Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-06-01


seriously to controyert this fact, for
it is so obvious as to be beyond the
pale of debatable matter. Why, there
is provision in the constitution allow
ing the State ''by law" TO be sued, yet
in the absence of a law every lawyer
knows the State cannot be sued. In
deed, a law was passed subsequent to the
adoption of the constitution giving claim
ants against the State the power of suit.
and while that law was in existence the
State could be sued bat several years ago
il was repealed, and now no such suit can
be maintained; yet the constitution re-
mains unchanged, and nobody pretends
that this proviso, Of itself confers the right
of suit. Ii was claimed, however, by the
gentleman that preceded me on the side Of
the State, thai il law TO that effect
had not been passed. yet parliamentary law
would of itself confer the power on less
than a quorum to compel the attendance
of absent members The fatality Of such.
a claim has, I think, been made SO appa
rent and has been already so fully and sat
isfactorily disposed of that we may also
dismiss it from further consideration.
have exposed this ruse more for the pur-
pose of showing the unfairness that char
actelizes the prosecution, than to furnish
an argument that may convince an lntelli-
gent assembly like that which have the
honor to address. Let us look at the alb
surdity that of this construction. Section
las of the Code reads thus:
"l45. The Senate and House of Repre-
sentatiyes, when assembled, shall each
choose a speaker, and its other officers, be
| Judges of the qualifications and elections of
its members, and sit upon its own adjourn
ments from day to day"
And the next section provides that "two-
thirds of each House shall constitute quo
rum to do business; but smaller number
may adjourn from day to day, and may be
| authorized by law to compel the attendance
Of absent members" Are we to under
stand from this that one Legislature lin
1887 undertakes to enact laws for the
| guidance of others that may come after ii
| The subterfuge is in every way apparent
The whole looks like an appeal dd ignordn-
tam, and may here say er anO desce omnes.
Let one instance serve as a sample of the
/ rest.
| recur to the constitution, and / ask you
whether there be not internal evidence upon
its face that it was to be an after action on
the part of the laW-making power to give
the right to less than a quorum to compel
the attendance of absent members. Then
what are my views in regard TO how a less
number than quorum can be empowered
to compel the attendance of absent mem
bers. When a Congress or Legislature
is elected they come together without rules,
there are no rules that govern Congress
or a Legislature when first it assemblies,
unless it has standing orders" as
the Parliament of England has. When
the Legislature meet therefore, it is
without rules, and it is not possible for
one Assembly to make rules for its success
sor. One Legislature may simply be
governed by its rules throughout the time
of its legal existence. 1t may be so, but il
is not necessarily so. 1t does not follow,
unless by a provision of the rules them
selves it is enacted that the rules adopted
at the first session shall be continued
through the subsequent sessions. When an
| Assembly meets in a called session it meets
without any rules whatever. Then when
the Legislature met under the call of the
| Governor, 1t was a new session, IL was nc
part of the old session. The Governor
thinks proper TO call the Legislature
together, and it is a new session, and con-
| saQusntiy there is 40 rule under which il
Is governed at ALL lay down the posi-
! ton that legislative assembly, at Its
first session, has no laws for its govern
ment and this rule for compelling the at
tendance Of absent members, By less than a
quorum, can have no force, and indeed il
no rule at all until il is enacted by the
Legislature when regularly organized un.
der the constitution. The counsel con
tirmed his position by numerous citations
from Cushing parliamentary lava higf
legal authority, so confessed by the eounse
| on either side.
The counsel proceeded: The right O
: the Legislature simply after it is regularly
| constituted, TO have the attendance of tn,
! | whole Of its members is one of its most un
, doubted and important privileges II i
usually effected by what is designated g;
2 call of the House." But are you "a House
! "a House of Assembly-unless you have
, quorum, two-thirds of all your members
{ Conclusively not l think by the expires
e statements which / have just read from
: Cushing-an authority as fully recognize,
8 by the counsel on the other side a
p by ourselves - have clearly mad
e ont my view in regard to a brane
e of the Legislature to compel the atter
5 dance of absent members The calle
session, then, that met in July, 1866, me
{ without rules, and | think that Judge Fra
e zier was entitled to rule, that in the al
It sence of law comforting on a less numbe
n than a quorum, the right to compel tn
e attendance of absentees, that no power wa
s possessed by the Legislature assembled
e exercise the authority they did in arrestin
is and imprisoning Williams and Martin
Y And yet for having made this decision, h
n has been reyiled and | may say insulte
IF by the remarks which have been made by I'll
e counsel who preceded me ON the other sid
i 1t was said that it was for him for th
II first time in the worlds history to call
e question right which heretofore had nevI
FL been challenged. But if it was the fir
70 time that such decision had been give
n il may be safely affirmed that it is the FIR
"a instance in the history of legislative bodi'
d in which number less than quorum ha
/; presumed 10 exercise such a power. Il
10 was taunted with not knowing what VS.
1. the rule of the House. when in truth thei
I was no rule, because, being a new Hou,
" and its first session, no rule was in force.
e Here is that famous rule No. IA, und,
4. | which they undertook to act: No men
v Der shall absent himself from the serviC
ye of the House without leave first obtained
a But | would like TO know how leave was
le have been obtained before the House hs
le been organized. This was a rule for Il
n government Of the Assembly after il hs
IN met and been organized. | read further
es "In case less number than a quorum
the House shall convene, they are herel
IN | authorized to send the Door-keeper OF al
to other person or persons for any or all abse
IN members.' That is the rule they adopte
ia Now, il seems the words "send for are
re be construed arrest This seems to n
lg rather a capricious definition, and we sha
e. have to get a new dictionary before We G.
IN understand the most ordinary terms OF Il
a. language.
sj Il seems to me / have made out that the
at was no quorum in attendance, and that lie
ye than quorum have no power TO comp
ee the attendance of absent members, b
be il is said that the two members arrestt
at made up quorum But Cushing $50 e
n pressly afiirms that members under CO
n straint cannot be counted as members, n
ell exercise any Of the functions Of membe
A until they are freed from the constrai
e placed upon them. Yes, they say that
l. the Law, but they were not under restrain
ly But then the Sergeant i-at-Arms held the
1 4 ltl- fh