Part 157

Neither the journals of our State Legislatures nor the laws of the Parliament of Great Britain afford examples for thus arbitrarily proceeding. Debate is admitted in the British Parliament on the previous question; our rules exclude it on both the previous and main question. Beside, sir, I need only refer gentlemen to the manual of parliamentary law, from the hand of the third President of the United States, to show that the previous question was confined to subjects of delicacy, which a due regard to the interests of the State or its Government forbade to be agitated. How much, sir, has this question been perverted from its proper province, to silence all debate and force the question, the passage of the law! Such measures are dangerous to freedom, and afford, in evil times, the most fatal examples.

Mr. SMILIE said he was a friend to freedom of debate, but that there was a difference between this, and that abuse of it when you cannot get a decision without an exertion of physical strength. This has been our case several times. The rule now proposed to be altered is the old rule, and is only restored. We very well know, that a debate has been often prolonged merely to prevent a decision. We have been kept till ten and twelve o'clock at night, and sometimes till daylight. It is an inconvenience which he at his time of life had seriously felt. There can be no evil from the rule as now established. The responsibility of the majority is such to the people, that, if they should abuse it, as the minority have their privilege, the people will correct it, when the minority shall fairly state it to them. He said the majority were also responsible to the people to transact the public business.

Mr. STANFORD, in reply to Mr. SMILIE, said he did not think it proper to give this dispensing power to the majority, if they by the constitution did not possess it, as he contended they did not. He said we have heard of a sedition law, and the reign of terror. The bill, when first introduced for that law, went to prevent freedom of speech. This rule, in his opinion, much more deserved the character of a "Gag-law," than the Sedition law did.

Mr. WRIGHT mentioned the great abuses of this privilege of the minority the last winter. He said, if we don't establish a written, decent rule, we must have a common law rule, such as they have in the British House of Commons, to shuffle and put down, when the abuse of this privilege becomes enormous.

Mr. QUINCY.--Mr. Speaker, I do not regard this question in the light in which some of its advocates, as well as its opponents, have considered it; as a mere contest for power between the majority and the minority. It is of a higher character. It affects the essential principles of civil liberty, and saps its hopes at its very foundation. I rejoice that the gentleman from Virginia (Mr. NELSON) has limited his proposition, so as to preclude any mistake concerning the object of it. We are not now advocating an unrestrained privilege of debate. The inquiry is, shall a main question ever be taken in this deliberative body, until every member, who has not already spoken, shall have had an opportunity, if he wishes to avail himself of it, to speak at least once upon the question? The ground taken by those who oppose the proposition, is that of necessity and convenience. These are the very points, which, in a free country, ought most vigilantly to be guarded. For it is here that the spirit of despotism always lies in ambush. Under the cover of necessity, or convenience, it steals upon the liberties of a people, and never fails, sooner or later, to make them its prey.

It is not to be denied, that the subject is in some respects difficult to manage, with any hope of convincing. There is a state of feeling, both within this House and out of it, very unpropitious to an impartial debate. In this House it is argued as a question concerning who shall have the power, a majority, or a minority. And as it is agreed, on all hands, that, in the exercise of the power, abuse may happen, the present majority, like all other majorities, have a prevailing inclination to reserve, in their own hands, the exclusive privilege of abuse. And without doors, the subject is of less difficulty. For, of late years, the popular ear has been so vexed with speech upon speech, wind upon wind, the public patience has been so exhausted, in hunting up the solitary grain of sense, hidden in the bushels of chaff, that it is ready to submit to any limitation of a privilege, which subjects it to so irksome a labor. The people are almost ready to exclaim, "do what you will with the liberty of speech, provided you will save us from that fresh of words, with which we are periodically inundated."

Now, this is the very state of the public mind in which the corruption of essential principles commences. Through apparent necessity, or temporary convenience, or disgust at abuse, the popular sentiment is made to acquiesce in the introduction of doctrines vitally inconsistent with the perpetuity of liberty.

I ask the House to consider what is that principle of civil liberty, which is amalgamated and identified with the very existence of a legislative body. In what does it consist? And what is its character? It consists in the right of deliberation. And its character is, that it belongs not to the body, but the individual members constituting the body. The body has the power to control and to regulate its exercise. But it has not the power to take away that right altogether, by the operation of any general principle. An individual member may render himself unworthy of the privilege. He may be set down; he may be denied the right, because he has abused it. But whenever a legislative body assumes to itself the power of stopping, at its will, all debate, at any stage of deliberation, it assumes a power wholly inconsistent with the essential right of deliberation, and totally destructive of that principle of civil liberty which exists, and is identified with the exercise of that right.

The right of every individual member is, in fact, the right of his constituents. He is but their Representative. It is in their majesty, that he appears. It is their right that he reflects. The right of being heard by their Representative is the inherent and absolute right of the people. Now, it is in the essential character of such a right, that it exists, independent, and in despite of any man, or body of men, whatsoever. It is absurd to say, that any right is independent, which depends upon the will of another. It is absurd to say, that any right is absolute, which is wholly relative to the inclination of another; which lasts only as long as he chooses, and terminates at his nod. Now, whether this power be exercised by one, or many, it matters not. The principle of civil liberty is gone, when the inherent and absolute nature of the right is gone.

Apply this reasoning to the case before us. It is impossible to conceal the fact, that as our rules and orders stand, independent of the proposition now offered as an amendment, it is in the power of a majority to preclude all debate, upon any question, and force every member of the House to vote, upon any proposition, without giving him the opportunity of explaining his own reasons, or stating the interests of his constituents. This is undeniable. Is it not, then, plain and conclusive, that, as our rules and orders now stand, according to recent construction, every member of this House holds his right of speaking, not on the principle of his constituents, whose Representative he is, but upon the will of the majority of this House? For that which another may at any time take away from me, I hold not by my own right, but at his will. Can any thing be more obviously at variance with the spirit of the constitution and the first principles of civil liberty?

Let not any man say this power will not be abused. In the nature of things it must be abused. This is the favorite argument of every despotism, and, of course, will not fail to be urged when it is about to plant itself in the very temple of liberty.

I have chosen to consider this subject in relation to the right of the whole body, and of one of its individual members, rather than to that of a majority and minority. The right to speak is an individual right. Limit it as you please, consistent with a single exercise of that right. But when this is taken away, or, which is precisely the same thing so far as it respects the principle of civil liberty, when it is in the power of one or many, at its sovereign will and pleasure, to take it away, there is no longer any right. We have our tenure of speech as the slave has his--at the will of a master.

But it is said that the Legislature must sometimes "act," and that individuals, by an abuse of this liberty of speech, prevent the whole body from "acting." All I say is, limit the exercise of the right as you please, only do not assume to yourselves the power of taking away the whole right, at your pleasure.

It is in this doctrine, of "the necessity of acting," that lies the whole mystery of that error which we are now combating. Strictly speaking, a Legislative body never "acts." Its province is to deliberate and decide. "Action" is, alone, correctly attributable to the Executive. And it will be found, that all the cases in which this necessity of "action" has been urged, have been cases in which the Legislative body has departed from its appropriate duties of deliberation and decision, and descended to be an instrument, or engine, of the Executive. I hesitate not to say, that this position may be proved by almost every instance in which this necessity of action has been urged. It was an Executive haste to its own purposes, which prevailed upon the Legislative body to deny, to its own members, their privileges.

It has been asserted, that "if this amendment passes, this will be the only deliberative body in the world which cannot stop debate." On the other hand I assert, that if this amendment does not pass, this will be the only deliberative body in the world, pretending to be free, in which it is in the power of a majority to force a decision, without any deliberation. It is not true that, in the British Parliament, the previous question stops debate and forces decision on the main question without deliberation. The previous question there, if decided in the negative, suppresses debate, by postponing the main question. And until 1807, the practice and rules of this House permitted debate of the main question, after an affirmative decision of a previous question. Whoever undertakes to examine the subject will find it as I have stated.

It is not true, that this power ever was, or ever can be necessary, in a Legislative body. In every case in which the previous question, according to recent construction, has been pressed upon the House, it will be found that there was no National or State necessity for an immediate decision. That is to say, in every instance it will be found, that it was of no sort of public importance whether the main question were taken on this day, on the next, or on a third day. Always the question might have been taken in a reasonable time; and every individual member, who chose to speak, might have had the privilege, if he pleased, of speaking, at least once. As far as I observed, all these pretences of necessity have been easily resolvable into party cunning. The subject was one difficult to maintain. It had popular bearings, which it suited not the pleasure of the majority to have investigated. They pressed the minority to instant decision, by refusing adjournment. And as it happens in all such cases, reaction is equal to action. The minority were put upon their mettle, and they put to trial the mettle of the majority.

It is undoubtedly true, that this power may be sometimes convenient. And this is the whole strength of the argument of those who oppose this proposition. The weak and aged members of the majority have been kept all night from their slumbers, by a hale and sturdy minority; which slumbers they might, by the way, at any moment have enjoyed, if that very majority had yielded the point of adjournment. And is this reason of convenience sufficient, in the estimation of this House, to justify it, in depriving this people, in the person of their Representatives, of the essential right of speaking upon this floor? Is this a justification for such an atrocious and exorbitant grasp at power? Our patriotism, nowadays, can submit to no sacrifices. We are not content with sleeping, if we please, every day in our seats, unless we can sleep also every night of the session in our feather beds. And these feather-bed patriots, as I understand, are all agog for a march into Canada; and, if we believe them, are desirous of nothing so much as showing how those can meet privation and watchfulness in the field, who think of nothing but comfort and sleep upon this floor.

I know there is another argument urged in favor of the assumption of this power by the majority, and that is, the haste and clatter which always attend the end of a session. Let our session be long or short, the event is, in this respect, always nearly the same. What with speeches and postponements, and laying down one piece of business half finished, and taking up another, the latter end of a session is a political chaos. The work of this and the other House, and that of the Palace into the bargain, is in fact sometimes to be washed up, in a night--and the members of all branches are knee-deep and shoulder-deep in the suds. Now, this shows the necessity, not of this unlimited power of the previous question, but of conducting public business with more prospective intelligence. The House is just like all other spendthrifts. It first wastes what is its own, and then seeks how it may make up its deficiency out of the property of other people. We pillage the public liberty, in order to compensate for legislative negligence.

I have often been puzzled to imagine a necessity, which could even apologize for such an assumption of power as the majority, by this new construction of the previous question, are attempting; and, until lately, I did not believe that it could possibly exist. The only case, in which there seemed to me to be an apology for resorting to it, was, the other day, when the gentleman from Georgia (Mr. TROUP) threatened to call the previous question upon the majority themselves. I admired both his manner and the occasion on which he introduced that idea. And really there was something like a necessity. If I understood the view of that honorable gentleman, it was, that he thought there was not fighting matter to spare in the stomachs of the majority; and he threatened them with the previous question, lest, peradventure, the whole war spirit should ooze away through the mouth. In this there was both discretion and patriotism.

Mr. BRIGHAM said, that although he was forward in life, he was but of yesterday of this House, and that the rules and orders were not familiar with him. But he exceedingly regretted that this House, in their wisdom, ever found it expedient or proper to adopt a rule to deprive a minority, or an individual member of this House, of the freedom of debate, the freedom of speech, a privilege so much boasted of in this land of liberty. He observed that he had his rights in common with the other members of the House, and that he had his duties to perform. He was not ambitious to become a public speaker, nor would he say that he supposed he could speak to the edification or satisfaction of the House. But should he, on great questions, be denied the privilege of speaking? Suppose the question of peace or war should assume the aspect of solemnity, and it should become necessary and important that this House be made acquainted with the circumstances and disposition of the citizens of the several sections of the country--and suppose a member who is not much accustomed to speaking, silently sits until those gentlemen who are in the habit, and are fond of speaking, shall have exhausted themselves in debate--shall he, in that case, be denied the right of speaking--shall he be deprived of his constitutional privileges and his constituents of the right of representation on the floor of this House?

He said that he was bound by the oath of God to support the constitution, and to promote the welfare of his country; but, if his mouth is stopped, how can he execute his trust or perform his vows? For this House by a rule to interdict the freedom of speech, is an assumption of power, and a violation of right. He hoped, that the rule under consideration would be modified, and that the proposed amendment would be adopted. He wished that each individual member might be permitted to exercise his right of speaking to any question before the House, at least once, if he chooses.

Mr. NELSON spoke in favor of the amendment. He said he had no hesitation in declaring, that whenever right and expediency shall come in competition, that he should prefer right. He remarked, that the constitution secured the freedom of speech to the citizen. And are we, he asked, to be deprived of it when we come to this House--when we enter this temple of liberty? The attempt is not to suspend merely, but to destroy this right, and because we have experienced some inconvenience from this exercise. He agreed with the gentleman from Massachusetts, (Mr. QUINCY,) that if the House would do their duty, and get the business along in the early part of the session, we should never be in the dilemma the House were in, the last session of Congress; and that an inconvenience was a very poor reason for destroying this right of offering our sentiments. He would rather recommend the turning out of doors a member who should become troublesome in speaking too long, than to suffer him to stay in the House and prevent his uttering his sentiments. Even expulsion would not be a greater infringement of his right. The right of the people is the right of their Representatives to speak, deliberate, and decide. As to the plea of necessity, he protested against it as the plea of tyrants.

Mr. ALSTON, of North Carolina, expressed his astonishment, that the gentleman from Virginia (Mr. NELSON) had assumed the ground he had. He said, there were two parties in this House; and asked, is it ever known how a question will be decided, until it is taken?

Mr. BASSETT said, if a stranger was present, and should hear this debate, he would suppose that the question was now for the first time brought forward for the establishment of the rule, against which so much had been said, when it is well known that it has always been the practice.

Mr. PITKIN said, the amendment now under consideration was proposed in consequence of a decision of the House, at the close of the last session, that when the previous question was decided in the affirmative, there could be no debate on the main question; the amendment, if adopted, allows a member, who has not previously spoken, to speak at least once on the main question, before he is called upon to give his vote upon it.

The principle adopted by the majority, during the last days of the last session, and now supported in the House, is this, that a majority, who may happen to be present, at any time, have it in their power, by means of a previous question, as it is called, to prevent all debate on every question before the House, however important it may be; to seal up the lips of every member, and compel him to vote upon the question without an opportunity of expressing his sentiments upon it, or explaining the reasons of his vote. This, Mr. Speaker, is a principle to which I never have, and to which I never will give my assent. What, sir, let me ask, and where is the rule under which the majority claim to exercise this enormous power--the power of imposing silence upon any member, on this floor?

The rule, under which this power is claimed, is in the following words: "The previous question shall be in this form: Shall the main question be now put?" It shall only be admitted when demanded by five members; and, until it is decided, shall preclude all amendment and further debate of the main question, and that "on a previous question there shall be no debate." By a new construction, which a majority of the House thought proper to give to this rule, at the close of the last session, all debate may be prohibited on any question; for five members alone can demand the previous question, and then, of course, all debate must cease, until a decision be had on that question, and if the previous question be decided in the affirmative, by this new construction of the rule, there can be no debate or amendment of the main question. Thus, sir, unless the amendment now proposed be adopted, if a proposition for a declaration of war against Great Britain, or any other nation, should be laid upon your table to-morrow, it will be in the power of a majority of the House, and that majority may consist of less than forty members, to impose silence upon every member of this House; and we must be compelled to vote on a proposition so interesting to the prosperity, happiness, and perhaps the final destiny of this country, without the poor privilege (if we might choose so to do) of raising our voices against it. But, sir, the opponents of the amendment say, that the construction given to the rule the last session, was in conformity with the universal practice of the House, from the establishment of the Government, except in two or three instances.

I deny, sir, that this has been the practice, and I believe I may venture to assert, without fear of contradiction, that no such power has ever been exercised over the members of this House, since its organization, until the last session. I have, sir, examined the journals, with some attention, and have not been able to find a solitary instance of the kind. On the contrary, many cases are to be found when the previous question has been decided in the affirmative, and that, immediately after the main question has not only been amended but has been debated. And here, sir, permit me to observe, that the rule itself, with respect to the previous question, was adopted the first session of the First Congress, and has ever since remained precisely in the same form; and no construction was ever given to it, so as to prevent debate on the main question, until the last session.