[Deschler's Precedents]
[From the U.S. Government Printing Office via GPO Access]
[DOCID:52093pl_txt-4]
[Page vi-vii]
PREFACE
Precedents as Law
Asher Hinds noted in the introduction to his work on the precedents
of the House that the great majority ``of the rules of all
parliamentary bodies are unwritten law; they spring up by precedent and
custom; these precedents and customs are this day the chief law of both
Houses of Congress.''(11)
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11. 1 Hinds' Precedents at p. iii.
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On the theory that a government of laws is preferable to a
government of men, the House has repeatedly recognized the importance
of following its precedents and obeying its well-established procedural
rules.(12) In looking to precedents to resolve a point of
order or other procedural question, the House is applying a doctrine
familiarly known to appellate courts as ``stare decisis,'' under which
a judge in making a decision will look to earlier cases involving the
same question of law. In the same way, the House adheres to settled
rulings, and will not lightly disturb procedures which have been
established by prior decision of the Chair. If the will of the majority
is to be determined in an orderly and democratic way, questions must be
resolved by established procedures, with all Members knowing what to
expect.
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12. As early as 1842, recognition was given in the House to the
value of precedents by Chairman George W. Hopkins, of Virginia,
in the course of a ruling made in the Committee of the Whole.
He said he felt constrained to follow precedents until they
were reversed, especially when settled by a solemn decision of
the House. 2 Hinds' Precedents Sec. 1317.
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Thomas Jefferson believed that the Members' awareness of the rules
was as important as the rationale of the rules themselves. He wrote:
``And whether these forms be in all cases the most rational or not is
really not of so great importance. It is much more material that there
should be a rule to go by than what that rule is; that there may be a
uniformity of proceeding in business not subject to the caprice of the
Speaker or captiousness of the members.''(13)
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13. House Rules and Manual Sec. 285 (1973).
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Parliamentary law has come to be recognized as law, in the sense
that it is binding on the assembly and its members except as it may be
varied by the adoption by the membership of
[[Page vii]]
special rules.(14) Thus, the precedents may be viewed as the
``common law,'' so to speak, of the House, with much the same force and
binding effect. Of course, the Speaker is not required to follow
precedents blindly or mindlessly. In fact, the Speaker or Chairman may
refuse to follow a precedent even though it is relevant to a pending
question, where it is the only precedent on the point, and was not
carefully reasoned.(15) In the main, however, parliamentary
probity in the House is now looked upon as a matter of inherent right
rather than a privilege subject to political exigencies, and as a
science rather than an improvisation varied at the discretion of the
Chair.(16)
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14. Parliamentary law has been defined as ``the rules and usages of
Parliament or of deliberative bodies by which their procedure
is regulated.'' A rule of parliamentary law is defined as ``a
rule created and adopted by the legislative or deliberative
body it is intended to govern.'' Landes v State ex rel. Matson,
160 Ind. 479, 67 N.E. 189.
15. 6 Cannon's Precedents Sec. 48.
16. 6 Cannon's Precedents at p. vi.
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Historically, the House has resisted efforts by a Speaker to act
arbitrarily and in disregard of its precedents and procedures. In the
last years of the 19th century, the powers of the Speaker grew to a
point where they approached absolutism. Entrenched behind the power to
appoint committees, and with authority to extend or refuse control of
the floor, the office of Speaker came to be regarded by some as more
powerful even than that of the President of the United States. The
reaction of the membership of the House against this ascendancy of the
powers of the Speaker came quickly. ``Almost overnight'' wrote Clarence
Cannon, ``the slowly accumulated prerogatives of the great office
crumbled. Within three short years (1909-1911) a bipartisan revolution
swept away every vestige of extrajudicial authority.'' The Speaker's
power of recognition was circumscribed; the motion to recommit was
restored to the minority, the election of committees was lodged in the
House, the reference of bills to committees was standardized, and the
determination of legislative policies and programs was delegated to
party caucuses. This wave of reform culminated in the wresting of
control from the Speaker, with ultimate authority passing from the
Chair to the membership.(17) This relationship between the
Members and the Speaker has been more than maintained since the turn of
the century. Today, the office of the Speaker is judicial in character.
The decisions of the Speaker are judicial and mediatory rather than
polemic and partisan.
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17. 6 Cannon's Precedents at pp. vi, vii.
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