298 CONSTITUTION OF THE U. STATES. [BOOK III. CHAPTER XII. PRIVILEGES AND POWERS OF BOTH HOUSES OF CONGRESS

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 may punish, 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.

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    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, p. 287, 288.
    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,

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    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 parliamentary duties.1

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 convention 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

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    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, does not 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.

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    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 violated.

840. The restriction of calls of the yeas and nays to one fifth is 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 of congress, 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

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    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 the same 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

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    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 expressly vested 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,

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    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 interpreting such 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 discussion both in England and America; and

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    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

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    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

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    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 memconstitution
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