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

(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.2 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 con

1 In the case of Frank B. Sanborn, arrested upon the warrant of the Vice-President of the United States and President of the Senate, for an alleged contempt in refusing to obey the summons of a Committee of Investigation of the Senate, and brought up on a writ of habeas corpus, before the Supreme Judicial Court of Massachusetts, the hearing was had before Shaw, Ch. J. assisted by Metcalf, Bigelow, Merrick, and Hoar, Associate Justices, and the opinion was delivered by Shaw, Ch. J. Many points were raised upon the hearing which the court declined to consider, but simply decided that the sergeant-at-arms had no authority to arrest by deputy, and the writ was allowed on that ground. See The Monthly Law Reporter (Boston) for May 1860, where the case, with the arguments of counsel, is reported at length.

2 But contra, see Keilly v. Carson, 4 Moore's Privy Council R. 63, and Fenton v. Hampton, 11 Id. 347. In the latter case, the plaintiff was summoned to appear before an Investigating Committee of the Legislative Council of Van Dieman's Land. He did not attend, and was then ordered before the bar of the Council, but refused to obey. By vote of the Council he was arrested, upon a warrant issued by the Speaker, and committed. He then brought an action of trespass against the Speaker and Sergeant-at-arms and the Court sustained the same. Fleming, Ch. J. of the island, delivered a learned and exhaustive opinion in which he held that the right of committing a witness for contempt, for not appearing before an investigating committee was not inherent to a legislature created by a written charter: that the power of the Parliament of Great Britain for this purpose, is its own peculiar, traditional custom, established by long prescription: that it does not find its origin in the bare fact that the houses of Parliament are legislative bodies, and that it is not an inherent and incidental power pertaining to them simply because they are such. He also added, that such a power, though it might sometimes be convenient and expedient, was never necessary for the purposes of legislation. On an appeal, the decision was affirmed by the Privy Council, several eminent judges sitting in the case.

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. (a) 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. (b)

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Powers of

The powers of Congress extend generally to all subjects of a national nature. Many of those powers will Congress. 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 grants, they are authorized to lay and collect taxes, du- *237 ties, 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.

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sidered 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 the United States. See infra, vol. ii. 24.1

(a) Art. 1, sec. 7.

(b) Art. 1, sec. 5.

1 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.

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 substanproceeding. tially the same; and though they are essential to the transaction of business with order and safety, they are too

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minute to be treated at length in an elementary survey 238 of the constitutional polity and general jurisprudence of the United States. The House of Representatives choose their own Speaker, but the Vice-President of the United States is, ex officio, President of the Senate, and gives the casting vote when they are equally divided. The proceedings and discussions in the two houses are public. This affords the community early and authentic information of the progress, reason, and policy of measures pending before Congress, and it is likewise a powerful stimulus to industry, to research, and to the cultivation of talent and eloquence in debate. Though these advantages may be acquired at the expense of much useless and protracted discussion, yet the balance of utility is

greatly in favor of open deliberation; and it is certain, from the general opposition to the experiment that was made and continued for some years by the Senate of the United States, of sitting with closed doors, that such a practice, by any legislative body in this country, would not be endured.

passing

The ordinary mode of passing laws is briefly as fol- Mode of lows: (a) One day's notice of a motion for leave to laws.

(a) See the standing rules and orders of the House of Representatives, printed in 1795, by Francis Childs. The rules and forms of proceeding in legislative bodies are not only essential to orderly and free discussion and deliberation, but those forms become substance; for they operate as safeguards of liberty, and a protection to the minority against the violence and tyranny of the majority. It was an observation of Mr. Onslow, for many years Speaker of the English House of Commons, that he had often heard old and experienced members say, that nothing tended more to throw power into the hands of the administration, than a neglect of or departure from the rules of proceeding. Hatsel's Precedents of Proceedings in the House of Commons, and Jefferson's Manual of Parliamentary Practice, and especially May's Treatise upon the Law, Privileges, Proceedings, and Usage of Parliament, London, 1844, and Cushing's Rules of Proceeding and Debate in Deliberative Assemblies, Boston, 1845, ought to be thoroughly studied by all leading and efficient members in the legislative assemblies.

Among the rules of the House of Representatives, the establishment of what is termed the previous question, is of great importance. It is understood not to apply when a bill or motion is under discussion in a committee of the whole House, but only when the same is before the House, with the Speaker in the chair. The previous question is admitted when demanded by a majority of the members present; and it enables a majority at any time to put an end in the House to all discussion, and to put the minority to silence by a prompt and final vote on the main question. It is whether the question under debate shall now be put; and, until it is decided, it precludes all amendment and debate of the main question, and all motions to amend, commit, or postpone the main question. If the previous question be decided affirmatively, the main question is to be put instantaneously, and no member is allowed to amend or discuss it. The previous question has long been in use in the English House of Commons; and if it be carried in the affirmative, no alteration can then take place, no debate is suffered to intervene, and the Speaker puts the main question immediately. Dwarris on Statutes, 1830, p. 291. During the period of the Continental Congress, under the articles of confederation, the previous question was regarded rather as a preliminary inquiry into the propriety of the main question. This was also the case under the present constitution of the United States, for many years. Its object was to avoid decision on delicate questions, as inexpedient; and if it was decided that the main question be put, the main question was open to debate. It was not until 1811 that the previous question attained its present absolute sway. The Hon. William Gaston, a member of the House of Representatives from North Carolina, in 1816, made a fruitless effort to expunge the previous question from the rules of the House. His speech was a very able and well-informed discussion of the merits of the rule, and he regarded it as a formidable instrument of tyranny of majorities over minori

bring in a bill, in cases of a general nature, is required. Every bill must have three readings previous to its being passed, and these readings must be on different days, and no bill can be committed or amended until it has been twice read. Such little checks in the forms of doing business are prudently intended to guard against surprise or imposition. In the House of Repre

sentatives, bills, after being twice read, are committed to *239 a committee of the whole House, when the * Speaker leaves the chair, and takes a part in the debate as an ordinary member, and a chairman is appointed to preside in his stead. When a bill has passed one house, it is transmitted to the other, and goes through a similar, form; though, in the Senate, there is less formality, and bills are often committed to a select committee, chosen by ballot. If a bill be altered or amended in the house to which it is transmitted, it is then returned to the house in which it originated, and if the two houses cannot agree, they appoint committees to confer together on the subject. (a) When a bill is engrossed, and has passed the sanction of both houses, it is transmitted to the President of the United States for his approbation. If he approves of the President's bill, he signs it. If he does not, it is returned, with his negative. objections, to the house in which it originated, and that house enters the objections at large on its journal, and proceeds to reconsider the bill. If, after such reconsideration, two thirds of that house should agree to pass the bill, it is sent,

ties, and, to the extent to which it is carried, without a precedent in the annals of any free deliberative assembly.

Legislation was a science cultivated with so much care and refinement among the ancient Romans, that they had laws to instruct them how to make laws. The Lex Licinia and Lex Ebutia, the Lex Cæcilia and Lex Didia, provided checks, that the law should not unintentionally contain any particular personal privileges, or weaken the force of former laws, or be crowded with multifarious matter. Gravina, De Ortu et Progressu Juris Civilis, lib. 1, c. 29.

(a) By the Revised Constitution of New York, of 1846, it is declared that no bill shall be passed unless by the assent of a majority of all the members elected to each branch of the legislature; and the question upon the final passage shall be taken immediately upon its last reading, and the yeas and nays entered on the journal.1

1 By the Revised Statutes of New York, previous notice of certain applications to the legislature must be given by advertisement. 1 R. S. 155, sec. 1. The want of this notice will not, however, affect the validity of an act. Smith v. Helmer, 7 Barb. S. C. R. 416.

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