CHAPTER XII.

PRIVILEGES AND POWERS OF BOTH HOUSES OF CONGRESS.

§ 837. THE next clause is, "each house may determine the rules of its proceedings, punish its members for disorderly behavior, 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 behavior 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 clamor, 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 an expulsion. 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 general authority to expel exists in the British house of commons, and in the legislative bodies of many of the States composing the Union.

§ 838. What must be the disorderly behavior which the house may punish, and what punishment, other than expulsion, may be

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.

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 misbehavior 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.1 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 misdemeanor, 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 statutable offence, nor was it committed in his official character; nor was it committed during the session of Congress, nor at the seat of government. Yet, by an almost unanimous vote 2 he was expelled from that body; and he was afterwards impeached (as has been already stated) for this, among other charges. It seems, therefore, to be settled by the Senate, upon full deliberation, that expulsion may be for any misdemeanor 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 constitutional majority of two thirds of the members of the Senate. 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 misdemeanor not done in the presence or view of the body; but most probably it was decided upon some doubt as to the facts. It may be thought difficult to 1 Rawle on the Constitution, ch. 4. p. 47. 3 See Journal of Senate, July, 1797; Sergeant's Const. Law, ch. 28, p. 286; 1 Hall's Law Journ. 459, 471. [March 1, 1861, the Senate expelled a member for alleged treasonable correspondence with the enemy.]

4 Yeas 19, nays 10.

2 Yeas 25,

nay

1.

5 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. [Also the proceedings in Houston's case, Benton's Abridgment of Debates, Vol. 2, p. 658.]

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 where the offence is such as, in the judgment of the house, unfits him for parliamentary duties.1

§ 839. 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." 2

§ 840. 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 a 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 fifth, and insert in its stead "if every member present," was finally adopted by a unanimous vote.

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. [See Cushing, Law and Practice of Legislative Assemblies, § 84, 192. Recently a member was expelled for having received money from those he had recommended to the President for appointments to office.]

2 [This clause was much relied upon when, in 1837, a resolution to expunge from the journal of the Senate a previous resolution of censure upon President Jackson was under discussion. Mr. Webster, among others, strongly insisted that the action proposed would be a manifest violation of this instrument. Webster's Works, IV. 292. And see Clay's Works, VI. 45. The opposite view was forcibly presented by Mr. Benton. Thirty Years in the Senate, I. 717. For some notice of the final debate, see Ibid. 727. And for a more complete abridgment of it, see Benton's Abridgment of Debates, Vol. 13. A similar instance of an expunging resolution occurs in the history of Massachusetts. In 1813 a vote of thanks to Captain Lawrence for the capture of the Peacock coming up in the State senate, Mr. Josiah Quincy offered his celebrated resolution, which was adopted: "Resolved, That in a war like the present, waged without justi fiable cause, and prosecuted in a manner indicating that conquest and ambition are its real motives, it is not becoming a moral and religious people to express any approbation of military and naval exploits not immediately connected with the defence of our seacoast and soil." In 1824, when the opposing party had obtained control of the State, this resolution, by a party vote, was ordered to be erased from the journal of the senate. Life of Josiah Quincy, 324. Other precedents will be found referred to in the Congressional Debates in 1837. See that in Wilkes's Case, 7 Mahon's England, 163.]

* Journal of the Convention, p. 219, 243, 244, 245, 354, 373.

The object of the whole clause is to insure 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.1 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 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." 2

§ 841. 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 viva voce voting, even at elections. The practice in New England is one way, and in some of the States in the South and West 3 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

1 1 Tucker's Black. Comm. App. 204, 205; 2 Wilson's Lect. 157, 158. 21 Black. Comm. 181, 182.

3 [Voting by ballot is now nearly universal in the United States, except in legislative bodies, and its introduction into England was effected in 1872. See New American Cyclopædia, ed. 1872, art. “Ballot." The frauds practised under this system, however, have been very great and dangerous, and have led to stringent registration laws; but even these in some cases have seemed to facilitate fraud rather than prevent it. The whole subject is beset with difficulties, and no one as yet has succeeded in devising such checks as shall invariably secure a free expression of the will of the electors, and a truthful declaration of the result.]

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 favor 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. 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.

§ 842. 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, 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 ap‐ probation 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.

§ 843. 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 against any encroachment on the part of the executive. 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

1 1 Tuck. Black. Comm. App. 205, 206.

2 See Journ. of Convention, 219, 246. See also 2 Elliot's Debates, 276, 277. 31 Tucker's Black. Comm. App. 206, 207.