When we think of Parliamentary procedures, in the twenty-first century, we instinctively think of Robert's Rules of Order. But Robert's Rules first appeared in 1876, nearly 100 years after the Constitutional Convention. The first edition probably seemed a bit lengthy at the centenary of the Declaration of Independence; it was 120 pages long. By the time of the 10th edition, however, it was over 700 pages. The other possible source that comes to mind concerning rules of procedure at the Founding is Thomas Jefferson's Manual. But this Manual is after the fact so to speak; Vice President Jefferson compiled this Manual as presiding officer of the Senate between 1797 and 1801. It was published in 1801.
I do not mean to suggest that there were no rules of procedure present at the Founding; On the contrary, the Framers spent the first couple of days talking about the rules of the Convention. But it does suggest that the rules were not available in one comprehensive and totally clear form that had become widely accepted from state-to-state and decade-to-decade by the late 18th century. It is important to note in this regard that Article 1, section 5 of the Constitution, written in 1787, gives to the House and the Senate respectively control of their internal rules of operation. Again, I do not mean to suggest that politicians in the mid- to late-18th century simply made the rules up as they went along; rather I am suggesting that there was not ONE rulebook that had achieved a system wide acceptance level. The conduct of self-government in the eighteenth century involved a combination of a few rules, some precedent, and much acting on ones feet.
The rules of procedure agreed to by the delegates at the Constitutional Convention are outlined in James Madison's Notes on May 28 and 29, and William Jackson's Journal for the same days. They form the pillars that support the four-month conversation.
Madison's Notes, on May 27 indicate that a Committee For Preparing Rules consisting of Wythe, Hamilton, and C. Pinckney, was created. On May 28, Madison and Jackson note that the Committee reported following standing rules:
- A House to do business shall consist of the Deputies of not less than seven States; and all questions shall be decided by the greater number of these which shall be fully represented; but a less number than seven may adjourn from day to day.
- Immediately after the President shall have taken the chair, and the members their seats, the minutes of the preceding day shall be read by the Secretary.
- Every member, rising to speak, shall address the President; and whilst he shall be speaking, none shall pass between them, or hold discourse with another, or read a book, pamphlet or paper, printed or manuscriptand of two members rising at the same time, the President shall name him who shall be first heard.
- A member shall not speak oftener than twice, without special leave, upon the same question; and not the second time, before every other, who had been silent, shall have been heard, if he choose to speak upon the subject.
- A motion made and seconded, shall be repeated, and if written, as it shall be when any member shall so require, read aloud by the Secretary, before it shall be debated; and may be withdrawn at any time, before the vote upon it shall have been declared.
- Orders of the day shall be read next after the minutes, and either discussed or postponed, before any other business shall be introduced.
- When a debate shall arise upon a question, no motion, other than to amend the question, to commit it, or to postpone the debate shall be received.
- A question which is complicated, shall, at the request of any member, be divided, and put separately on the propositions, of which it is compounded.
- The determination of a question, although fully debated, shall be postponed, if the deputies of any State desire it until the next day.
- A writing which contains any matter brought on to be considered, shall be read once throughout for information, then by paragraphs to be debated, and again, with the amendments, if any, made on the second reading; and afterwards, the question shall be put on the whole, amended, or approved in its original form, as the case shall be.
- That Committees shall be appointed by ballot; and the members who have the greatest number of ballots, although not a majority of the votes present, shall be the Committee. When two or more members have an equal number of votes, the member standing first on the list in the order of taking down the ballots, shall be preferred.
- A member may be called to order by any other member, as well as by the President; and may be allowed to explain his conduct or expressions supposed to be reprehensible. And all questions of order shall be decided by the President without appeal or debate.
- Upon a question to adjourn for the day, which may be made at any time, if it be seconded, the question shall be put without a debate.
- When the House shall adjourn, every member shall stand in his place, until the President pass him.
In a footnote reference on May 28, Madison reports that there was a debate between the Pennsylvania and Virginia delegates on whether to insist on a proportional system of voting at the Convention, or to retain, albeit temporarily, the principle of one state one vote as prevailed under the Confederation. The latter prevailed.
- Voting at the Convention shall be one state one vote.
Madison and the Journal report that six additional rules were agreed to on May 29.
- No member shall be absent from the House, so as to interrupt the representation of the State, without leave.
- That Committees do not sit whilst the House shall be or ought to be, sitting.
- That no copy be taken of any entry on the journal during the sitting of the House without leave of the House.
- The members only are permitted to inspect the journal.
- That nothing spoken in the House be printed, or otherwise published or communicated without leave.
- That a motion to reconsider a matter which had been determined by a majority, may be made, with leave unanimously given, on the same day on which the vote passed; but the otherwise not without one day's previous notice: in which last case, if the House agree to the reconsideration, some future day shall be assigned for the purpose.
But even these 21 basic rules in support of civilized conversation cannot cover every possible situation because every contingency cannot be anticipated. Thus we need a President whose decision on unanticipated matters shall be final. During the first two months of the Convention, Nathaniel Gorham of Massachusetts was, for the most part, the chair, chosen probably because of his experience in leading the debates in the Confederation Congress. During the last two months, George Washington filled that role.