and that they were, in many instances, a shelter and protection to the minority, against the attempts of power." So far the maxim is certainly true, and is founded in good sense, that as it is always in the power of the majority, by their numbers, to stop any improper measures proposed on the part of their opponents, the only weapons by which the minority can defend themselves against similar attempts from those in power, are the forms and rules of proceeding, which have been adopted as they were found necessary from time to time, and are become the law of the house; by a strict adherence to which, the can be no question that the Parliamentary rules are the best known to us for managing the debates, and obtaining the sense of a deliberative body. I have therefore made them my rule of decision, rejecting those of the old Congress altogether, and it gives entire satisfaction to the Senate; insomuch that we shall not only have a good system there, but probably, by the example of its effects, produce a conformity in the other branch. But in the course of this business I find perplexities, having for twenty years been out of deliberative bodies, and become rusty as to many points of proceeding; and so little has the Parliamentary branch of the law been attended to, that I not only find no person here, but not even a book to aid me. I had, at an early period of life, read a good deal on the subject, and common-placed what I read. This common-place has been my pillar; but there are many questions of practice on which that is silent, some of them are so minute indeed, and belong too much to every-day's practice, that they have never been thought worthy of being written down, yet from desuetude they have slipped my memory. You will see by the enclosed paper what they are. I know with what pain you write: therefore I have left a margin in which you can write a simple negative or affirmative opposite every position, or perhaps, with as little trouble, correct the text by striking out or interlining. This is what I have earnestly to solicit from you, and I would not have given you the trouble if I had had any other resource. But you are, in fact, the only spark of Parliamentary science now remaining to us. I am the more anxious, because I have been forming a manual of Parliamentary law which I mean to deposit with the Senate as the standard by which I judge, and am willing to be judged. Though I should be opposed to its being printed, yet it may be done perhaps without my consent; and in that case I should be sorry indeed should it go out with errors that a Tyro should not have committed. And yet it is precisely those to which I am most exposed. I am less afraid as to important matters, because for them I have printed authorities; but it is those small matters of daily practice, which twenty years ago were familiar to me, but have in that time escaped my memory. I hope under these circumstances you will pardon the trouble I propose to you in the enclosed paper. I am not pressed in time, so that your leisure will be sufficient for me. Accept the salutations of grateful and sincere friendship and attachment, and many prayers for your health and happiness from, Dear Sir, Yours affectionately. weaker party can only be protected from those irregularities and abuses which these forms were intended to check, and which the wantonness of power is but too often apt to suggest to large and successful majorities.-2 Hats. 171, 172. And whether these forms be in all cases the most rational or not, is really not of so great importance. It is much more material that there should be a rule to go by, than what that rule is; that there may be a uniformity of proceeding in business, not subject to the caprice of the Speaker, or captiousness of the members. It is very material that order, decency, and regularity be preserved in a dignified public body.-2 Hats. 149. And in 1698 the Lords say the reasonableness of what is desired is never considered by us, for we are bound to consider nothing but what is usual. Matters of form are essential to government, and 'tis of consequence to be in the right. All the reason for forms is custom, and the law of forms is practice; the reason is quite out of doors. Some particular customs may not be grounded on reason, and no good account can be given of them; and yet many nations are zealous for them; and Englishmen are as zealous as any others to pursue their old forms and methods.— 4 Hats. 258. SECTION II. LEGISLATURE. ALL legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.— Constitution of the United States, Article I., Section 1. 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. Const. U. S., Art. I. Sect. 6. For the powers of Congress, see the following Articles and Sections of the Constitution of the United States:-Art. I., Sec. 4, 7, 8, 9.-Art. II., Sect. 1, 2.-Art. III., Sec. 3.-Art. IV., Sec. 1, 3 5.-And all the Amendments. SECTION III. PRIVILEGE. THE privileges of the members of Parliament, from small and obscure beginnings, have been advancing for centuries, with a * firm and never-yielding pace. Claims seem to have been brought forward from time to time, and repeated till some example of their admission enabled them to build law on that example. We can only, therefore, state the point of progression at which they now are. It is now acknowledged, 1st. That they are at all times exempted from question elsewhere, for anything said in their own house that during the time of privilege, 2d. Neither a member himself, his wife, or his servants, [familiares sui] for any matter of their own, may be arrested on mesne process, in any civil suit: 3d. Nor be detained under execution, though levied before the time of privilege: 4th. Nor impleaded, cited or subpoenaed, in any court: 5th. Nor summoned as a witness or juror: 6th. Nor may their lands or goods be distrained: 7th. Nor their persons assaulted, or characters traduced. And the period of time, covered by privilege, before and after the session, with the practice of short prorogations under the connivance of the Crown, amounts in fact to a perpetual protection against the course of justice. In one instance, indeed, it has been relaxed by 10 G. 3, c. 50, which permits judiciary proceedings to go on against them. That these privileges must be continually progressive, seems to result from their rejecting all definition of them; the doctrine being, that "their dignity and independence are preserved by keeping their privileges indefinite;" and that "the maxims upon which they proceed, together with the method of proceeding, rest entirely in their own breast, and are not defined and ascertained by any particular stated laws."-1 Blackstone, 163, 164. It was probably from this view of the encroaching character of privilege, that the framers of our Constitution, in their care to provide that the laws shall bind equally on all, and especially that those who make them shall not be exempt themselves from their operation, have only privileged "Senators and Representatives" themselves from the single act of arrest in all cases except treason, felony, and breach of the peace, during their attendance at the session of their respective Houses, and in going to and returning from the same, and from being questioned in any other place for any speech or debate in either House.—Const. U. S. Art. I. Sec. 6. Under the general authority "to makes all laws necessary and * Order of the House of Commons, 1663, July 16. proper for carrying into execution the powers given them," Const. U. S. Art II. Sec. 8, they may provide by law the details which may be necessary for giving full effect to the enjoyment of this privilege. No such law being as yet made, it seems to stand at present on the following ground:-1. The act of arrest is void, ab initio, 2 Stra. 989.-2. The member arrested may be discharged on motion, 1 Bl. 166. 2. Stra. 990; or by Habeas Corpus under the Federal or State authority, as the case may be; or by a writ of privilege out of the Chancery, 2 Stra. 989, in those States which have adopted that part of the laws of England.-Orders of the House of Com. 1550, Feb. 20.-3. The arrest being unlawful, is a trespass for which the officer and others concerned are liable to action or indictment in the ordinary courts of justice, as in other cases of unauthorized arrest.-4. The court before which the process is returnable, is bound to act as in other cases of unauthorized proceeding, and liable also, as in other similar cases, to have their proceedings stayed or corrected by the Superior Courts. The time necessary for going to and returning from Congress not being defined, it will of course be judged of in every particular case by those who will have to decide the case. While privilege was understood in England to extend, as it does here, only to exemption from arrest eundo, morando, et redeundo, the House of Commons themselves decided that "a convenient time was to be understood."-1580-1 Hats. 99, 100. Nor is the law so strict in point of time as to require the party to set out immediately on his return, but allows him time to settle his private affairs, and to prepare for his journey; and does not even scan his road very nicely, nor forfeit his protection for a little deviation from that which is most direct; some necessity perhaps constraining him to it.-2 Stra. 986, 987. This privilege from arrest, privileges of course against all process, the disobedience is punishable by an attachment of the person; as a subpoena ad respondendum, or testificandum, or a summons on a jury; and with reason, because a member has superior duties to perform in another place. When a Representative is withdrawn from his seat by summons, the 47,700 people whom he represents lose their voice in debate and vote, as they do in his voluntary absence: when a Senator is withdrawn by summons, his State loses half its voice in debate and vote, as it does in his voluntary absence. The enormous disparity of evil admits no comparison. So far there will probably be no difference of opinion as to the privileges of the two Houses of Congress; but in the following cases it is otherwise. In Dec. 1795, the House of Representatives committed two persons of the names of Randall and Whitney, for attempting to corrupt the integrity of certain members, which they considered as a contempt and breach of the privileges of the House; and the facts being proved, Whitney was detained in confinement a fortnight, and Randall three weeks, and was reprimanded by the Speaker. In March, 1796, the House of Representatives voted a challenge given to a member of their House, to be a breach of the privileges of the House; but satisfactory apologies and acknowledgments being made, no further proceedings were had. The Editor of the Aurora having in his paper of Feb. 19, 1800, inserted some paragraphs defamatory to the Senate, and failed in his appearance, he was ordered to be committed. In debating the legality of this order, it was insisted in support of it, that every man, by the law of nature, and every body of men, possesses the right of self-defence; that all public functionaries are essentially invested with the powers of self-preservation; that they have an inherent right to do all acts necessary to keep themselves in a condition to discharge the trusts confided to them; that whenever authorities are given, the means of carrying them into execution are given by necessary implication; that thus we see the British Parliament exercise the right of punishing contempts; all the State Legislatures exercise the same power; and every Court does the same; that if we have it not, we sit at the mercy of every intruder who may enter our doors or gallery, and by noise and tumult render proceeding in business impracticable; that if our tranquillity is to be perpetually disturbed by newspaper defamation, it will not be possible to exercise our functions with the requisite coolness and deliberation; and that we must therefore have a power to punish these disturbers of our peace and proceedings. To this it was answered, that the Parliament and Courts of England have cognizance of contempts by the express provisions of their law; that the State Legislatures have equal authority, because their powers are plenary; they represent their constituents completely, and possess all their powers, except such as their Constitutions have expressly denied them; that the Courts of the several States have the same powers by the laws of their States, and those of the Federal Government by the same State laws, adopted in each State by a law of Congress; that none of these bodies, therefore, derive those powers from natural or necessary right, but from express law; that Congress have no such natural or necessary power, nor any powers but such as are given them by the Constitution; that that has given them directly exemption from personal arrest, exemption from question elsewhere for what is said in the House, and power over their own members and proceedings; for these, no further law is necessary, the Constitution being the law; that, moreover, by that article of the Constitution which authorizes them "to make all laws necessary and proper for carrying into execution the powers vested by the Constitution in them," they may provide by law for an undisturbed exercise of their functions, e. g. for the punishment of contempts, of affrays or tumults in their presence, &c.; but, till the law be made, it does not exist; and does not exist, from their own neglect; that in the meantime, however, they are not unprotected, the ordinary magistrates and courts of law being open and competent to punish all unjustifiable disturbances or defamations, and even their own sergeant, who may appoint deputies ad libitum to aid him, 3 Grey, 59, 147, 255, is equal to the smallest disturbances; that, in requiring a previous law, the Constitution had regard to the inviolability of the citizen as well as of the member; as, should one House, in the regular form of a bill, aim at too broad privileges, it may be checked by the other, and both by the Presi |