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manner, and under such penalties, as each House may provide.” § 136
These powers are common to all the legislative bodies of the States; and, indeed, to those of other free governments. They seem indispensable to the due independence and efficiency of the body. The power to ,udge of the elections, returns, and qualifications, of the members of each House, must be lodged somewhere ; for otherwise, any intruder, or usurper, might assume to be a member. It can be safely lodged in no other body, but that, in which the party claims a seat; for otherwise, its independence, its purity, and even its existence, might be under the control of a foreign authority. It is equally important, that a proper quorum for the despatch of business should be fixed, otherwise a cunning, or industrious, minority might, by stratagem, usurp the functions of the majority, and pass laws at their pleasure. On the other hand, if a smaller number were not authorized to adjourn from day to day, or to compel the attendance of other members, all legislation might be suspended at the pleas ure of the absentees, and the Legislature itself be virtually dissolved. $ 137. The next clause is,_" Each House
determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member." These powers, also, are usually granted to legislative bodies. If they did not exist, it would be utterly impracticable to transact the business of the nation at all, or at least, to transact it with decency, deliberation, and order. Without rules, no public body can suitably perform its functions.
If rules are made, they are mere nullities, unless the persons on whom they are to operate, can be compelled to obey them. But, if an unlimited power to punish, even to the extent of expulsion, existed, it might, in factious times, be applied by a domineering majority, to get rid of the most intelligent, virtuous, and efficient of their opponents. There is, therefore, a check interposed, which requires a concurrence of two thirds to expel ; and this number can hardly be presumed to concur in exercising the power of ex
pulsion, except in cases of flagrant breaches of the right of the House.
§ 138. The next clause's,—~ Each House shall keep a journal of its proceedings, and from time to time publish the same, except such parts as may, in their judgement, require secrecy. And the
of the members of either House, on any question, shall, at the desire of one fifth of those present, be entered on the journal.” Each of these provisions has the same object, to insure publicity and responsibility in all the proceedings of Congress, so that the public mind may be enlightened, as to the acts of the members. But cases may exist, where secrecy may be indispensable to the complete operation of the intended acts, either at home or abroad. And, on the other hand, an unlimited power to call the
nays on every question, at the mere will of a single member, would interrupt and retard, and, in many cases, wholly defeat, the public business. In each case, the refore, a reasonable limitation is interposed.
§ 139. 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.” Here, again, the object of the clause is manifest, to prevent either House from suspending, at its pleasure, the regular course of legislation, and even of carrying the power to the extent of a dissolution of the session. The duration of the sessions of Congress, subject only to the constitutional expiration of the term of office of the members, thus depends upon their own pleasure, with the single exception (as we shall hereafter see) of the case, where the two Houses disagree, in respect to the time of adjournment, when it is given to the President. So that their independence is effectually guarded against any encroachment on the part of the Executive. In England, the King may prorogue or dissolve Parliament at his pleasure ; and, before the Revolution, the same power was generally exercised by the Governors in most of the Amer. ican Colonies.
6 140. These are all the powers and privileges ex
pressly enumerated, as belonging to the two Houses But other incidental powers may well be presumed to exist. Among these, the power to punish contempts, committed against either House by strangers, has been generally admitted, and insisted upon in practice, as indispensable to the freedom, the deliberative functions, and the personal safety of the members.
§ 141. The sixth section of the first article contains an enumeration of the personal rights, privileges, and disabilities of the members, as contradistinguished from those of the Houses, of which they are members. The first clause is,—" The Senators and Representatives shal receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. They shall, in all cases, except treason, felony, or breach of the peace, be privileged from arrest, during their attendance at the session of the respective Houses, and in going to, and returning from, the same. And for any speech or debate in either House, they shall not be questioned in any other place.”
$ 142. First, Compensation. It has been greatly questioned, whether, on the whole, it is best to allow compensation to members of Congress, or not. On the one hand, it has been said, that it tempts unworthy and avaricious men to intrigue for office, and to defeat candidates of higher talents and virtues. On the other hand, it has been said, that unless compensation be allowed, merit of the highest order may be excluded by poverty from the national councils ; and in a republican government nothing can be more impolitic than to give to wealth superior encouragement, and facility in obtaining office. The latter reasoning had its due force, and prevailed in the Convention and with the people. § 143. Next, the privilege from arrest.
This is given in all cases, (except of crimes,) in going to, attending upon, and returning from, any session of Congress. It would be a great mistake to consider it, as in reality a personal privilege, for the benefit of the member. It is rather a privilege for the benefit of his constituents, that they may not be deprived of the presence services, and influence of their own Representative in the nationa) councils. It might otherwise happen, that he might be arrested from mere malice, or from political persecution, or upon some unfounded claim, and thus they might be deprived of his aid and talents during the whole session
$ 144. Thirdly, the liberty of speech and debate. This, too, is less to be regarded as a personal privilege, than as a public right, to secure independence, firmness, and fearlessness on the part of the members, so that, in discharging their high trusts, they may not be overawed by wealth, or power, or dread of prosecution. The same privilege is enjoyed in the British Parliament, and also in the several State Legislatures of the Union, founded upon the same reasoning.
$ 145. The next clause regards the disqualifications of members of Congress. “ No Senator or Representative shall, during the time for which he is elected, be appointed to any civil office, under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time. And no person, holding any office under the United States, shall be a member of either House of Congress during his continuance in office.” The object of these provisions is sufficiently manifest. It is, to se cure the Legislature against undue influence, and indirect corruption, on the part of the Executive. Whether much reliance can be placed upon guards of this disqualiying nature, has been greatly doubted. It is not easy, by any constitutional or legislative enactments, to shut out all, or even many, of the avenues of undue or corrupt influence upon the human mind. The great securities for society—those, on which it must for ever rest in a free government—are, responsibility to the people through elections, and personal character, and purity of principle. Where these are wanting, there never can be any solia confidence, or any deep sense of duty. Where these exist, they become a sufficient guarantee against all sinister influ erices, as well as all gross offences. It has been remarked with equal profoundness and sagacity, that, as there is a degree of depravity in mankind, which reqı res a certain
degree of circumspection and distrust; so there are other qualities in human nature, which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher form, than any other. It might well be deemed harsh to disqualify an individual from any office, clearly required by the exigencies of the country, simply because he had done his duty. And, on the other hand, the disqualification might operate upon many persons, who might find their way into the national councils, as a strong inducement to postpone the creation of necessary offices, lest they should become victims of their high discharge of duty. The chances of receiving an appointment to a new office are not so many, or so enticing, as to bewilder many minds ; and if they are, the aberrations from duty are so easily traced, that they rarely, if ever, escape the public reproaches. And if influence is to be exerted by the Executive, for improper purposes, it will be quite as easy, and in its operation less seen, and less suspected, to give the stipulated patronage in another form, either of office, or of profitable employment, already existing.
$ 146. The other part of the clause, which disqualifies persons, holding any office under the United States, from being members of either House, during their continuance in office, has been still more universally applauded ; and has been vindicated upon the highest grounds of public policy. It is doubtless founded in a deference to State jealousy, and a sincere desire to obviate the fears, real or imaginary, that the General Government would obtain an undue preference over the State governments. It has also the strong recommendation, that it prevents any undue influence from office, either upon the party himself, or those, with whom he is associated in legislative deliberations. The universal exclusion of all persons holding office, is (it must be admitted) attended with some inconveniences. The Heads of the Departments are, in fact, thus precluded from proposing, or vindicating their own measures in the face of the nation in the course of debate; and are compelled to submit them to other men, who are either imperfectly acquainted with the measures, or are