fection of the constitution of the English House of Commons, if it were to be tested by the arithmetical accuracy of our own political standards, nevertheless, in all periods of English history, it felt strongly the vigor of the popular principle. While on the continent of Europe the degeneracy of the feudal system, the influence of the papal hierarchy, the political maxims of the imperial or civil law, and the force of standing armies, extinguished the bold and irregular freedom of the Gothic governments, and abolished the representation of the people, the English House of Commons continued to be the asylum of European liberty; and it maintained its station against all the violence of the Plantagenet line of princes, the haughty race of the Tudors, and the unceasing spirit of despotism in the house of Stuart. And when we take into consideration the admirable plan of their judicial polity, and those two distinguished guardians of civil liberty, trial by jury, and the freedom of the press, it is no longer a matter of astonishment that the nation, in full possession of those inestimable blessings, should enjoy greater security of person and property than ever was enjoyed in Athens or Sparta, Carthage or Rome, or in any of the commonwealths of Italy, during the period of the middle ages.

I proceed next to consider the privileges and powers of the two houses of congress, both aggregately and separately. The congress is to assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they by law appoint a different day. (a)

and burgesses must occupy, as owner or tenant, a house or building, either separately or jointly, with land within the borough, of the clear yearly value of £10, and rated to the poor-rate, and been duly registered, and a resident for six months previous to the last day of July in each year. The regulations respecting the registry and the revision of the lists, are specific and minute, to guard more effectually against the destructive evil of fraudulent and spurious votes. No person is entitled to vote unless his name appears on the register of electors, and his qualifications cannot be questioned, at the polls, except on three points: (1) His identity with the person registered; (2) as to having voted already at the election; (3) that he continues to possess the registered qualification.1

(a) Art. 1, sec. 4.

1 See Statute 6 Vic. c. 18, § 80-83.

Privileges

*235 of the two houses of congress.

*Each house is made the sole judge of the election return and qualifications of its members. (a) The same power is vested in the British House of Commons, and in the legislatures of the several states; and there is no other body known to the constitution, to which such a power might safely be trusted. It is requisite to preserve a pure and genuine representation, and to control the evils of irregular, corrupt, and tumultuous elections; and as each house acts in these cases in a judicial character, its decisions, like the decisions of any other court of justice, ought to be regulated by known principles of law, and strictly adhered to, for the sake of uniformity and certainty. A majority of each house constitutes a quorum to do business, but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each house may provide. (b) Each house, likewise, determines the rules of its 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,

(a) Art. 1, sec. 5.

(b) In the English House of Commons forty members are requisite to form a quorum for business; but in 1833 the requisite number was reduced to twenty, so 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, p. 80.

(d) Art. 1, sec. 5.

(e) Art. 1, sec. 5.

except in cases of treason, felony, and breach of the peace. (a) 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. (b)

There is no power expressly given to either house of con

gress to punish for contempts, except when committed 236 by their own members; but in the case of Anderson, 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. (c) 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

(a) 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. pp. 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. (b) Art. 1, sec. 6. The question whether a senator or member of the house of representatives was liable to impeachment for conduct in his legislative capacity, is considered by Mr. Justice Story, in his Commentaries, vol. ii. 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 impeachment 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 Eq. N. P. Cases, 228, 1 M. & S. 278.

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

imprisons. The imprisonment will terminate with the adjournment or dissolution of congress. (a)

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. (b) 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. (c)

The powers of congress extend generally to all sub- Powers of jects of a national nature. Many of those powers will congress.

(a) The duration of imprisonment for contempts terminates also in England upon the close of the existing session of parliament. Stockdale v. Hanford, cited in May's Treatise on the Privileges of Parliament, p. 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. Rep. 188. Lord Ellenborough, in Burdett v. Abbott, 14 East's Rep. 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's Commentaries, vol. ii. 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 Parliament, p. 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 United States. See infra, vol. ii. 24.1

(b) Art. 1, sec. 7.

(c) Art. 1, sec. 8.

See the case of Howard v. Gosset, 10 Ad. & Ell. N. S. 359. In this case the powers and privileges of parliament were very elaborately and ably discussed; but the Court of Exchequer Chamber, in the final decision, placed itself on the narrow ground that the speaker's warrant must be construed as process of a superior court, not appearing to go beyond its jurisdiction.

hereafter become the subject of particular observation and criticism. At present 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 * 237 grants, they are authorized to lay and collect taxes, duties, 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 confederation, 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.

Rules of The rules of proceeding in each house are substan. proceeding. tially the same; and though they are essential to the transaction of business with order and safety, they are too