§ 831. The fifth section of the first article embraces provisions principally applicable to the powers, rights, and duties of each house in its separate corporate character. These will not require much illustration or commentary, as they are such as are usually delegated to all legislative bodies in free governments, and were in practice in Great Britain at the time of the emigration of our ancestors, and were exercised under the colonial governments, and have been secured and recognized in the present State constitutions.

§ 832. The first clause declares that "each house shall be the judge of the elections, returns, and qualifications of its own members, (a) and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, (b) in such manner and under such penalties as each house may provide." 1 (c)

§ 833. It is obvious that a power must be lodged somewhere to judge of the elections, returns, and qualifications of the members of each house composing the legislature; for otherwise there could be no certainty as to who were legitimately chosen members, and any intruder or usurper might claim a seat, and thus trample upon the rights and privileges and liberties of the people. Indeed, elections would become, under such circumstances, a mere mockery, and legislation the exercise of sovereignty by any self-constituted body. The only possible question on such a subject is as to the body in which such a power shall be lodged. If lodged in any other than the legislative body itself, its independence, its purity, and even its existence and action may be destroyed or put into imminent danger. No other body but itself can have the same motives to preserve and perpetuate these attributes; no other body can be so perpetually watchful to guard its own rights and privileges from infringement, to purify and vindicate its own character, and to preserve the rights and

1 See the New Jersey Elections for 1841-1843, where the house refused the governor's certificate of election under the State seal as prima facie evidence of election, and the subsequent proceedings.

(a) See Kilbourn v. Thompson, 103 U. S. 168.

(b) So, within limits of jurisdiction, of compelling attendance of witnesses, and punishing them for contempt. Kil

bourn v. Thompson, supra. As to the limits of jurisdiction see that case.

(c) Quincy's Memoir of John Quincy Adams, 295.

sustain the free choice of its constituents. Accordingly, the power has always been lodged in the legislative body by the uniform practice of England and America.1

§ 834. The propriety of establishing a rule for a quorum for the despatch of business is equally clear, since otherwise the concerns of the nation might be decided by a very small number of the members of each body. In England, where the House of Commons consists of nearly six hundred members, the number of forty-five constitutes a quorum to do business. In some of the State constitutions a particular number of the members constitutes a quorum to do business; in others a majority is required. The Constitution of the United States has wisely adopted the latter course; and thus, by requiring a majority for a quorum, has secured the public from any hazard of passing laws by surprise, or against the deliberate opinion of a majority of the representative body.

§ 835. It may seem strange, but it is only one of many proofs of the extreme jealousy with which every provision in the Constitution of the United States was watched and scanned, that though the ordinary quorum in the State legislatures is sometimes less, and rarely more, than a majority, yet it was said that in the Congress of the United States more than a majority ought to have been required; and in particular cases, if not in all, more than a majority of a quorum should be necessary for a decision. Traces of this opinion, though very obscure, may perhaps be found in the convention itself. To require such an extraordinary quorum for the decision of questions would, in effect, be to give the rule to the minority instead of the majority, and thus to subvert the fundamental principle of a republican government. If such a course were generally allowed, it might be extremely prejudicial to the public interest in cases which required new laws to be passed, or old ones modified, to preserve

1 1 Black. Comm. 163, 178, 179; Rawle on the Constitution, ch. 4, p. 46; 1 Kent, Comm. 220; Wilson's Law Lect. 153, 154.

21 Tucker's Black. Comm. App. 201, 202, 203, 229. I have not been able to find, in any books within my reach, whether any particular quorum is required in the House of Lords. (a)

8 The Federalist, No. 58; Journal of Convention, 218, 242.

(a) Three lords constitute a quorum ; see 2 English Jurist, 1829, pp. 261, 262; Cooper's Lettres sur le Chancellerie, Let

ter 18, p. 134; Macqueen's Practice of House of Lords, p. 19.

the general, in contradistinction to local or special interests. If it were even confined to particular cases, the privilege might enable an interested minority to screen themselves from equitable sacrifices to the general weal, or, in particular cases, to extort undue indulgences. It would also have a tendency to foster and facilitate the baneful practice of secession, a practice which has shown itself even in States where a majority only is required, which is subversive of all the principles of order and regular government, and which leads directly to public convulsions and the ruin of republican institutions.1

§ 836. But as a danger of an opposite sort required equally to be guarded against, a smaller number is authorized to adjourn from day to day, thus to prevent a legal dissolution of the body, and also to compel the attendance of absent members.2 Thus, the interests of the nation and the despatch of business are not subject to the caprice or perversity or negligence of the minority. It was a defect in the articles of confederation, sometimes productive of great public mischief, that no vote, except for an adjournment, could be determined, unless by the votes of a majority of the States; and no power of compelling the attendance of the requisite number existed.

1 The Federalist, Nos. 22, 58.

2 Journal of Convention, 218, 242; 4 Instit. 43, 49.

* Confederation, art. 9; 1 Elliot's Debates, 44, 45; The Federalist, No. 22.

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.1 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

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, pp. 287, 288.

2 Journal of Convention, 218, 243.

(

may punish, and what punishment, other than expulsion, may be 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. 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. (a) 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

1 Rawle on the Constitution, ch. 4, p. 47.

2 Yeas 25, nay 1.

8 See Journal of Senate, 8 July, 1797; Sergeant's Const. Law, ch. 28, p. 286; 1 Hall's Law Journ. 459, 471.

4 Yeas 19, nays 10.

(a) March 1, 1861, the Senate expelled a member for alleged treasonable correspondence with the enemy.