

tary way, and may
bring the sense of the two Houses together. * * *

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 parliamen

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 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. 541. Instruction of managers of a
conference.

In their practices as to the instruction of managers of a conference, the
House 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 in which 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 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 in which
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).

[[Page 287]]

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). A Member may
not be recognized for a unanimous-consent request to modify a pending
motion to instruct unless yielded to for that purpose by the proponent
(Mar. 29, 2006, p. 4377). 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 7(b) of rule XXII) unless the previous question is
ordered (VIII, 2675, 3240), which the proponent may not move until those
allotted time under clause 7(b) have yielded back (Oct. 3, 1989, p.
22842). 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); and the ruling out of such a motion
does not preclude the offering of a proper motion (VIII, 3235; Dec. 7,
2005, p. 27706); but one motion having been considered and disposed of,
further motions are not in order (VIII, 3236). The restriction on
further motions does not apply to a motion to instruct under clause 7(c)
of rule XXII (Aug. 22, 1935, pp. 14162-64).
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,

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 if two minority
members of the reporting committee seek recognition to offer a motion to
instruct conferees before 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).

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 288]]

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). However,
signatures with conditions are not counted toward a majority (Nov. 18,
1991, p. 32689) and in the modern practice are not printed in the
report. 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 the manager 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 on as part of the report (V, 6465-
6467; see also clause 9 of rule XXII). 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. 27662).

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 clause 7(a) of rule XXII 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 8 of rule XXII).

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). Where a Senate amendment to the title of a House bill was in
conference, but inadvertently omitted from the conference report, the
House adopted the report, and, by unanimous consent, insisted on its
disagreement to the putatively reported amendment and agreed to a
concurrent resolution that deemed the conference report to have
``resolved all disagreements'' (Oct. 10, 2002, p. 20333).

[[Page 289]]

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 (V, 6562; VIII, 3329; Aug. 23, 1957, p. 15816).
Although 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 8(a) of rule XXII 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).

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 if the amendment in issue strikes 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; Sec. 1088,
infra). If 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 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, p. 22332; Nov. 14, 2002, pp. 22408, 22409). 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 8(c) of rule XXII applies,
points of order must be made before debate begins on the report (Nov.
14, 2002, p. 22408).

A conference report held to violate clause 9 of rule XXII was
vitiated, after which a privileged motion to recede and concur in a
Senate amendment with an amendment incorporating by reference the text
of an introduced House bill was offered (Nov. 14, 2002, p. 22409).

[[Page 290]]

to a change in the Senate
rules until the 107th Congress. Public Law 106-553 provided that at the
beginning of the 107th Congress the Presiding Officer of the Senate
would apply precedents under Senate rule XXVIII as in effect at the end
of the 103d Congress. Public Law 110-81 amended it to provide a new
procedure (see, e.g., Nov. 7, 2007, p. _).
Under the former practice of the Senate, 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). However, on March 8, 1918,
the Senate adopted a ``scope'' rule providing for a point of order
against conferees inserting matter not committed to them or changing the
text agreed to by both Houses. This rule of the Senate was strictly
construed (VIII, 3273, 3275) until the 104th Congress when the Senate
overturned on appeal a ruling of its presiding officer that the
inclusion of a special labor-law provision in a conference report
exceeded the scope of conference (Oct. 3, 1996, pp. 27147-51). The Chair
interpreted that action as tantamount

Sec. 548. Meeting and action of managers.

The managers of a
conference may not report before the other House is notified of their
appointment and a meeting is 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 12 of rule XXII now provides for at least one
open conference meeting except if the House determines by record vote
that all or part of the meeting may 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). For a discussion of open conference
meetings, see Sec. 1093, infra. 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). Clause 12(a)(3) of rule XXII
provides additional statements on the meetings, discussions, and
signatures of House managers. Clause 13 of rule XXII provides a point of
order against consideration of a conference report that differs in a
non-clerical manner from the version placed before the House managers
for signature.

[[Page 291]]

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, p. 40481); 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
not only a conference report but also sundry motions to dispose of
amendments reported from conference in disagreement (June 18, 1992, p.
15453). Although 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 in which the Senate had adopted a report recommending
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,

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). A motion to recommit a conference report may not
instruct House managers to exceed the scope of conference (Sec. 1088,
infra); and, under clause 7(d) of rule XXII, a motion to instruct may
not contain argument (Sec. 1079, infra).

[[Page 292]]

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 clause 10 of rule XXII because of the inclusion of nongermane matter,
the pending question is as specified in that clause 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. 1089, 1090, infra).

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 293]]

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,
299, 319, 322, 355; of adhering, 269, 270, 283, 300; and even of a
second or final adherence. 3 Hats., 270. * * *

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), because 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 in both Houses,
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, p. 18884). 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 294]]

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.

Where a conference breaks up without reaching any
agreement the managers for the House that requested 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 papers
were taken back to the Senate, which was the body agreeing to the
conference, the Senate after consideration sent them to the House,
because it seemed proper for the asking House to take the first action
(V, 6573).

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 instructs its managers whenever it sees fit, without regard
to whether or not the preceding conference has been free or instructed.

[[Page 295]]

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 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,

The House 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 2 of rule II was added in the 97th
Congress, and amended in the 111th Congress, to authorize the Clerk to
receive messages at any time that the House is not in session (H. Res.
5, Jan. 5, 1981, p. 98) or in recess (H. Res. 5, Jan. 6, 2009, p. _).

In the House messages are received during debate, the Member having
the floor yielding on request of the Speaker.

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 errors difficult to be corrected. So
arranged June 15, 1798.

[[Page 296]]

to approve the Journal (Sept. 13, 1965, p. 23607), and
before the organization of the House (V, 6647-6649). But the Speaker
exercises discretion about interrupting the pending business (V, 6602).

In the House messages are not received while a question is being put
or during a vote by division. 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), during debate on a
motion

Sec. 563. Informal rising of Committee of the Whole to
receive a message.

In the House, 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 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 title, after the messenger, with an inclination, has
addressed the Speaker (V, 6591).

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,
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
Secretary was sent to the other House to correct his mistake, the
correction was received, and the two amendments acted on de novo.

[[Page 297]]

the end that the Senate effect a specified
(substantive) change in its text (May 7, 1998, p. 8386) or to the end
that the bill be recommitted to committee (July 15, 2004, p. 15890); (2)
the House by unanimous consent directed its Clerk to correct an error in
a message to the Senate (V, 6607); (3) the House, upon receipt of a
request by the Senate to return a bill during consideration of the
conference report accompanying that bill, laid the conference report
aside and agreed to the Senate request (V, 6609); (4) the House
requested the return of a message indicating passage of a Senate joint
resolution after learning that both Houses had previously passed an
identical House Joint Resolution, so that it could indefinitely postpone
action thereon (Nov. 16, 1989, p. 29587); (5) the Speaker laid before
the House as privileged a message from the Senate requesting the return
of a message where it had erroneously appointed conferees to a bill
after the papers had been messaged to the House, so that the message
could be changed to reflect the appointment of Senate conferees (May 20,
1996, p. 11809); (6) the Speaker laid before the House as privileged a
message from the Senate requesting the return of a Senate bill that
included provisions intruding on the constitutional prerogative of the
House to originate revenue measures (Oct. 19, 1999, p. 25901; Sept. 28,
2004, p. 19724; Sept. 30, 2004, p. 20045); (7) where the engrossment
failed to depict certain action of the House, the House considered and
agreed to a privileged resolution requesting the Senate to return the
engrossment of a House bill (July 15, 2004, p. 15890) and a House-passed
Senate bill (Oct. 8, 2004, p. 22630); (8) the Speaker laid before the
House as privileged a message from the Senate requesting the return of
Senate amendments to a House bill where the engrossment failed to
properly depict the action of the Senate (July 14, 2005, p. 15932).

A request of one House for the return of a bill messaged to the other,
or the request of one House to correct an error in its message to the
other, may qualify as privileged in the House or may be disposed of by
unanimous consent (III, 2613; V, 6605; Deschler, ch. 32, Sec. 2; Oct. 1,
1982, p. 27172; May 20, 1996, p. 11809). For example: (1) the House by
unanimous consent agreed to a request from the Senate for the return of
a Senate bill, to

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.

[[Page 298]]

In the House the message goes to the Speaker's table for disposition
under clause 2 of rule XIV. The Speaker does not acquaint the House,
because it has already heard the message.

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. * * *

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 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 asked of the Senate a question by way of conference,
but this appears to be the only instance (V, 6256).

[[Page 299]]

communication between the Speakers or Members of the two Houses.

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

It does not appear that either House of Congress has by message
reminded the other of a neglected bill.

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
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.

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.

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 the Speaker has the discretion, which is rarely
exercised, to suspend a roll call in order to receive a message from the
President.

sec. xlviii--assent

[[Page 300]]

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.

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

In the House 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),
but a resolution seeking such a determination may be privileged (Oct. 8,
1991, p. 25761).

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 301]]

in the National Archives
with the original (P.L. 100-199, Dec. 21, 1987; P.L. 100-454, Sept. 29,
1988). Where an enrolled bill enacts another numbered bill by reference,
that same law may require the Archivist to include as an appendix to
that law the text of the referenced bill (see, e.g., P.L. 106-554). 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. 574. Practice of the two Houses of Congress
as to enrollment of bills.

Formerly the enrollment in the House 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
before 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 before the last six days, a joint resolution waiving the
law to permit hand enrollments is required and may be considered in the
House by unanimous consent (Dec. 10, 1985, p. 35741) or by special order
of business (H. Res. 580, Oct. 8, 1998, p. 24735). 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

Sec. 575. Signing of enrolled bills for
presentation to the President.

* * * It is then put into the hands of the Clerk of
the House 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).
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; clause 8 of rule I), signs enrolled bills (see clause 4
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).

[[Page 302]]

(IV, 3431). In the 107th Congress the responsibility in
the House for enrolled bills was transferred from the Committee on House
Administration to the Clerk (sec. 2(b), H. Res. 5, Jan. 3, 2001, p. 25).
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). 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).
Enrollments presented at the close of the 97th Congress were signed by
the President after the convening of the 98th Congress.

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 chair of the committee in each
House that had responsibility for the enrollment of bills also had the
responsibility of presenting the bills from that House, and submitted
from his committee daily a report of the bills presented for entry in
the Journal

* * * * *
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.

[[Page 303]]

In the House 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.

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 world in the form in which they are made. 2
Hats., 85.

Sec. 581. Entry of votes in journal of the House of Commons.

In the practice of the House 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.

[[Page 304]]

point 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.

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
ap

The Journal of the House is the official record of the proceedings of
the House (IV, 2727), and certified copies are admitted as 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).

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.
* * * * *

[[Page 305]]

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.

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

The modern practice of the House adheres to this principle
(Sec. Sec. 912, 913, 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 (consistent with article I, section 5, clause 4 of the
Constitution, not in excess of three days).

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.

[[Page 306]]

An adjournment during pleasure is effected in the House 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 (IV, 664; V, 6665, 6666); 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 said certain day as a legislative day (IV,
3192). And an adjournment at a time before 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). For the
Speaker's authority to declare an emergency recess when notified of an
imminent threat to the safety of the House, see Sec. 639, infra.

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

[[Page 307]]

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.

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 constituting them commissioners for
the particular purpose.

The House may empower a committee to sit during a recess that is
within the constitutional term of the House (IV, 4541-4543), but not
thereafter (IV, 4545). A commission created by law may operate beyond
the term of the Congress in which it was created (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. Under clause 1(b)(4) of rule XI, all
committees are authorized to file investigative reports and annual
activities reports following adjournment sine die.

[[Page 308]]

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. 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

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, p. 25145.) 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 an adjournment sine die. See Sec. 1106, 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). Before 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).

[[Page 309]]

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 __.''

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

In the modern practice the resolving clause of the concurrent
resolution is in form different from that given by Jefferson. For a
history and chronology of adjournment resolutions, see Sec. 84, supra.

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.

For a discussion of continuance of impeachments, see Sec. 620, infra.

* * * * *
sec. lii--treaties

[[Page 310]]

stance, 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.

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 in

[[Page 311]]

participation to the House. 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.

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 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

Sec. 595. General action of the House as to
treaties.

The participation of the House 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).

[[Page 312]]

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. 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

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).

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 accordingly the
process adopted in the case of France in 1798.

Notice to a foreign government of the abrogation of a treaty is
authorized by a joint resolution (V, 6270). A resolution alleging an
unconstitutional abrogation of a treaty by the President, and calling on
the President to seek the approval of Congress before such abrogation,
does not constitute a question of the privileges of the House under rule
IX (June 6, 2002, pp. 9492-98 (sustained by tabling of appeal)).

[[Page 313]]

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.

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.

The mode of voting on questions of ratification is by nominal call.

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 314]]

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. 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.

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 order for his appearance. Sachev.
Trial, 325; 2 Wood., 602, 605; Lords' Journ., 3 June, 1701; 1 Wms., 616;
6 Grey, 324.

[[Page 315]]

mittee 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 because 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; III, 2510 (wherein the Committee on the
Judiciary, to which the matter had been referred by privileged
resolution, reported that the Vice President could not be impeached for
acts or omissions committed before his term of office)). On the other
hand, in 1826 the Vice President's request that the House investigate
charges against his prior official conduct as Secretary of War was
referred, on motion, to a select committee (III, 1736). On September 9,
1998, an independent counsel transmitted to the House under 28 U.S.C.
595(c) a communication containing evidence of alleged impeachable
offenses by the President. The House adopted a privileged resolution
reported by the Committee on Rules referring the communication to the
Committee on the Judiciary, restricting Members' access to the
communication, and restricting access to committee meetings and hearings
on the communication (H. Res. 525, Sept. 11, 1998, p. 20020). Later, the
House adopted a privileged resolution reported by the Committee on the
Judiciary authorizing an impeachment inquiry by that committee (H. Res.
581, Oct. 8, 1998, p. 24679). The authority to appoint an independent
counsel under 28 U.S.C. 573 expired on June 30, 1999.

Sec. 603. Inception of impeachment proceedings in the
House.

In the House various events have been credited with setting an
impeachment in motion: 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); charges preferred by a memorial, which is usually
referred to a committee for examination (III, 2364, 2491, 2494, 2496,
2499, 2515; VI, 543); a resolution introduced by a Member and referred
to a committee (Apr. 15, 1970, p. 11941; Oct. 23, 1973, p. 34873); a
message from the President (III, 2294, 2319; VI, 498); charges
transmitted from the legislature of a State (III, 2469) or territory
(III, 2487) or from a grand jury (III, 2488); or facts developed and
reported by an investigating com

[[Page 316]]

question
of privilege (Deschler, ch. 14, Sec. 1.3). Under 28 U.S.C. 596(a) an
independent counsel appointed to investigate the President may be
impeached; and a resolution impeaching such independent counsel
constitutes a question of the privileges of the House under rule IX
(Sept. 23, 1998, p. 21560).

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, 2051, 2398; VI,
468, 469; July 22, 1986, p. 17294; Aug. 3, 1988, p. 20206; May 10, 1989,
p. 8814; Sept. 23, 1998, pp. 21560-62; Nov. 6, 2007, p. 29817; June 10,
2008, p. _; July 15, 2008, p. _; see Deschler, ch. 14, Sec. 8). 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; July 15, 2008, _ (see June 10,
2008, _)), previous action of the House not affecting it (III, 2053). As
such, a report of the Committee on the Judiciary accompanying an
impeachment resolution is filed from the floor as privileged (Dec. 17,
1998, p. 27819), and is called up as privileged (Dec. 18, 1998, p.
27828). The addition of new articles of impeachment offered by the
managers but not reported by committee are also privileged (III, 2401),
as is a proposition to refer to committee the papers and testimony in an
impeachment of the preceding Congress (V, 7261). To a privileged
resolution of impeachment, an amendment proposing instead censure, which
is not privileged, was held not germane (Dec. 19, 1998, p. 28107). On
several occasions the Committee on the Judiciary, having been referred a
question of impeachment, reported a recommendation that impeachment was
not warranted and, thereafter, called up the report as a

Propositions relating to an impeachment already made also are
privileged (III, 2400, 2402, 2410; July 22, 1986, p. 17294; Dec. 2,
1987, p. 33720; Aug. 3, 1988, p. 20206), such as resolutions providing
for selection of managers of an impeachment (VI, 517; Dec. 19, 1998, p.
28112), 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; Jan. 6, 1999, p.
14), empowering managers to hire special legal and clerical personnel
and providing for their pay, and to carry out other responsibilities
(Jan. 3, 1989, p. 84; Dec. 19, 1998, p. 28112; Jan. 6, 1999, p. 240),
and replacing an excused manager (Feb. 7, 1989, p. 1726); but a
resolution simply proposing an investigation, even though impeachment
may be a possible consequence, is not privileged (III, 2050, 2546; VI,
463).

Where a resolution of investigation positively proposes impeachment or
suggests that end, it has been admitted as of privilege (III, 2051,
2052, 2401, 2402), such as a resolution reported by the Committee on the
Judiciary authorizing an impeachment inquiry by that committee and
investing the committee with special investigative authorities to
facilitate the inquiry (III, 2029; VI, 498, 528, 549; Deschler, ch. 14,
Sec. Sec. 5.8, 6.2; H. Res. 581, Oct. 8, 1998, p. 24679). A committee to
which has been referred privileged resolutions for the impeachment of an
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(k)(1) of rule X'') (VI, 549; Feb. 6, 1974, p. 2349). Similarly,
a resolution authorizing depositions by committee counsel in an
impeachment inquiry is privileged under rule IX as incidental to
impeachment (Speaker Wright, Oct. 3, 1988, p. 27781).

[[Page 317]]

ward impeachment
have been referred to the Committee on Rules (Oct. 23, 1973, p. 34873).
Upon receipt of a communication from an independent counsel transmitting
to the House under 28 U.S.C. 595(c) a communication containing evidence
of alleged impeachable offenses by the President, the House adopted a
resolution reported by the Committee on Rules referring the
communication to the Committee on the Judiciary to conduct a review (H.
Res. 525, 106th Cong., Sept. 11, 1998, p. 20020). Later, the House
adopted a privileged resolution reported by the Committee on the
Judiciary authorizing an impeachment inquiry by that committee (H. Res.
581, Oct. 8, 1998, pp. 24679, 24735).

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) or has
referred to committee an impeachment resolution raised as a question of
privilege (Nov. 6, 2007, p. 29820; June 11, 2008, p. _). Under the later
practice, resolutions introduced through the hopper that directly call
for the impeachment of an officer have been referred to the Committee on
the Judiciary, but resolutions calling for an investigation by that
committee or by a select committee with a view to

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; H. Rept.
105-830, Dec. 16, 1998). 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 chair 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 chair and members of the committee for their efforts (Aug. 20, 1974,
p. 29361).

Sec. 606a. Procedure of House in
considering.

During the pendency of an impeachment resolution, remarks in debate
may include references to personal misconduct on the part of the
President but may not include language generally abusive toward the
President and may not include comparisons to the personal conduct of
sitting Members of the House or Senate (Dec. 18, 1998, p. 27829). A
resolution setting forth separate articles of impeachment may be divided
among the articles (e.g., Dec. 19, 1998, p. 28110; Mar. 11, 2010, p. _).

[[Page 318]]

(July 22, 1986, p. 17306) or 13 (Dec. 19, 1998,
p. 28112). These Members in two notable cases represented the majority
party alone (e.g., Dec. 19, 1998, p. 28112), but ordinarily include
representation of the minority party (III, 2445, 2472, 2505). Under
early practice the House elected managers by ballot (III, 2300, 2323,
2345, 2368, 2417). In two instances the Speaker appointed the managers
on behalf of the House pursuant to an order of the House (III, 2388,
2475). Since 1912 the House has adopted a resolution appointing
managers. 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). These privileged incidental resolutions may be
merged into a single indivisible privileged resolution (H. Res. 614,
Dec. 19, 1998, p. 28112; H. Res. 10, Jan. 6, 1999, p. 240).

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, pp. 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
(III, 2445) or nine

Sec. 608. Impeachment process in the
Senate.

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.

Sec. 608a. Senate impeachment proceedings against
President Clinton.

Under an order of the Senate, the Secretary of the Senate
informed the House and the Chief Justice that it was ready to receive
the House managers for the purpose of exhibiting articles of impeachment
against President Clinton (Jan. 6, 1999, p. 37). At the appointed hour
the House managers were announced and escorted into the Senate chamber
by the Senate Sergeant-at-Arms (Jan. 7, 1999, p. 272). The managers
presented the articles of impeachment by reading two resolutions as
follows: (1) the appointment of managers (H. Res. 10, Jan. 7, 1999, p.
272); and (2) the two articles of impeachment (H. Res. 611, Jan. 7,
1999, p. 273). Thereupon, the managers requested the Senate take order
for trial (Jan. 7, 1999, p. 273).

[[Page 319]]

to or produced by the House
Judiciary Committee (the resolution further directed that the record be
admitted into evidence, printed, and made available to Senators); (3)
the filing of a trial brief by the House; (4) the filing of any motions
permitted under the rules of impeachment (except for motions to subpoena
witnesses or to present evidence not in the record); (5) the filing of
responses to any such motions; (6) the filing of a trial brief by the
President; (7) the filing of a rebuttal brief by the House; and (8)
arguments on such motions. The resolution then directed the Senate to
dispose of any such motions and established a further timetable for (1)
the House to make its presentation in support of the articles of
impeachment (such argument to be confined to the record); (2) the
President to make his presentation in opposition to the articles of
impeachment; and (3) the Senators to question the parties. The
resolution directed the Senate, upon completion of that phase of the
proceedings, to dispose of a motion to dismiss, and if defeated, to
dispose of a motion to subpoena witnesses or to present any evidence not
in the record. The resolution further provided that, if the motion to
call witnesses were adopted, the witnesses would first be deposed and
then the Senate would decide which witnesses should testify. It further
provided that if the Senate failed to dismiss the case, the parties
would proceed to present evidence. Finally, the resolution directed the
Senate to vote on each article of impeachment at the conclusion of the
deliberations. The evidentiary record (summons, answer, replies, and
trial briefs) was printed in the Record by unanimous consent (Jan. 14,
1999, p. 357). Pursuant to the previous order of the Senate (S. Res. 16,
Jan. 8, 1999, p. 349), the House managers were recognized for 24 hours
to present their case in support of conviction and removal (Jan. 14,
1999, p. 521); counsel for the President was then recognized for 24
hours to present the President's defense (Jan. 19, 1999, p. 1055); and
Senators submitted questions in writing of either the House managers or
the President's counsel (which were read by the Chief Justice,
alternating between parties) for a period not to exceed 16 hours (Jan.
22, 1999, p. 1244). The Chief Justice ruled that a House manager could
not object to a question although he could object to an answer (Jan. 22,
1999, p. 1250; Jan. 23, 1999, p. 1320). The Senate adopted a motion to
consider a motion to dismiss in executive session (Jan. 25, 1999, p.
1339), and the motion to dismiss was defeated (Jan. 27, 1999, p. 1397).
The Senate adopted a motion to consider a motion of the House managers
to subpoena witnesses in executive session (Jan. 26, 1999, p. 1370). The
Senate adopted that motion, which: (1) authorized the issuance of
subpoenas for depositions of three witnesses; (2) admitted miscellaneous
documents into the trial record; and (3) petitioned the Senate to
request the appearance of the President at a deposition (Jan. 26, 1999,
p. 1370).
The Senate adopted a resolution governing the initial impeachment
proceedings of President Clinton (S. Res. 16, Jan. 8, 1999, p. 349).
Later it adopted a second resolution governing the remaining proceedings
(S. Res. 30, Jan. 28, 1999, p. 1843). The first resolution issued the
summons in the usual form. It also provided a timetable for (1) the
filing of an answer by the President; (2) the filing of a reply by the
House, together with the record consisting of publicly available
materials that had been submitted

[[Page 320]]

depositions into evidence; (2) consideration of motions for
additional discovery (if made by the two Leaders jointly); (3)
disposition of motions governing the presentation of evidence or
witnesses before the Senate and motions by the President's counsel
(specifically precluding a motion to reopen the record and specifically
permitting a motion to allow final deliberations in open session); (4)
establishment of a timetable to vote on the articles of impeachment; and
(5) authorization to issue subpoenas to take certain depositions and to
establish procedures for conducting depositions (S. Res. 30, Jan. 28,
1999, p. 1453). The Senate adopted two parts of a divided motion as
follows: (1) permitting the House managers to admit transcripts and
videotapes of oral depositions into evidence (Feb. 4, 1999, p. 1817);
and (2) permitting the parties to present before the Senate for an
equally divided specified period of time portions of videotapes or oral
depositions admitted into evidence, having first rejected a preemptive
motion to restrict the House managers' presentation of evidence to
written transcripts (Feb. 4, 1999, p. 1817). The Senate rejected the
portion of the divided motion that would have authorized a subpoena for
the appearance of a named witness (Feb. 4, 1999, p. 1827). During debate
on the motion, the Senate, by unanimous consent, permitted the House
managers and counsel for the President to make references to videotaped
oral depositions (Feb. 4, 1999, p. 1817). The Senate rejected two
additional motions as follows: (1) a motion to proceed directly to
closing arguments and an immediate vote on the articles of impeachment
(Feb. 4, 1999, p. 1827); and (2) a motion that the House managers
provide written notice to counsel for the President by a time certain of
those portions of videotaped deposition testimony they planned to use
during their evidentiary presentation or during closing arguments (Feb.
4, 1999, p. 1827). By unanimous consent the Senate printed certain
deposition transcripts in the Record and transmitted to the House
managers and the counsel for the President deposition transcripts and
videotapes (Feb. 4, 1999, p. 1827). The Chief Justice held inadmissible
a portion of a videotaped deposition not entered as evidence into the
Senate record (other portions of which were admitted under an order of
the Senate), and a unanimous-consent request nevertheless to admit that
portion of a deposition was objected to (Feb. 6, 1999, p. 1954). After
closing arguments, the Senate adopted a motion to consider the articles
of impeachment in closed session (Feb. 9, 1999, p. 2055). After closed
deliberations the Senate Clerk read the articles of impeachment in open
session, and each Senator voted ``guilty'' or ``not guilty'' on each
article (Feb. 12, 1999, p. 2375). By votes of 45-55 and 50-50
respectively, the Senate adjudged President Clinton not guilty on each
article of impeachment (Feb. 12, 1999, p. 2375). The Senate communicated
to the House and the Secretary of State the judgment of the Senate (Feb.
12, 1999, p. 2375).
The Senate subsequently adopted a resolution governing the remaining
impeachment proceedings as follows: (1) establishment of a timetable for
conducting and reviewing depositions, resolving any objections made
during the depositions, and considering motions to admit any portions of
the

[[Page 321]]

See S. Doc. 93-102, ``Procedure and Guidelines for Impeachment Trials
in the United States Senate,'' for precedents relating to the conduct of
Senate impeachments.

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.

Having delivered the impeachment, the committee returns to the House
and reports verbally (III, 2413, 2446; VI, 501). 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; Jan. 7, 1999, p. 272). 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; Jan. 6, 1999, p. 240). 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 that 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).

[[Page 322]]

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). For a discussion
of the presentation of the House managers in support of the impeachment
of President Clinton, and related matters, see Sec. 608a, supra.

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 special 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.

[[Page 323]]

of his son was admitted to be heard and present
evidence in support of the petition, but not to make argument (III,
2333). For a discussion of answers, arguments, and presentations of the
respondent in the Clinton impeachment proceedings, see Sec. 608a, supra.

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 and the Senate are concerned. The
accused may appear in person or by attorney (III, 2127, 2349, 2424), and
take the stand (VI, 511, 524; Apr. 11, 1936, pp. 5370-86; Oct. 7, 1986,
p. 29149), or may not appear at all (III, 2307, 2333, 2393). In case the
accused does not appear the House does not ask that the accused be
compelled to appear (III, 2308), but the trial proceeds as on a plea of
``not guilty.'' The writ of summons to the accused recites the articles
and notifies the accused to appear at a fixed time and place and file an
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

The chair of the committee impeaches at the bar of the Senate by oral
accusation (III, 2413, 2446, 2473), and the managers for the House
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; S. Res. 16, Jan. 8, 1999, p. 349); 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. 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).

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.

[[Page 324]]

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).
In the Senate proceedings of 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). In the Senate proceedings
on the impeachment of President Clinton, the answer of the President
also took up the articles one by one, denying some of the charges and
admitting others but denying that they set forth impeachable offenses
(Jan. 14, 1999, pp. 359-361). 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 Swayne 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

For a chronology of arguments and presentations of the respondent in
the Clinton impeachment proceedings, see Sec. 608a, supra.

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.

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 also has 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 (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) before voting in open session to dispose of those
motions (Oct. 7, 8, 1986, pp. 29151, 29412).

For a chronology in the Senate of disposition of motions permitted
under Senate impeachment rules, see Sec. 608a, supra.

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.

[[Page 325]]

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, 506 U.S. 224 (1993), the Supreme Court refused to
declare unconstitutional the appointment of such a committee to take
evidence and testimony.
In trials before the Senate witnesses have always been examined in
open Senate, although examination by a committee has been suggested
(III,

For a chronology of motions to subpoena witnesses during the Senate
impeachment proceedings against President Clinton, see Sec. 608a, supra.

[[Page 326]]

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 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

No jury is possible as part of an impeachment trial under the
Constitution (III, 2313). In 1868, after mature consideration, the
Senate overruled the old view of its functions (III, 2057), and decided
that it sat for impeachment trials as the Senate and not as a court
(III, 2057), and eliminated from its rules all mention of itself as a
``high court of impeachment'' (III, 2079, 2082). However, the modern
view of the Senate as a court was evident during the impeachment trial
of President Clinton. There the Senate convened as a ``Court of
Impeachment'' (see, e.g., Jan. 7, 1999, p. 272). In response to an
objection raised by a Senator, the Chief Justice held that the Senate
was not sitting as a ``jury'' but was sitting as a ``court'' during the
impeachment trial of President Clinton. As such, the House managers were
directed to refrain from referring to the Senators as ``jurors'' (Jan.
15, 1999, p. 580).

[[Page 327]]

and the Chief Justice in
turn administered the oath to the Senators (Jan. 7, 1999, p. 272).

Sec. 615a. The presiding officer.

An anxiety lest the Chief
Justice might have a vote in the approaching trial of the President
seems to have prompted this earlier action (III, 2057). There was
examination of the question of the Chief Justice's power to vote (III,
2098); but the Senate declined to declare his incapacity to vote, and he
did in fact give a casting vote on incidental questions (III, 2067).
Under the earlier practice, the Senate declined to require that the
Chief Justice be sworn when about to preside (III, 2080); but the Chief
Justice had the oath administered by an associate justice (III, 2422).
The President pro tempore of the Senate, pursuant to an earlier order of
the Senate, appointed a committee to escort the Chief Justice into the
Senate chamber to preside over the impeachment trial of President
Clinton, administered the oath to him,

In impeachments for officers other than the President of the United
States the presiding officer of the Senate presides, whether being Vice
President, the regular President pro tempore (III, 2309, footnote, 2337,
2394) or a special President pro tempore chosen to preside at the trial
only (III, 2089, 2477).

Sec. 615b. Oath and quorum.

Senators elected after the
beginning of an impeachment trial are sworn as in the case of other
Senators (III, 2375). The quorum of the Senate sitting for an
impeachment trial is a quorum of the Senate itself, and not merely a
quorum of the Senators sworn for the trial (III, 2063). The vote
required for conviction is two-thirds of those Senators present and
voting (Oct. 20, 1989, p. 25335). In 1868, when certain States were
without representation, the Senate declined to question its competency
to try an impeachment case (III, 2060). The President pro tempore of the
Senate administered the oath to the Chief Justice presiding over the
impeachment trial of President Clinton, and the Chief Justice in turn
administered the oath to the Senators (Jan. 7, 1999, p. 272).

Sec. 616. Attendance of the Commons.

Presence of Commons.
The Commons are to be present at the examination of witnesses. Seld.
Jud., 124. Indeed, 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. * *
*.

[[Page 328]]

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, 2383, 2388, 2440). Although it has frequently attended
in Committee of the Whole, it may attend as a House (III, 2338).

Sec. 617. Attendance of the House of
Representatives.

The House 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

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.

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 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 President Johnson 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). For a discussion of the vote
of the Senate on each article of impeachment of President Clinton, see
Sec. 608a, supra.

[[Page 329]]

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 judgments
(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.

[[Page 330]]

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 (such as
disqualification) 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 disqualification (III, 2339, 2397), but no
vote is required by the Senate on judgment of removal from office
following conviction, because 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 where disqualification is not contemplated
(Oct. 9, 1986, p. 29873). A resolution impeaching the President may
provide only for removal from office (H. Res. 1333, 93d Cong., Aug. 20,
1974, p. 29361) or for both removal and disqualification from holding
any future office (H. Res. 611, 105th Cong., Dec. 19, 1998, p. 27828).

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, see also Sec. 592, supra). The
following impeachment proceedings extended from one Congress to the
next: (1) the impeachment of Judge Pickering was presented in the Senate
on the last day of the Seventh Congress (III, 2320), and the Senate
conducted the trial in the Eighth Congress (III, 2321); (2) the
impeachment of Judge Louderback was presented in the Senate on the last
day of the 72d Congress (VI, 515), and the Senate conducted the trial in
the 73d Congress (VI, 516); (3) the impeachment of Judge Hastings was
presented in the Senate during the second session of the 100th Congress
(Aug. 3, 1988, p. 20223) and the trial in the Senate continued into the
101st Congress (Jan. 3, 1989, p. 84); (4) the impeachment of President
Clinton was presented to the Senate after the Senate had adjourned sine
die for the 105th Congress (Jan. 6, 1999, p. 14), and the Senate
conducted the trial in the 106th Congress (Jan. 7, 1999, p. 272); (5)
the impeachment inquiry of Judge Porteous was authorized in the 110th
Congress (Sept. 17, 2008) and continued in the next Congress (Jan. 13,
2009). Although impeachment proceedings may continue from one Congress
to the next, the authority of the managers appointed by the House
expires at the end of a Congress; and the managers must be reappointed
when a new Congress convenes (Jan. 6, 1999, p. 15).