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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 intent a member, except that he cannot vote until he is sworn. Memor. 107, 108. Dewes 642. col. 2, 643. col. 1. Pet. Miscel. Parl. 119. Lez. Parl. c. 23. 2 Hats, 22, 62. Every man must, at his peril, take notice who are members of either house returned of record.—Lez. 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. I Grey, S8, 95. The privilege of a member is the privlege 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. For any speech or debate in either house, they shall not be questioned in any other place. Const. of U. S. I. 6. S. P. Protest of the commons to James I. 1621. 2 Rapin, No. 54, pa. 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. If an offence 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. Lez. Parl. 63. Privilege is in the power of the house, and is a restraint to the proceeding of inferior courts; but not of the house itself. 2 Nalson 450.2 Grey, 399. For whatever is spoken in the house is subject to the censure of the house; and offences 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. 2 Hats. 175. 6.5. Grey 133. 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 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 govment, 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 C m. 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. 15S0. D’Eules. 283. col. 1. Ler. 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.
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 a ter 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
A majority of the members is a quorum.—Const. Art. 1, C. 5. 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 qilorum 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.
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.
No member, after having appeared and been sworn, can with propriety, absent himself from the house during the hours of business, without leave first asked and obtained from the house; unless he have a reasonable exCuse therefor, as illness, or other urgent business, &c.
The speaker, under the direction of the house, may send the sergeant at arms of the house, for any such member, absenting himself from the house during the hours of business.
He is chosen by ballot; the clerk of the preceding session superintends the proceedings in organizing the new house, till the speaker is placed in the chair. The speaker is conducted to the chair, immediately after his election, by a committee of two members appointed by the house, under a nomination by the acting clerk. His powers and duty are various. The Speaker shall preserve order and decorum, and shall decide questions of order, subject to an appeal to the house; he shall have the right to name any member to perform the duties of the chair, but such substitution shall not extend beyond an adjournment. R. of A. 3. The speaker shall not vote in any case, unless where the vote shall be by ballot; or when the house shall be equally divided; or when his vote, added to the minority, shall make an equal division; and in case of such equal division, the question shall be lost. R. of A. 4. When the house is in committee of the whole, the speaker addresses the chair on the matter, and votes as any other member. When the house adjourns, the members shall keep their seats until the speaker leaves the chair. R. of A. 5. - I 2