proceedings, and can punish its members for disorderly behavior; and, with the concurrence of two thirds, expel a member. (c) Each house is likewise bound to keep a journal of its proceedings, and from time to time publish such parts as do not require secrecy, and to enter the yeas and nays on the journal, on any question, when desired by one fifth of the members present. (d) Neither house, during the session of Congress, can, without the assent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. (e) The members of both houses are likewise privileged from arrest during their attendance on Congress, and in going to and returning from the same, except in cases of treason, felony, and breach of the peace. (f) These privileges of the two houses are obviously necessary for their preservation and character; and what is still more important to the freedom of deliberation, no member can be questioned out of the house for any speech or debate therein. (g) 2

far as related to the morning sittings, appropriated to private business and petitions. The House of Lords may proceed to business if only three lords be present.

(c) The power of expulsion is in its nature discretionary, and its exercise of a more summary character than the power of judicial tribunals. Case of J. Smith, 1807. The cases are numerous in which members of the House of Commons in England have been called to account and punished by admonition, imprisonment, or expulsion, as the case might require, for offensive words or conduct before the House. May's Treatise on the Law of Parliament, 80.

(d) Art. 1, sec 5.

(e) Art. 1, sec. 5.

(ƒ) Art. 1, sec. 6. This privilege is confined to the members, and does not extend to their servants, and it applies as well to arrests on execution as to arrests on mesne process. The arrest is illegal and void, and after the cessation of the privilege, the member may be arrested de novo for the same cause. If elected a member while in custody, on civil process of any kind, his privilege as a member operates to entitle him to his discharge during the continuance of the privilege. This is the English parliamentary law. May's Treatise, &c., 93, 97. But by several statutes in the reign of Geo. III. (10 Geo. III., 45 Geo. III., 47 Geo. III.), privilege is no stay of proceedings in civil suits, down to judgment and execution, with the exception of personal arrest and imprisonment, nor does the privilege extend to commitments for contempts in courts of justice. Wellesley's Case and Charlton's Case, cited in May's Treatise, &c., 108, 109.

(g) Art. 1, sec. 6. The question whether a senator or member of the House of Representatives is liable to impeachment for conduct in his legislative capacity, is

2 However it may be in case of the publication of a separate speech, it is now settled that faithful reports in the newspapers of parliamentary debates are

privileged.

Wason v. Walter, L. R. 4 Q. B. 73. But this decision professed to leave unshaken the determination in Stockdale v. Hansard, that an order of

There is no power expressly given to either house of Congress to punish for contempts, except when committed *by their own members; but in the case of Anderson, *236 who was committed by order of the House of Representatives, for a contempt of the House, and taken into custody by the sergeant-at-arms, an action of trespass was brought against the officer, and the question on the power of the House to commit for a contempt was carried by writ of error to the Supreme Court of the United States. (a) The court decided that the House had that power, and that it was an implied power, and of vital importance to the safety, character, and dignity of the House. The necessity of its existence and exercise was founded on the principle of self-preservation; and the power to punish extends no further than imprisonment, and that will continue no longer than the duration of the power that imprisons. The imprisonment will terminate with the adjournment or dissolution of Congress. (b) 1

1

considered by Mr. Justice Story, in his Commentaries, ü. pp. 259-262; and the weight of authority, and the reason and policy of the thing, are decidedly in the negative, and in favor of the principle that members of Congress should be exempt from im peachment and punishment for acts done in their collective or congressional capacity. Though a member of Congress is not responsible out of Congress for words spoken there, though libellous upon individuals; yet if he causes his speech to be published, he may be punished as for a libel by action or indictment. This is the English and the just law. The cases of Lord Abingdon and of Creevy, 3 Esp. 228, 1 Maule & Sel. 278.

(2) Anderson v. Dunn, 6 Wheaton, 204.

(b) The duration of imprisonment for contempts terminates also in England upon

the House of Commons would not protect the publication of matter not otherwise privileged, for that would be allowing one branch of the legislature to change the law.

1 As to the powers and privileges of the Parliament of Great Britain, see Howard v. Gosset, 10 Q. B. 359, 411. See also generally on commitment for contempt, the case of Fernandes, 6 Hurlst. & N. 717, and 10 C. B. N. s. 3. The legislative assemblies of the British colonies have, in the absence of express grant, no power to adjudicate upon, or punish for, contempts committed beyond their walls. Doyle v. Falconer, L. R. 1 P. C.

328, 339; Kielley v. Carson, 4 Moore, P. C. 63; Fenton v. Hampton, 11 Moore, P. C. 347; In re Brown, 33 L. J. N. s. Q. B. 193, 5 Best & S. 280. Nor even for a contempt committed in their presence and by one of their members. The right to remove for self-security is one thing, the right to inflict punishment is another. The latter power is judicial, and is not necessary to the existence of a legislative assembly. Doyle v. Falconer, L. R. 1 P. C. 328, 340 (citing and seemingly disapproving Anderson v. Dunn). When a statute gives the power, sea Speaker of Leg. Ass. of Victoria v. Glass, L. R. 3 P. C. 560. The Massachusetta

The House of Representatives has the exclusive right of originating all bills for raising revenue, and this is the only privilege that house enjoys, in its legislative character, which is not shared equally by the other; and even those bills are amendable by the Senate in its discretion. (c) The two houses are an entire and perfect check upon each other, in all business appertaining to legislation; and one of them cannot even adjourn, during the session of Congress, for more than three days, without the consent of the other, nor to any other place than that in which the two houses shall be sitting. (d)

The powers of Congress extend generally to all subjects of a national nature. Many of those powers will hereafter become the subject of particular observation and criticism. At present,

the close of the existing session of Parliament. Stockdale v. Hansard, cited in May's Treatise on the Privileges of Parliament, 75. The decision of the Supreme Court, in the case of Anderson, is accompanied with a course of reasoning which would seem to be sufficient to place the authority of either house of Congress to punish contempts and breaches of privileges on the most solid foundation, independent of the absolute authority of the decision. The constitutional exercise of the same power by each house of Parliament has been repeatedly vindicated in Westminster Hall in the most masterly manner. Lord Ch. J. De Grey, in Rex v. Crosby, 3 Wils. 188; Lord Ellenborough, in Burdett v. Abbott, 14 East, 1. It is a power inherent in all legislative assemblies, and is essential to enable them to execute their great trusts with freedom and safety; and it has been frequently exercised, not only in Congress, but by the respective branches of the state legislatures, and may be considered as indisputably acknowledged and settled. Story, Comm. ii. pp. 305–317. What acts shall amount to a contempt of either house of Congress are not defined, and must be left to the judgment and discretion of the house, under the circumstances of each case. In England, libels upon the character or proceedings of either house of Parliament, or any of its members, are regarded as breaches of privilege, and punishable as for contempts, by imprisonment. May's Treatise on the Law and Privileges of Parlia ment, 62. Burdett v. Abbott, supra. But with us such a course of redress has not been adopted, and the house that was injured would probably, if redress was sought, direct a public prosecution by indictment. The act of Congress of 14th July, 1798, made it an indictable offence to libel the government, Congress, or President of the United States. Vide infra, ii. 24.

(c) Art. 1, sec. 7.

(d) Art. 1, sec. 5.

House of Representatives can commit for contempt a party who refuses to attend as a witness and testify before a committee of the House. But the Supreme Court can inquire on habeas corpus into the propriety of the commitment. Burnham v. Morrissey, 14 Gray, 226; State v. Matthews, 37 N. H. 450. In Sanborn v. Carle

ton, 15 Gray, 399; s. c. 23 Law Rep. 7, it was held that the sergeant-at-arms of the United States Senate, having a warrant to arrest a party for contempt, could not delegate his authority, and authorize an arrest by his deputy in Massachusetts.

2 9 Ad. & El. 1; 11 Ad. & El. 253, 278, 297; ante, 235, n. 2.

it will be sufficient to observe, generally, that Congress are authorized to provide for the common defence and general welfare; and for that purpose, among other express grants, they are authorized to lay and collect taxes, duties, *237 imposts, and excises;- to borrow money on the credit of the United States; to regulate commerce with foreign nations, and among the several states, and with the Indian tribes; - to declare war, and define and punish offences against the law of nations; to raise, maintain, and govern armies, and a navy ;to organize, arm, and discipline the militia;—and to give full efficacy to all powers contained in the Constitution. Some of these powers, as the levying of taxes, duties, and excises, are concurrent with similar powers in the several states; but in most cases, these powers are exclusive, because the concurrent exercise of them by the states separately would disturb the general harmony and peace, and because they would be apt to be repugnant to each other in practice, and lead to dangerous collisions. The powers which are conferred upon Congress, and the prohibitions which are imposed upon the states, would seem, upon a fair and just construction of them, to be indispensable to secure to this country the inestimable blessings of union. The articles of con federation, digested during the American war, intended to confer upon Congress powers nearly equal to those with which they are now invested; but that compact gave them none of the means requisite to carry those powers into effect. And if the sentiment which has uniformly pervaded the minds of the people of this country be a just one, that the consolidated union of these states is indispensable to our national prosperity and happiness, — and if we do not wish to be once more guilty of the great absurdity of proposing an end, and denying the means to attain it, — then we must conclude that the powers conferred upon Congress are not disproportionate to the magnitude of the trust confided to the Union, and which the Union alone is competent to fulfil.

The rules of proceeding in each house are substantially the same; and though they are essential to the transaction of business with order and safety, they are too minute to be treated at length in an elementary survey of the consti- *238 tutional polity and general jurisprudence of the United States. The House of Representatives choose their own Speaker, but the Vice-President of the United States is, ex officio, Presi

dent of the Senate, and gives the casting vote when they are equally divided. The proceedings and discussions in the two houses are public. This affords the community early and authentic information of the progress, reason, and policy of measures pending before Congress, and it is likewise a powerful stimulus to industry, to research, and to the cultivation of talent and eloquence in debate. Though these advantages may be acquired at the expense of much useless and protracted discussion, yet the balance of utility is greatly in favor of open deliberation; and it is certain, from the general opposition to the experiment that was made and continued for some years by the Senate of the United States, of sitting with closed doors, that such a practice, by any legislative body in this country, would not be endured. 5. Manner of passing Laws. The ordinary mode of passing laws is briefly as follows: (a) One day's notice of a motion for leave

(a) See the standing rules and orders of the House of Representatives, printed in 1795, by Francis Childs. The rules and forms of proceeding in legislative bodies are not only essential to orderly and free discussion and deliberation, but those forms become substance; for they operate as safeguards of liberty, and a protection to the minority against the violence and tyranny of the majority. It was an observation of Mr. Onslow, for many years Speaker of the English House of Commons, that he had often heard old and experienced members say, that nothing tended more to throw power into the hands of the administration, than a neglect of or departure from the rules of proceeding. Hatsel's Precedents of Proceedings in the House of Commons, and Jefferson's Manual of Parliamentary Practice, and especially May's Treatise upon the Law, Privileges, Proceedings, and Usage of Parliament, London, 1844, and Cushing's Rules of Proceeding and Debate in Deliberative Assemblies, Boston, 1845, ought to be thoroughly studied by all leading and efficient members in legislative assemblies.

Among the rules of the House of Representatives, the establishment of what is termed the previous question is of great importance. It is understood not to apply when a bill or motion is under discussion in a committee of the whole House, but only when the same is before the House, with the Speaker in the chair. The previous question is admitted when demanded by a majority of the members present; and it enables a majority at any time to put an end in the House to all discussion, and to put the minority to silence by a prompt and final vote on the main question. It is whether the question under debate shall now be put; and, until it is decided, it precludes all amendment and debate of the main question, and all motions to amend, commit, or postpone the main question. If the previous question be decided affirmatively, the main question is to be put instantaneously, and no member is allowed to amend or discuss it. The previous question has long been in use in the English House of Commons; and if it be carried in the affirmative, no alteration can then take place, no debate is suffered to intervene, and the Speaker puts the main question immediately. Dwarris on Statutes, 1830, p. 291. During the period of the Continental Congress, under the articles of confederation, the previous question was regarded rather as a preliminary inquiry into the propriety of the main question. This