Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1866-08-22
Important Legal Opinion.


habca8 corpus at Nashville is shown up in the
following opinion from three able Union lawyers,
prepared at the request of the Legislature;
Our opinion is asked as to whether the action of
| the Judge Of the Criminal Court in the matter of
the petition of Pleasant Williams for the writ of
hGbeGs corpuS, a violation of the privilege of
the House of Representatives.
This involves the consideration of the question
to what the privileges of the House. But be-
fore proceeding to the examination of this question:
will examine the question whether the House,
having less than quorum, could rightfully compel
the attendance of absent members
Outside Of parliamentary rules and precedents in
parliamentary proceedings, the provisions of the
Constitution of the State of Tennessee article 2,
section H. must be looked to furnishing the rule
of law on the point The section is as follows:
SEC IL. The Senate and House of Representa-
tives, when assembled, shall each choose Speaker
and its other officers be judges of the qualifications
and election of its members and sit upon its own
adjournment from day to day. Two-thirds of each
House shall constitute quorum to do business; but
a smaller number may adjourn from day to day, and
may be authorized by law to compel the attendance
of absent members
Il is furthermore provided in section L. that each
House OF the General Assembly may determine the
rules of its proceedings punish its members for dis
orderly behavior, and shall have other powers
cessary for branch of the Legislature of free
State.
article, of the Constitution, smaller number than
a quorum may be authorized by law TO compel the
attendance of absent members.
The House has been authorized by law to compel
the attendance of absent members, for the provis-
ion of the Constitution in relation thereto in article
q section l l. is formally enacted into law, will
be seen by reference to section l46 chapter 2 article
l. of the Code of Tennessee.
1t will be seen Also that by the 18th section ari-
Gle of the Constitution each House NAV determine
I%la of fba hos
done during the session Of 1865, in adopting rules
for its government.
Rule IA provides fully for compelling the attend
ance of absent mbers, as follows:
Rule l4th. No member shall absent himself from
the service Of the House without leave first obained
and in case a less number than a quorum of the
House shall convene, they are hereby authorized to
send the doorkeeper, any other person persons
for any or all absent members, as the majority of
such members present shall agree at the expense Of
such members, respectively unless such for
non-attendance shall be made as the House. when
quorum is convened, shall judge sufficient.
We have, then, the provision of the Constitution
that number less than quorum may be authorlz-
ed by law to compel the attendance Of absent mem
bers law re-enacting that provision provision Of
the Constitution that each House may determine the
rules of its proceedings and rule adopted by the
House providing fully for securing the attendance
of absent members.
The only difference between the provision of the
Constitution of the State Of Tennessee and the Con-
sttuton Of the United States which authorizes the
attendance Of members by compulson is, that in
our State Constitution less number than quorum
(which is two thirds may be authorized by law to
compel such attendance, while in the Constitution
of the United States section s. article J. it is pro-
vided that a less number than quorum (which quo
rum is majority may be authorized to compel the
attendance of absent members in such manner and
under such penalties as each House may provide.
In pursuance of this provision of the Constitution
A. hi of 1fofT-
has provided that fifteen members, including the
Speaker, if there is one, shall constitute q quorum
for the purpose Of compelling the attendance of alb
sent members. iSee rules of the House of Repre-
sentatives.)
In the State of Tennessee, however, much more
liberal construction must obtain For the House of
Representatives of the General Assembly has not
limited the number less than quoFCE to ffteen,
in Congress, but has provided, by rule IA, that in
case less number than quorum shall answer, they
are hereby authorized to send the doorkeeper any
other person parsons, for any or all absent men,
bers the majority Of such members present shall
agree
We deem the above conclusive as TO the power OF
the House of Representatives to compel the attend
dance of absent members; but cumulative, cite
the following authority of the common law of par
lamentary proceedings from Mr.. Cushing's work on
Legislative Proceedings, page lOS section 26s
When the attendance of absent members is CON-
pellable by virtue of rule of the Assembly, it is
usual TO provide that the proceedings for this pur
pose may take place when a number Of the men,
bers less than the Iunbe2 necessary for any ordi-
nary quorum is present. And that number, though
they can do nothing else, may, of course do what
ever is necessary to compel the attendance of absent
MEMBER
Having disposed OF the question whether less
number than q quorum can compel the attendance
of absent members, etc, we now come TO the con-
sderation Ct tie question of what constitutes the
privileges and powers of the House of Representa-
tivesn
The privileges and powers OF each House Of the
General Assembly as found in the Constitution of
the State of Tennessee extend TO the election of q
Speaker and its other officers. As to what number
OF officers 1T will appoint the duties il will annex to
the office, OF the by which the officer snail be
called that is matter left entirely with the House
Each house shall be judges of the election and quail
ifcation of its members sit unon IFS own adj
journment compel the attendance of absent men, |
bers determine the rules Of It's proceedings punish
for disorderly behavior and expel members Under
certain circumstances.
The members shall be in all cases, except treason
felony or breach of the peace, privileged from ar
rest during the session of the General Assembly and
in going to or returning from the same, and shall
not be questioned in any other place for any speech
or debate in the House. Each House may punish !
by Imprisonment during its session any person not
a member who shall be guilty of disrespect to the
House and shall have all the privileges of branch
of the Legislature of q free State
Besides these provisions in the Constitution the
powers and privileges fairly and clearly deducible
therefrom, and in hearing of the House a neces-
sary element in rs organization, and essential the
preservation of its existence and authority the whole
body of parliamentary law as expounded BY states
men and iuriss of emineEca must be looked to in |
order to determine the limits of those powers and |
privileges. Among these powers and privileges is |
the right to have all its members present
Mr.. Gushing, on page lOl, section 264 speaking |
OF the privilege says The right of Legislative |
Assembly TO have the attendance of all its members
except those absent leave etc. and to enforce it
If necessary is one of its most undoubted and i'm
pc-tant privileges" And he says further, page 269
section CSC, that members of the Assembly are /