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stance, 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 grounds 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 gov ment, and even of every private man, under pretences 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. Decl. of the Cm. on the King's declaring Sir John Hotham a traitor. 4 Rushw. 586. So when a member stood indicted of felony, it was adjuged 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.
When it is found necessary for the public service to put a member under arrest, or when, on any public enquiry, 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.
It is highly expedient, says Hatsell, for the due preservation of the privileges of the separate branches of the legislature, that neither should encroach on the other, or interfere in any matter depending before them, so as to preclude, or even influence that freedom of debate, which is essential to a free council. They are therefore not to take notice of any bills or other matters depending, or of votes that have been given, or of speeches which have been held, by the members of either of the other branches of the legislature, until the same have been communicated to them in the usual parliamentary manner. 2 Hats, 252. 4. Inst. 15. Seld. Jud. 53. 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, Dec. 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.
An ACT for preventing any inconveniencies that may happen by Privilege.-R. Laws, vol. 1. p. 122, 123.
Passed 20th February, 1788.
[J. & V. v. 2. 229 —Gr. v. 2. 59.—K. & R. v. 1. 133.]
I. Be it enacted by the People of the State of NewYork, represented in Senate and Assembly, and it is hereby enacted by the authority of the same, That from and after the passing of this act, any person or persons, shall and may commence and prosecute any action or suit in any court of record in this state, against any senator or member of assembly for the time being, or against their or any of their servants, or any other person entitled to the privilege of either house of the legislature, at any time from and immediately after the prorogation or adjournment of the legislature, until a new legislature shall meet, or the same be re-assembled; and from and immediately after any adjournment of both houses of the legislature for above the space of fourteen days, until both houses shall meet or re-assemble; and that the said respective courts of record shall and may, after such prorogation or adjournment as aforesaid, proceed to give judgment, or to make final orders, decrees and sentences, and award execution thereupon, as such court may now lawfully do against other persons, liable to be arrested and imprisoned; any law, usage or custom to the contrary thereof notwithstanding. Provided always, That no member of the legislature, or his servant or servants, shall be liable to arrest, on any civil process, while coming to, or returning from the place were the legislature shall sit, to the place of such member's residence, but I
such time of coming or returning, shall not exceed fourteen days.
II. And be it further enacted by the authority aforesaid, That where any plaintiff or plaintiffs shall, by reason or occasion of any privilege of either house of the legislature, be stayed or prevented from prosecuting any suit by him, her or them commenced, such plaintiff or plaintiffs shall not be barred by any statute of limitation, or nonsuited, dismissed, nor his, her or their suit discontinued for want of prosecution of the suit, by him, her or them begun; but may, after the time aforesaid, be at liberty to proceed to judgment and execution thereupon, as aforesaid.
III. And whereas, it is just and reasonable, that persons employed in offices and places of public trust, should at all times be accountable for any misdemeanors therein, and the public justice of the state requireth a vigorous prosecution of such offenders; Therefore, Be it further enacted by the authority aforesaid, That any action or suit shall and may be commenced, and prosecuted in any court of record in this state, against any officer or person intrusted or employed in the revenue of this state, or any part or branch thereof, or in any other office or place of public trust, for any forfeiture, misdemeanor or breach of trust, of, in or relating to such office or place of trust, or any penalty imposed by law to enforce the due execution thereof; and that no such action, suit, or any other process, proceeding, judgment or execution thereupon, although such officer or person shall be a member of the senate or assembly, shall be impeached, stayed or delayed, by or under colour or pretence of any privilege of either house of the legislature.
An ACT for the Prevention of Bribery.
R. Laws, vol. 2, p. 191. Passed February 25, 1813.
[W. v. 4. 634.-Sess. 29. c. 181.]
I. Be it enacted by the People of the State of NewYork, represented in Senate and Assembly, That if any person shall promise, offer, or give to any member of the council of revision, council of appointment, or any commissioner of the land office, or member elect of the senate or assembly of this state, or any member who hath qualified and taken his seat in the said senate or assembly, v, any money, goods, chattels, chose in action, or other property, with intent to influence his vote on any question brought or to be brought before the said councils, board of commissioners, senate or assembly, such person shall be deemed guilty of a high misdemeanor, and shall on conviction thereof be fined in a sum not exceeding five thousand dollars, or imprisoned in the state-prison at hard labor, for a term not exceeding ten years, or both, in the discretion of the court.
II. And be it further enacted, That if any such member of the said councils, board of commissioners, senate or assembly, shall give his vote on any question brought as aforesaid, in consequence of such corrupt promise or promises, offer or offers, gift or gifts, such member shall be deemed guilty of a high misdemeanor, and shall, on conviction thereof, be fined and imprisoned as aforesaid, and also be for ever disqualified from holding a seat in the legislature, or any office of honor, profit, or trust in this state.
III. And be it further enacted, That it shall be the duty of the attorney-general to cause all persons already indicted, or who may be hereafter indicted for corrupting, or attempting to corrupt any such member of the legislature, or of the councils or board of commissioners aforesaid, to be brought to trial, and to attend in person to the execution of the duties required of him by this act.
A majority of the members is a quorum.-Const. Art. 1, Sec. 3.
In general, the chair is not to be taken by the speaker, till a quorum for business is present; unless after due waiting, such a quorum be despaired of, when the chair may be taken and the house adjourned. And whenever during business, it is observed that a quorum is not present, any member may call for the house to be counted, and being found deficient, business is suspended.
Upon the appearance of a quorum the speaker shall take the chair, and the members shall be called to order. -Rules of assembly 1.
Immediately after the speaker shall have taken the chair, the minutes of the preceding day shall be read by the clerk, to the end, that any mistakes therein may be corrected by the house.-R. of A. 2.
CALL OF THE HOUSE.
On a 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. H. Com. 92.
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.