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LEGISLATIVE RULES.

479

and by the practice of the British House of Lords. Gouverneur Morris suggested the provision that, when sitting as a court, the Senators should be on oath or affirmation, but the clause as a whole was the work of the Committee of Eleven." That no person should be convicted without the concurrence of two-thirds of the members present may have been suggested from the constitution of New York, in which Morris, one of its authors, found his suggestion.2 The clause declaring the extent of judgment in cases of impeachment came from the Committee on Detail, but its language was taken almost verbally from the constitutions of Massachusetts and New Hampshire. With this committee also originated the provision affecting the times, places and manner of holding elections for Senators and Representatives, and the power of Congress to regulate them by law.5

16. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

2 Gouverneur Morris removed from New York to Pennsylvania for a time. For his services in the convention which framed the New York constitution of 1777, see the Journal of the New York Provincial Congress, 1775-1777, Vol. I, and the Report of the Debates and Proceedings of the Convention of the State of New York, 1821 (L. H. Clarke). Appendix.

3 7. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States: but the Party convicted shall, nevertheless, be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

4 Massachusetts Constitution, 1780, Part I, Chapter I, Section 2, Article VIII; New Hampshire, 1784.

5 Section 4. 1. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

480

LEGISLATIVE RULES.

Annual sessions of the legislature had prevailed in the country since the organization of its first legislative body in Virginia. Franklin in 1754 and Galloway, twenty years later, had suggested a grand council, whose session should be annual. The Congress of the Confederation assembled on the first Monday in November, in every year and the State constitutions usually specified the time of the annual meeting of the legislature. That Congress should meet on the first Monday in December, unless by law it appointed a different day, was determined by the Committee of Detail. The time of meeting coincided with that of the legislature of South Carolina by its first constitution.3

That each House should be the judge of the elections, returns and qualifications of its members was suggested by Pinckney;4 and that the majority should constitute a quorum was taken from the constitution of Vermont by the Committee of Detail.5-6 That a smaller number

1 Article IV.

2 2. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

3 South Carolina, 1776, Article XI, First Monday in December; New Jersey, 1776, Article III, second Tuesday in October; Maryland, 1776, Article XXIII, first Monday in November; Pennsylvania, 1776, Section 9, fourth Monday in October; Delaware, 1776, Article II, annual; North Carolina, 1776, Articles II, III, annual; New York, 1777, Article II, annual; South Carolina, 1778, Article XIII, first Monday in January; Vermont, 1777, Article VIII; 1786, Article IX, second Tuesday in October; Georgia, 1777, Article II, first Tuesday in January; Massachusetts, 1780, Part 1, Chapter I, Section 1, Article I, last Wednesday in May; New Hampshire, 1784, first Wednesday in June.

4 August 20, Elliot, V, 445.

6 The Vermont Constitution of 1777, Article IX, deficed a quorum of the House as two-thirds of all its members, but the Constitution of 1786 made the majority a quorum.

6 Section 5. 1. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business: but

LEGISLATIVE RULES.

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may adjourn from day to day and compel the attendance of absent members emanated from Randolph and Madison. The provision as a whole found a precedent in the constitutions of seven States. That each House should determine the rules of its proceedings, punish its members for disorderly behavior and, if need be, expel a member, had long been the practice of the British Parliament, and was particularly provided for in four of the State constitutions. That the expulsion of a member should be with the concurrence of two-thirds was proposed by Madison, but the provision as a whole came from the Committee of Detail.5

Though legislative bodies in modern times have usually kept a journal, the requirement was not common to the early State constitutions. Delaware and New York alone made the provision explicit for both Houses, and three other States made the requirement of the council. The Articles of Confederation had introduced an innovation in legislative proceedings by requiring the periodical puba smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, etc.

1 August 10, Elliot, V, 406.

2 New Jersey, 1776, Article V; Delaware, 1776, Article V; Maryland, 1776, Article IX; North Carolina, 1776, Article X; New York, 1777, Article IX; Massachusetts, 1780, Part I, Chapter I, Section 2, Article IV (Senate), Section 3, Article X (House); New Hampshire, 1784.

3 Delaware, 1776, Article V; Maryland, 1776, Articles X, XXI, XXIV; Massachusetts, 1780, Part I, Chapter 2, Section 3, Articles X and XI; New Hampshire, 1784.

4 August 10, Elliot, V, 407.

52. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.

6 Delaware, 1776, Article 7; New York, 1777, Article XV.

7 North Carolina, 1776, Article XIV; Pennsylvania, 1776, Section 20; Vermont, 1777, Article XVIII, 1786, Article XI.

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lication of the journal, excepting parts which required secrecy. Publication was not required by any of the State constitutions. Vermont provided that the entry of the vote on the journal should be made if required by one-third of the members present,” and the Articles of Confederation, that the yeas and nays must be entered at the request of any delegate. The old Congress kept a secret journal, now long since published. The whole period of the American Revolution was one of publicity of legislative proceedings, and there was little that was said or done in the State legislatures or in Congress that was not soon well known among the people. Gleaning from the practice of the States, from that of Congress and the British Parliament, the Committee of Detail easily made up the familiar clause on the journal, the secrecy of legislative proceedings and the entry of votes when required by one-fifth of the members present.

South Carolina forbade either House to adjourn for more than three days without the consent of the other, doubtless the origin of the similar provision in the Constitution. New York limited the time to two days. The Congress of the Confederation could adjourn to any time, within the year, but not for a longer period than six months, and to places within the United States.? The Committee of Detail doubtless utilized the precedent when

1 Publication monthly, Article IX.
2 Vermont, 1777, Article XIII; 1786, Article XIV.
3 Article of Confederation, IX.

4 3. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal,

6 South Carolina, 1778, Article XVII
6 Constitution 1777, Article XIV.
7 Article IX.

COMPENSATION OF CONGRESS.

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it originated the clause on the subject in the Constitution. A great innovation was instituted, in providing that members of the legislature should be paid for their services; indeed, the declaration was the first of its kind by any government in history. The suggestion came from Pierce of Georgia.3-4 The members of the grand council for the colonies, proposed by Lord Stair, in 1721, and, thirty years later, by Franklin and Hutchinson, were to receive compensation, but the proposition was only a scheme on paper. Members of Parliament, of the State legislatures and of the Congress of the Confederacy were entitled to the privilege of freedom from arrest while in attendance, and the incorporation of the provision, which was taken almost verbally from the Articles of Confederation, was the suggestion of Pinckney. 6

Perhaps the most important feature of his suggestion of compensation was its source,-the national treasury,as, under the Articles, each State had maintained its delegates at its own expense. Taking freely from these prece

1 4. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

2 Baldwin's Modern Political Institutions (1898), p. 326. 3 June 12, Elliot, p. 185.

4 Section 6: 1. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other place.

5 By the Albany plan a member was to receive ten shillings a day and mileage.

6 Article V of the Articles of Confederation. Massachusetts Constitution of 1780, Part 1, Chapter I, Section 3, Articles X, XI, Pinckney's suggestion, August 20; Elliot, p. 445.

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