for an attempt to corrupt a member;1 in 1796, in the case of a challenge given to a member, which was held a breach deliberative assemblies of the Union may assume and exercise on the principle of selfpreservation ?

"Analogy and the nature of the case furnish the anwer, the least possible power adequate to the end proposed;' which is the power of imprisonment. It may, at first view, and from the history of the practice of our legislative bodies, be thought to extend to other inflictions. But every other will be found to be mere commutation for confinement; since commitment alone is the alternative, where the individual proves contumacious. And even to the duration of imprisonment a period is imposed by the nature of things; since the existence of the power that imprisons is indispensable to its continuance; and although the legislative power continues perpetual, the legislativo body ceases to exist on the moment of its adjournment or periodical dissolution. It follows that imprisonment must terminate with that adjournment.

"This view of the subject necessarily sets bounds to the exercise of a caprice, which has sometimes disgraced deliberative assemblies, when under the influence of strong passions or wicked leaders, but the instances of which have long since remained on record only as historical facts, not as precedents for imitation. In the present fixed and settled state of English institutions, there is no more danger of their being revived, probably, than in our own.

"But the American legislative bodies have never possessed, or pretended to, the omnipotence which constitutes the leading feature in the legislative assembly of Great Britain, and which may have led occasionally to the exercise of caprice, under the specious appearance of merited resentment.

"If it be inquired what security is there, that with an officer avowing himself devoted to their will, the House of Representatives will confine its punishing power to the limits of imprisonment, and not push it to the infliction of corporeal punishment, or even death, and exercise it in cases affecting the liberty of speech and of the press; the reply is to be found in the consideration, that the Constitution was formed in and for an advanced state of society, and rests at every point on received opinions and fixed ideas. It is not a new creation, but a combination of existing materials, whose properties and attributes were familiarly understood, and had been determined by reiterated experiments. It is not, therefore, reasoning upon things as they are, to suppose that any deliberative assembly constituted under it would ever assert any other rights and powers than those which had been established by long practice, and conceded by public opinion. Melancholy, also, would be that state of distrust which rests not a hope upon a moral influence. The most absolute tyranny could not subsist where men could not be trusted with power, because they might abuse it, much less a government, which has no other basis than the sound morals, moderation, and the good sense of those who compose it. Unreasonable jealousies not only blight the pleasures, but dissolve the very texture of society.

"But it is argued that the inference, if any, arising under the Constitution, is against the exercise of the powers here asserted by the House of Representatives; that the express grant of powers to punish their members respectively, and to expel them, by the application of a familiar maxim, raises an implication against the power to punish any other than their own members.

"This argument proves too much; for its direct application would lead to the annihilation of almost every power of Congress. To enforce its laws upon any subject,

1 1 Tucker's Black. Comm. App. 200 to 205, note; Jefferson's Manual, § 3.

of privilege;1(a) and in May, 1832, in the case of Samuel Houston, for an assault upon a member for words spoken in his place, and afterwards printed, reflecting on the character of Houston.2 In the former case, the House punished the offence by imprisonment; in the latter, by a reprimand by the speaker. without the sanction of punishment, is obviously impossible. Yet there is an express grant of power to punish in one class of cases and one only; and all the punishing power exercised by Congress in any cases, except those which relate to piracy and offences against the laws of nations, is derived from implication. Nor did the idea ever occur to any one that the express grant, in one class of cases, repelled the assumption of the punishing power in any other.

"The truth is, that the exercise of the powers given over their own members was of such a delicate nature that a constitutional provision became necessary to assert or communicate it. Constituted, as that body is, of the delegates of confederated States, some such provision was necessary to guard against their mutual jealousy, since every proceeding against a representative would indirectly affect the honor or interests of the State which sent him.

"In reply to the suggestion that, on this same foundation of necessity might be raised a superstructure of implied powers in the executive, and every other department, and even ministerial officer of the government, it would be sufficient to observe, that neither analogy nor precedent would support the assertion of such powers in any other than a legislative or judicial body. Even corruption anywhere else would not contaminate the source of political life. In the retirement of the cabinet, it is not expected that the executive can be approached by indignity or insult; nor can it ever be necessary to the executive, or any other department, to hold a public deliberative assembly. These are not arguments; they are visions, which mar the enjoyment of actual blessings, with the attack or feint of the harpies of imagination.

"As to the minor points made in this case, it is only necessary to observe that there is nothing on the face of this record from which it can appear on what evidence this warrant was issued. And we are not to presume that the House of Representatives would have issued it without duly establishing the fact charged on the individual. And, as to the distance to which the process might reach, it is very clear that there exists no reason for confining its operation to the limits of the District of Columbia. After passing those limits, we know no bounds that can be prescribed to its range but those of the United States. And why should it be restricted to other boundaries? Such are the limits of the legislating powers of that body; and the inhabitant of Louisiana or Maine may as probably charge them with bribery and corruption or attempt by letter to induce the commission of either, as the inhabitant of any other section of the Union. If the inconvenience be urged, the reply is obvious; there is no difficulty in observing that respectful deportment which will render all apprehensions chimerical.” See also Rex v. Brass Crosby, 3 Wilson, R. 188. In the convention a proposition was made and referred to the select committee appointed to draft the Constitution giving authority to punish for contempts, and enumerating them. The committee made no report on the subject. Journ. of Convention, 20th Aug. 263, 264.

1 Jefferson's Manual, § 3.

2 See the Speeches of Mr. Doddridge and Mr. Burges on this occasion.

(a) The case was that of James Gunn. See Annals of Congress, 1st Sess. 4th Cong. p. 786.

So, in 1800, in the case of William Duane, for a printed libel against the Senate, the party was held guilty of a contempt and punished by imprisonment.1 (a) Nor is there anything peculiar in the claim under the Constitution of the United States. The same power has been claimed and exercised repeatedly under the State governments, independent of any special constitutional provision, upon the broad ground stated by Mr. Chief Justice Shippen, that the members of the legislature are legally and inherently possessed of all such privileges as are necessary to enable them, with freedom and safety, to execute the great trust reposed in them by the body of the people who elected them.2(b)

§ 849. The power to punish for contempts, thus asserted both in England and America, is confined to punishment during the session of the legislative body, and cannot be extended beyond it. It seems that the power of Congress to punish cannot, in its utmost extent, proceed beyond imprisonment; and then it terminates with the adjournment or dissolution of that body.* Whether a fine may not be imposed has been recently made a question in a case of contempt before the House of Lords; upon which occasion Lord Chancellor Brougham expressed himself in the negative, and the other law lords, Eldon and Tenterden, in the affirmative; but the point was not then solemnly decided." It had, however, been previously affirmed by the House of Lords, in the case of Rex v. Flower (8 T. R. 314), in case of a libel upon one of the bishops. Lord Kenyon then said, that in ascer

1 Journ. of Senate, 27th March, 1800; Jefferson's Manual, § 3. See also Burdett v. Abbott, 14 East, 1.

2 Bolton v. Martin, 1 Dall. R. 286. See also House of Delegates in 1784, the case of John Warden, 1 Elliot's Debates, 69; Coffin v. Coffin, 4 Mass. R. 1, 34, 35.

8 Dunn v. Anderson, 6 Wheat. R. 204, 230, 231.

4 Dunn v. Anderson, 6 Wheat. R. 204, 230, 231; 1 Kent's Comm. Lect, 11, p. 221. 6 In 1831.

6 See a learned article on this subject in the English Law Magazine for July, 1831, p. 1. etc. Parliamentary Debates, 1831.

(a) In a case decided in November, 1872, the Supreme Court of Illinois punished as for contempt the publisher of a daily paper in whose columns had appeared an article reflecting severely upon the

court.

(b) See also the recent cases of Hiss v.

Bartlett, 3 Gray, 468; Burnham v. Morrissey, 14 Gray, 226; State v. Mathews, 37 N. H. 450. The courts cannot inquire into the justice or propriety of a legisla tive punishment in the expulsion of a member for misconduct. Hiss v. Bartlett, supra.

taining and punishing for a contempt of its privileges, the House acted in a judicial capacity.1 (a)

§ 850. The sixth section of the first article contains an enumeration of the rights, privileges, and disabilities of the members of each house in their personal and individual characters, as contradistinguished from the rights, privileges, and disabilities of the body of which they are members. It may here again be remarked, that these rights and privileges are in truth the rights and privileges of their constituents, and for their benefit and security, rather than the rights and privileges of the member for his own benefit and security.2 (6) In like manner, the disabilities imposed are founded upon the same comprehensive policy, to guard the powers of the representative from abuse, and to secure a wise, impartial, and uncorrupt administration of his duties.

§ 851. The first clause is as follows: "The senators and representatives shall 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, and breach of the peace, be privileged from arrest during their attendance at the session of their 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." § 852. In respect to compensation, there is at present a marked distinction between the members of the British Parliament and the members of Congress, the former not being at present entitled to any pay. Formerly, indeed, the members of the House of Commons were entitled to receive wages from their constituents; but the last known case is that of Andrew Marvell, who was a member from Hull, in the first Parliament after the restoration of Charles the Second. Four shillings sterling a day used to be allowed for a knight of the shire, and two shillings a

1 In Yates v. Lansing, 9 Johns. R. 417, Mr. Justice Platt said, that “the right of punishing for contempts by summary conviction is inherent in all courts of justice and legislative assemblies, and is essential to their protection and existence. It is a branch of the common law adopted and sanctioned by our State constitution. The decision involved in this power is in a great measure arbitrary and undefinable; and yet the experience of ages has demonstrated, that it is perfectly compatible with civil liberty, and auxiliary to the purest ends of justice."

2 Com. Dig. Parliament, D. 17.

(a) See also Hiss v. Bartlett, 3 Gray, 468.

(b) Coffin v. Coffin, 4 Mass. 27.

day for a member of a city or borough; and this rate was established in the reign of Edward the Third. And we are told that two shillings a day, the allowance to a burgess, was so considerable a sum in these ancient times, that there are many instances where boroughs petitioned to be excused from sending members to Parliament, representing that they were engaged in building bridges or other public works, and therefore unable to bear so extraordinary an expense. It is believed that the practice in America during its colonial state was, if not universally, at least generally, to allow a compensation to bo paid to members; and the practice is believed to be absolutely universal under the State constitutions. The members are not, however, always paid out of the public treasury; but the practice still exists, constitutionally or by usage, in some of the States to charge the amount of the compensation fixed by the legislature upon the constituents, and levy it in the State tax. That has certainly been the general course in the State of Massachusetts, and it was probably adopted from the ancient practice in England.

§ 853. Whether it is, on the whole, best to allow to members of legislative bodies a compensation for their services, or whether their service should be considered merely honorary, is a question admitting of much argument on each side; and it has accordingly found strenuous advocates and opponents, not only in speculation but in practice. It has been already seen, that in England, none is now allowed or claimed, and there can be little doubt that public opinion is altogether in favor of their present course. On the other hand, in America an opposite opinion prevails among those whose influence is most impressive with the people on such subjects. It is not surprising that, under such circumstances, there should have been a considerable diversity of opinion manifested in the convention itself. The proposition to allow compensation out of the public treasury to members of the House of Representatives was originally carried by a vote of eight States against three; and to the senators by a vote of seven States against three, one being divided. At a subsequent period, a motion to strike out the payment out of the public treasury was lost by a vote of four States in the affirmative and

11 Black. Comm. 174, and Christian's Note, 34; Id. Prynne on 4 Inst. 32; Com. Dig. Parliament, D. 16.

2 Journal of Convention, 67, 116, 117.

8 Id. 119.