termining that the eight or nine individuals who were elected were not entitled to sit in the legislature of the State, because they lacked the certificates. But if the Senate can inquire into this question at all, it must certainly inquire for the fact rather than the evidence of the fact. It cannot be maintained that when the Senate has been compelled to enter upon such an examination it is estopped by mere prima facie evidence of the fact, and the certificate is conceded to be nothing more than prima facie evidence. But the Senate must go back of that to the fact itself, and determine whether the persons claiming to hold seats were in fact elected. When we do this we come to the conceded fact that these persons, lacking the certificate, had in fact been elected, and that the persons who claimed to be a quorum of the two houses were in fact the persons who, in virtue of the election, were entitled to constitute the quorum of both houses."

§ 517. The case here decided was without an exact precedent in the history of contested seats in the United States Senate. It was, of course, insisted in opposition to the doctrine of the report that the Senate was bound to recognize as the legislature of Alabama, that body which consisted of a quorum of members holding the usual prima facie evidence of election thereto. But the answer to this was that the Senate may in such a case as this, inquire into the question who in fact composed the legislature, and shall not be concluded by the prima facie evidence by which a legislative body in organizing itself, ought to be bound. There was an important fact in the case, of which we are speaking, which must not

be overlooked. The two bodies did not remain separated, but came together, and after uniting and forming a legislature, about the legality of which there was no question, they adjudicated the question concerning the several contested seats in favor of the persons who sat in the court house body, which elected Mr. Spencer. So that the legislature of Alabama itself having adjudicated this question, it become in the Senate of the United States simply a question whether effect should be given to the votes of persons who had in fact no right to vote. This precedent should not be extended beyond the case decided, and therefore all the facts should be kept in view. It is believed that the case was well decided upon the following rule, which may be safely followed as a precedent, to-wit:

Where a State legislature, which ought to be a unit, is divided into two bodies, one of which is composed of a majority of the members elected, but not of a majority of the members returned, if this body assumes to be the legislature, and as such elects a Senator in Congress, and if afterwards the two bodies unite, the validity of such election of Senator will depend, not upon the question whether the persons composing that body were prima facie entitled to the office, but upon the question whether they were in fact so entitled. Whether this rule would apply where the two bodies remained permanently separated, was not decided, for the question did not arise. That it should apply to a case like the one under consideration, is manifest from the consideration that to adopt the opposite rule would be in effect to say that a minority of the members

elected, the consolidated legislature being itself the judge as to who was and who was not elected, shall be held to have composed the legislature.

This would be to put the form above the substance, and to sacrifice the real merits out of regard to the first appearances, and regardless of the fact that the prima facie evidence of title to seats, upon which alone such a decision could be based, has been set aside and overcome by subsequent proof.

But it may be said that the six persons holding certificates, but not elected, should have been regarded as members of the legislature de facto, and their acts as such held valid until they were unseated by a contest. Here again is a misapplication of a well settled rule.

The election of a Senator in Congress is not in the nature of an ordinary legislative act; it is an election, and not the enactment of a law. Of the validity and bona fides of such an election the Senate of the United States is the sole and exclusive judge.

The cases in which the official acts or votes of members of a legislative body who are such de facto only, and not de jure, have been held valid, are all cases in which there was no question as to the legality of the body in which they sat. They are cases in which the body admitting such persons was, in doing so, acting within its admitted jurisdiction, and in such cases the courts will not inquire into the title of such members to their seats. The courts, in such cases, will go no further than to inquire as to the legal status and authority of the

body as a whole, but

where there are two bodies, each claiming to be the legislature, then the Court, whose duty it is to re

spect and execute the acts of such legislature, must of necessity decide which is the legislature.

§ 518. From these considerations it is apparent that the case of Sykes vs. Spencer, is not in conflict with the rule that in the organization of legislative bodies, persons holding the usual credentials are alone authorized to act; nor is it in conflict with the general doctrine that the acts of a member of a legislative body who is such defacto only, are valid. It goes no further than to hold that the particular election in question, though perhaps irregular, was not void; that it was by the action of the consolidated and legal legislature, shown to have been an election by the quorum of members duly elected to the legislature; and that the Senate of the United States acting as sole judge of said election, might with propriety admit to a seat the person chosen at said election.

§ 519. A legislative body has power to preserve order and decorum, enforce its rules, and prevent or punish any breach of decorum or of the privileges of the body or of any of its members. Mr. Cushing in his manual of parliamentary practice, in speaking of the rights and duties of members of a deliberative assembly says: "The only punishments which can be inflicted upon its members by a deliberative assembly of the kind now under consideration consist of reprimanding, exclusion from the assembly, a prohibition to speak or vote for a specified time, and expulsion; to which are to be added such other forms of punishment as by apology, begging pardon, &c., as the assembly may see fit to impose, and to require the offender to submit on pain of expulsion.” (Cushing's Manual, chap. 3.)

520. A member may be accused or complained of by any other member, or by the presiding officer, and it is the duty of the latter to make such complaint to the House, in case any member is guilty of irregular and disorderly deportment in the course of the sessions of the body. When a complaint of this kind is made, the offender is named, that is the announcement is made to the assembly, that such a member, calling him by name, is guilty of certain irregular and improper conduct. The accused member may be heard in his defense, and after being heard, must withdraw, while the body deliberates upon the case, unless the assembly resolve to allow him to remain. He must not, however, in any case, be allowed to vote on his own case, "it being," says Mr. Cushing," contrary not only to the laws of decency, but to the fundamental principles of the social compact, that a man should sit and act as a judge in his own case."

§ 521. The power of the two Houses of Congress over their members is derived from Art. 1, Sec. 5, of the constitution, which provides: " 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." The question has been much discussed, whether a member may be punished or expelled for an act or acts. done prior to his election. The question seems first to have arisen in the case of Senator Marshall, of Kentucky. (1804.) The Senate in that case refused to take jurisdiction, for the reason, among others, that the alleged offense had been committed prior to the Senator's election, and was matter cog