298 CONSTITUTION OF THE U. STATES. [BOOK III.
PRIVILEGES AND POWERS OF BOTH HOUSES OF
§ 835. THE next Clause is, "each house may determine the rules of its
proceedings, punish its members for disorderly behaviour, and, with the
concurrence of two thirds, expel a member." No person can doubt the
propriety of the provision authorizing each house to determine the rules of
its own proceedings. If the power did not exist, it would be utterly
impracticable to transact the business of the nation, either at all, or at
least with decency, deliberation, and order. The humblest assembly of men
is understood to possess this power; and it would be absurd to deprive the
councils of the nation of a like authority. But the power to make rules
would be nugatory, unless it was coupled with a power to punish for
disorderly behaviour, or disobedience to those rules. And as a member might
be so lost to all sense of dignity and duty, as to disgrace the house by
the grossness of his conduct, or interrupt its deliberations by perpetual
violence or clamour, the power to expel for very aggravated misconduct was
also indispensable, not as a common, but as an ultimate redress for the
grievance. But such a power, so summary, and at the same time so subversive
of the rights of the people, it was foreseen, might be exerted for mere
purposes of faction or party, to remove a patriot, or to aid a corrupt
measure; and it has therefore been wisely guarded by the restriction, that
there shall be a concurrence of two thirds of the members, to justify
CH. XI.] PRIVILEGES OF CONGRESS. 299
an expulsion.1 This clause, requiring A concurrence of two thirds, was
not in the original draft of the constitution, but it was inserted by a
vote of ten states, one being divided.2 A like generalauthority to expel,
exists in the British house of commons; and in the legislative bodies of
many of the states composing the Union.
§ 836. What must be the disorderly behaviour, which the house
and what punishment, other than expulsion, may be inflicted, do not appear
to have been settled by any authoritative adjudication of either house of
congress. A learned commentator supposes, that members can only be punished
for misbehaviour committed during the session of congress, either within,
or without the walls of the house; though he is also of opinion, that
expulsion may be inflicted for criminal conduct committed in any place.3
He does not say, whether it must be committed during the session of
congress or otherwise. In July, 1797, William Blount was expelled from the
senate, for "a high misdemeanour, entirely inconsistent with his public
trust and duty as a senator." The offence charged against him was an
attempt to seduce an American agent among the Indians from his duty, and to
alienate the affections and confidence of the Indians from the public
authorities of the United States, and a negotiation for services in behalf
of the British government among the Indians. It was not a statuteable
offence; nor was it committed in his official character; nor was it
committed during the session of congress; nor at the seat of government.
1 Mr. J. Q. Adams's Report to the senate in the case of John Smith, 31
Dec. 1807; 1 Hall's Law Journ. 459; Sergeant on Const. Law, ch. 28,
2 Journal of Convention. 218, 243.
3 Rawle on the Constitution, ch, 4, p. 47
300 CONSTITUTION OF THE U. STATES. [BOOK III.
Yet by an almost unanimous vote1 he was expelled from that body; and he
was afterwards impeached (as has been already stated) for this, among other
charges.2 It seems, therefore, to be settled by the senate upon full
deliberation, that expulsion may be for any misdemeanour, which, though not
punishable by any statute, is inconsistent with the trust and duty of a
senator. In the case of John Smith (a senator) in April, 1808, the charge
against him was for participation in the supposed treasonable conspiracy of
Colonel Burr. But the motion to expel him was lost by a want of the
constitution majority of two thirds of the members of the senate.3 The
precise ground of the failure of the motion does not appear; but it may be
gathered from the arguments of his counsel that it did not turn upon any
doubt, that the power of the senate extended to cases of misdemeanour, not
done in the presence or view of the body; but most probably it was decided
upon some doubt as to the facts.4 It may be thought difficult to draw a
clear line of distinction between the right to inflict the punishment of
expulsion, and any other punishment upon a member, founded on the time,
place, or nature of the offence. The power to expel a member is not in the
British house of commons confined to offences committed by the party as a
member, or during the session of parliament; but it extends to all cases,
1 Yeas 25, nays 1.
2 See Journal of Senate, 8 July, 1797; Sergeant's Const. Law, ch. 28, p.
286; 1 Hall's Law Journ. 459, 471.
3 Yeas 19, nays 10.
4 1 Hall's Law Journ. 459, 471; Journ. of Senate, 9 April, 1808;
Sergeant's Const. Law, ch. 28, p. 287, 288. See also proceedings of the
senate in the case of Humphrey Marshall, 22 March, 1796; Sergeant's Const.
Law, ch. 28, p. 285.
CH. XII.] PRIVILEGES OF CONGRESS. 301
where the offence is such, as, in the judgment of the house, unfits him for
§ 837. The next clause is, "each house shall keep a journal of its
proceedings, and from time to time publish the same, except such parts, as
may in their judgment require secrecy. And the yeas and nays of the members
of either house on any question shall, at the desire of one fifth of those
present, be entered on the journal."
§ 838. This clause in its actual form did not pass in the
without some struggle and some propositions of amendment. The first part
finally passed by an unanimous vote; the exception was carried by a close
vote of six states against four, one being divided; and the remaining
clause, after an ineffectual effort to strike out "one filth," and insert
in its stead, "if every member present," was finally adopted by an
unanimous vote.2 The object of the whole clause is to ensure publicity to
the proceedings of the legislature, and a correspondent responsibility of
the members to their respective constituents. And it is founded in sound
policy and deep political foresight. Intrigue and cabal are thus deprived
of some of their main resources, by plotting and devising measures in
secrecy.3 The public mind is enlightened by an attentive examination of
the public measures; patriotism, and integrity, and wisdom obtain their due
reward; and votes are ascertained, not by vague conjecture, but by positive
facts. Mr. Justice Blackstone seems, indeed, to suppose, that
1 1 Black. Comm. 163, and Christian's note; Id. 167 and note. See also Rex
v. Wilkes, 2 Wilson's R. 251; Com. Dig. Parliament, G. 5. See 1 Hall's Law
Term, 459, 466.
2 Journal of the Convention, p. 219, 243, 244, 245, 354, 373.
3 1 Tucker's Black. Comm. App. 204, 205; 2 Wilson's Lect. 157, 158;
302 CONSTITUTION OF THE U. STATES. [BOOK III.
votes openly and publicly given are more liable to intrigue and
combination, than those given privately and by ballot. "This latter
method," says he, "may be serviceable to prevent intrigues and
unconstitutional combinations. But it is impossible to be practised with
us, at least in the house of commons, where every member's conduct is
subject to the future censure of his constituents, and therefore should be
openly submitted to their inspection."1
§ 839. The history of public assemblies, or of private votes,
seem to confirm the former suggestion of the learned author. Intrigue and
combination are more commonly found connected with secret sessions, than
with public debates, with the workings of the ballot box, than with the
manliness of viva voce votes. At least, it may be questioned, if the vote
by ballot has, in the opinion of a majority of the American people,
obtained any decisive preference over vica voce voting, even at elections.
The practice in New England is one way, and at the South another way. And
as to the votes of representatives and senators in congress, no man has yet
been bold enough to vindicate a secret or ballot vote, as either more safe,
or more wise, more promotive of independence in the members, or more
beneficial to their constituents. So long as known and open responsibility
is valuable as a check, or an incentive among the representatives of a free
people, so long a journal of their proceedings, and their votes, published
in the face of the world, will continue to enjoy public favour, and be
demanded by public opinion. When the people become indifferent to the acts
of their representatives, they will have ceased to take much interest in
the preservation of their liberties.
1 1 Black. Comm. 181, 182.
CH. XII.] PRIVILEGES OF CONGRESS. 303
When the journals shall excite no public interest, it will not be matter of
surprise, if the constitution itself is silently forgotten, or deliberately
§ 840. The restriction of calls of the yeas and nays to one
founded upon the necessity of preventing too frequent a recurrence to this
mode of ascertaining the votes, at the mere caprice of an individual. A
call consumes a great deal of time, and often embarrasses the just progress
of beneficial measures. It is said to have been often used to excess in the
congress under the confederation;1 and even under the present constitution
it is notoriously used, as an occasional annoyance, by a dissatisfied
minority, to retard the passage of measures, which are sanctioned by the
approbation of a strong majority. The check, therefore, is not merely
theoretical; and experience shows, that it has been resorted to, at once to
admonish, and to control members, in this abuse of the public patience and
the public indulgence.
§ 841. The next clause is, "neither house, during the session
shall, without the consent of the other, adjourn for more than three days,
nor to any other place, than that, in which the two houses shall be
sitting."2 It is observable, that the duration of each session of
congress, (subject to the constitutional termination of their official
agency,) depends solely upon their own will and pleasure, with the single
exception, as will be presently seen, of cases, in which the two houses
disagree in respect to the time of adjournment. In no other case is the
president allowed to interfere with the time and extent of their
deliberations. And thus their independence is effectually guarded
1 1 Tuck. Black. Comm. App. 205, 206.
2 See Journ. of Convention, 219, 246. See also 2 Elliot's Debates, 276, 277.
304 CONSTITUTION OF THE U. STATES. [BOOK III.
against any encroachment on the part of the executive.1 Very different is
the situation of parliament under the British constitution; for the king
may, at any time, put an end to a session by a prorogation of parliament,
or terminate the existence of parliament by a dissolution, and a call of a
new parliament. It is true, that each house has authority to adjourn
itself separately; and this is commonly done from day to day, and sometimes
for a week or a month together, as at Christmas and Easter, or upon other
particular occasions. But the adjournment of one house is not the
adjournment of the other. And it is usual, when the king signifies his
pleasure, that both, or either of the houses should adjourn themselves to a
certain day, to obey the king's pleasure, and adjourn accordingly; for
otherwise a prorogation would certainly follow.2
§ 842. Under the colonial governments, the undue exercise of
power by the royal governors constituted a great public grievance, and was
one of the numerous cases of misrule, upon which the declaration of
independence strenuously relied. It was there solemnly charged against the
king, that he had called together legislative [colonial] bodies at places,
unusual, uncomfortable, and distant from the repository of the public
records; that he had dissolved representative bodies, for opposing his
invasions of the rights of the people; and after such dissolutions, he had
refused to reassemble them for a long period of time. It was natural,
therefore, that the people of the United States should entertain a strong
jealousy on this subject, and should interpose a constitutional barrier
against any such abuse
1 Tucker's Black. Comm. App. 206, 207.
2 1 Black. Comm. 185 to 190; 2 Wilson's Law Lect. 154, 155; Com. Dig.
Parliament, L M. N. O. P.
CH. XII.] PRIVILEGES OF CONGRESS. 305
by the prerogative of the executive. The state constitutions generally
contain some provision on the same subject, as a security to the
independence of the legislature.
§ 842. These are all the powers and privileges, which are
in each house of congress by the constitution. What further powers and
privileges they incidentally possess has been a question much discussed,
and may hereafter be open, as new cases arise, to still further discussion.
It is remarkable, that no power is conferred to punish for any contempts
committed against either house; and yet it is obvious, that, unless such a
power, to some extent, exists by implication, it is utterly impossible for
either house to perform its constitutional functions. For instance, how is
either house to conduct its own deliberations, if it may not keep out, or
expel intruders? If it may not require and enforce upon strangers silence
and decorum in its presence? If it may not enable its own members to have
free ingress, egress, and regress to its own hall of legislation? And if
the power exists, by implication, to require the duty, it is wholly
nugatory, unless it draws after it the incidental authority to compel
obedience, and to punish violations of it. It has been suggested by a
learned commentator, quoting, the language of Lord Bacon,1 that, as
exception strengthens the force of a law in cases not excepted, so
enumeration weakens it in cases not enumerated; and hence he deduces the
conclusion, that, as the power to punish contempts is not among those
enumerated, as belonging to either house, it does not exist.2 Now, however
wise or correct the maxim of Lord Bacon is in a general sense,
1 Advancement of Learning; 1 Tuck. Black. App. 200, note.
2 1 Tucker's Black. 200.
306 CONSTITUTION OF THE U. STATES. [BOOK III.
as a means of interpretation, it is not the sole rule. It is no more true,
than another maxim of a directly opposite character, that where the end is
required, the means are, by implication, given. Congress are required to
exercise the powers of legislation and deliberation. The safety of the
rights of the nation require this; and yet, because it is not expressly
said, that congress shall possess the appropriate means to accomplish this
end, the means are denied, and the end may be defeated. Does not this show,
that rules of interpretation, however correct in a general sense, must
admit of many qualifications and modifications in their application to the
actual business of human life and human laws? Men do not frame
constitutions of government to suspend its vital interests, and powers, and
duties, upon metaphysical doubts, or ingenious refinements. Such
instruments must be construed reasonably, and fairly, according to the
scope of their purposes, and to give them effect and operation, not to
cripple and destroy them. They must be construed according to the common
sense applied to instruments of a like nature; and in furtherance of the
fundamental objects proposed to be attained, and according to the known
practice and incidents of bodies of a like nature.
§ 843. We may resort to the common law to aid us in
instruments, and their powers; for that law is the common rule, by which
all our legislation is interpreted. It is known, and acted upon, and
revered by the people. It furnishes principles equally for civil and
criminal justice, for public privileges, and private rights. Now, by the
common law, the power to punish contempts of this nature belongs
incidentally to courts of justice, and to each house of parliament. No man
ever doubted, or denied its existence, as to our
CH. XII.] PRIVILEGES OF CONGRESS. 307
colonial assemblies in general, whatever may have been thought, as to
particular exercises of it.1 Nor is this power to be viewed in an
unfavourable light. It is a privilege, not of the members of either house;
but, like all other privileges of congress, mainly intended as a privilege
of the people, and for their benefit.2 Mr. Justice Blackstone has, with
great force, said, that "laws, without a competent authority to secure
their administration from disobedience and contempt, would be vain and
nugatory. A power, therefore, in the supreme courts of justice to suppress
such contempts, &c., results from the first principles of judicial
establishments, and must be an inseparable attendant upon every superior
tribunal."3 And the same reasoning has been applied, with equal force, by
another learned commentator to legislative bodies. "It would," says he, "be
inconsistent with the nature of such a body to deny it the power of
protecting itself from injury, or insult. If its deliberations are not
perfectly free, its constituents are eventually injured. This power has
never been denied in any country, and is incidental to the nature of all
legislative bodies. If it possesses such a power in the case of an
immediate insult or disturbance, preventing the exercise of its ordinary
functions, it is impossible to deny it in other cases, which, although less
immediate or violent, partake of the same character, by having a tendency
to impair the firm and honest discharge of public duties."4
§ 844. This subject has of late undergone a great deal of
in England and America; and
1 4 Black. Comm. 283, 284, 285, 286; 1 Black. Comm. 164, 165; Com. Dig.
Parliament, G. 2, 5; Burdett v. Abbott, 14 East R. I; Burtett v. Colman, 14
East R. 163; S. C. 5 Dow. Parl. Cases, 165, 199.
2 Christian's note, 1 Black. Comm. 164.
3 4 Black. Comm. 286.
4 Rawle on the Constitution, ch. 4, p. 48; 1 Kent's Comm. (2d edit.) Lect.
11, p. 221, 235.
308 CONSTITUTION OF THE U. STATES. [BOOK III.
has finally received the adjudication of the highest judicial tribunals in
each country. In each country upon the fullest consideration the result
was the same, viz. that the power did exist, and that the legislative body
was the proper and exclusive forum to decide, when the contempt existed,
and when there was a breach of its privileges; and, that the power to
punish followed, as a necessary incident to the power to take cognizance of
the offence.1 The judgment of the
1 The learned reader is referred to Burdett v. Abbott, 14 East R. 1;
Barderr v. Colaman, 14 East R. 163; 8. C. 5 Dow. Parl. R. 165, 199; and
Anderson v. Dunn, 6 Wheat. R. 204. The question is also much discussed in
JefFerson's Manual, § 3, and 1 Tuck. Black. Comm. App. note, p. 200 to 205.
See also 1 Black. Comm. 164, 165. Mr. Jefferson, in his Manual, (§ 3,) in
commenting on the case of William Duane for a political libel, has summed
up the reasoning on each side with a manifest leaning against the power.
It presents the strength of the argument on that side, and, on that
account, deserves to be cited at large.
"In debating the legality of this order, it was insisted, in support of
it, that every man, by the law of nature, and every body of men, possesses
the right of self-defence; that all public functionaries are essentially
invested with the powers of self-preservation; that they have an inherent
right to do all acts necessary to keep themselves in a condition to
discharge the trusts confided to them; that whenever authorities are given,
the means of carrying them into execution are given by necessary
implication; that thus we see the British parliament exercise the right of
punishing contempts; all the state legislatures exercise the same power;
and every court does the same; that, if we have it not, we sit at the mercy
of every intruder, who may enter our doors, or gallery, and, by noise and
tumult, reader proceeding in business impracticable; that if our
tranquillity is to be perpetually disturbed by newspaper defamation, it
will not be possible to exercise our functions with the requisite coolness
and deliberation; and that we must therefore have a power to punish these
disturbers of our peace and proceedings. To this it was answered, that the
parliament and courts of England have cognizance of contempts by the
express provisions of their law; that the state legislatures have equal
authority, because their powers are plenary; they represent their
constituents completely, and possess all their powers, except such, as
their constitutions have expressly denied them; that the courts of the
several states have the same powers by the laws of their states, and those
of the federal government by the same state laws
CH. VII.] PRIVILEGES OF CONGRESS. 309
Supreme Court of the United States, in the case alluded to, contains so
elaborate and exact a consideration of the whole argument on each side,
that it wilt be far more satisfactory to give it in a note, as it stands in
the printed opinion, than to hazard, by any abridgment, impairing the just
force of the reasoning.1
adopted in each state, by a law of congress; that none of these bodies,
therefore, derive those powers from natural or necessary right, but from
express law; that congress have no such natural or necessary power, or any
powers, but such as are given them by the constitution; that that has given
them, directly, exemption from personal arrest, exemption from question
elsewhere, for what is said in their house, and power over their own