Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-05-28

lnen why was AZ necessary 10 pass Slch q
law as you subsequently did, authorizing
the Legislature to do this very thing? Can
any man stultify himself by declaring that
be believes for one moment, when the con-
stitution says that less than quorum may
be authorized by law to enforce the attend
ance Of members, that in virtue of such a
clause less than a quorum of the Legisla-
ture, without the enactment of any law on
the subject, has the right to enforce -the
attendance Of absent members If that has
the force of law in it, then anything is to
be accounted law which the Legislature
may, can, will, or shall do.
The latter part of section seventeen Of the
bill Of rights, page thirty-four of the
Code, provides that suits may be brought
against the State, in such manner and in
such courts As the Legislature NAV by law
direct Put tie wellknown case Of the
State, in error, IS. Crutchtield's executors,
CD Heads Rep, determined that in the
absence Of a special enactment Of the Lee
gislature, this conferred no right Of suit
against the State. Is there any lawyer or
Judge that will assert that a suit could have
been brought under that grant Of the con
stitution, until in 1855 a law was
made comforting this power? Until then
the only recourse was to bring the matter
before the Legislature. But section l46,
article / Of the constitution has a precisely
analogous provision, empowering the Lee
gislature, "by law" TO confer the power on
less than quorum Of the body TO compel
the attendance of absent members. 1t is
cOuched in these terms: A smaller num-
Der than a quorum may adjourn from day
to day, and may be authorized by law to
compel the attendance Of absent members
Now is any man absurd enough to say that
1t ia the law Of the land, that less than two
thirds of either branch of the Legislature
may compel the attendance of its members.
merely because the constitution makes
this provision, and without any
express enactment comforting this power e?
/ can hardly think 50. The Legislature
had passed no law comforting such power.
Then, | ask, under what law of the State
or provision of the constitution, Pleasant
Williams was arrested? | say under none
whatever. Less than two,thirds can do no
business less than two thirds can pass no
law; less than two-thirds can make no rule
that Is sanctioned by the Constitution or
laws Of the land You know what a Tar
Is under this rule, under this provision of
the constitution. The constitution itself tells
me how a law is to be made il is to pass
both Houses Of the Legislature receive the
signature of the Speaker, and then il be-
comes the law of the land
We have heard something, and perhaps
shall hear more, Of the rights of a free
State. But | am addressing you to show
what a House can do. They can do nothing
in violation Of a free constitution. The
constitution tells us that less than two
thirds of a House may be authorized "by
law to compel the attendance Of mem
bcrs, but that law must be enacted first
wish, may it please the court to read a
passage from Cushing's Manual on this
subject. 1t occurs in section 257 of Cush-
ing's Law and Practice of Legislative As
sembies:
The constitution of Pennsylvania provides,
that smaller number than quorum may be
authorized by law 10 compel the attendance of
absent members m such manner and under such
penalties as may be provided" That of Ten
nessee contains a similar claIse. In the cOnsti-
tunun of Louisiana, which contains a like pro-
vision, the word shall" is inserted instead of
may The constitutions of Kentucky and
ONO have the same provision. in substance rs
Pennsylvania. Clauses of this description au-
thOrize the Legislatures of the States in which
they prevail, to provide beforehand by law
that each Legislative Assembly, though contain
ing less than quorum, may compel the attend
auce of its members; and this authority may as
wen be exercised so as to relate TO the first as
sembllng, as after the constitution of the A.
sembly. When this is the case, il the requisite
number do not appear, those who do, may. of
course, resort to the measures provided by law,
to compel the attendance Of absent members
staflN A To-
when duly constituted, has power to compel the
Attendance OF its members; but, until so con-
situted, II has no such power rs II has itself no
legal existence and the right of the members
who are present for the purpose Of organization
60 compel the attendance Of other members de-
ponds wholly, as has been seen, upon the con
stitution and law to which each Assembly is
subject.
Section 36l. Where the number necessary to
form a quorum of a Legislative Assembly is iYed
without the presence Of whom no business can
be entered upon or proceeded with. the inability
applies 70 questions of adjournment as well as to
other matters of business and, if a quorum is
not present, no question of adjournment can
properly be proposed to the assembly itself for
its decision, for Il is not then in condition to
decide any question. The only thing that can
be done in such an emergency is for the presd-
ing officer or the Clerk If the former il not pre-
sent. to declare, without putting the question
thereupOn, that the Assembly stands adjourned
until the next sitting day. This is as eifeetual.
To continue the session, as an adjournment on
question, and the Assembly is as regularly ap-
pointed TO meet on the next sitting day as it
would be by its own order This rule, which is
derived from the House of Commons only ap-
plies 20 those assemblies which, like that House,
have fixed quorum, but no power of dispensing
with the want OF one, OF otproceedlng upon any
thing in its absence.
Is il possible for human language to
make this question palmer. The constitu-
ton provides that less than quorum may
be authorized by law" to do certain thing,
hut that law not having been passed they
have no authority to act in the premises.
This distinguished legal authority says
Z" they cannot command the attendance of
absent members" Again our constitution
provides that less than quorum can meet
and adjourn from day to day. And their
ability to do this you will observe arises
not from some property inherent in the
Legislature, but is derived from the express
provision of the constitution itself. And
but for the fact that the constitution had
conferred this right they could not have
exercised even that minimum Of preroga-
tive which this implies. How much less
then, without an express provision Of the
constitution or the enactment of a law,
could they be authorized TO assert such a
power as is implied IN the arrest and inn
prisonment of absent members
have said sufficient to indicate the cir
cumstances under which Pleasant Williams
petitioned for a writ of habeds corpus. The
House had passed resolution toarrest him
he had been arrested andw in the Gus ody
of the Sergeant at arms They passed
another resolution authorizing the Sergeant
alarms 10 continue him under arrest.
What was Judge Frazier TO do when, under
these circumstances, a petition was pre-
scented to him for a writ of hdbeds corpus
What did he decide? He decided that the
arrest was without the sanction of the law,
and in defiance Of the constitution. And If
he CREDIT he decided adversely to what
the law and the constitution provides
think the fault must be with the laws and
the constitution themselves; for assuredly
thew are couched in terms that seem to
teach anything rather than that which
we are told they mean. We feel
safe, at all events, in claiming that
if Judge Frazier erred, he erred in
Judgment only There is not the slight
est scintilla Of evidence 10 show that he did
it "willfully, mshciously, corruptly, OF
feloniously' Is Judge Frazier, then, to
be dealt With on principles foreign and re-
mote from those which heretofore have
ever guided the most august assemblIes
when celebrating on matters OF similar
moment throughout the civilized world
Who ever heard Of a Judge being i'm
peached for an error Of Judgment? ] may
cite well-knogn oase-N ates against Ian
i 1