open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, or more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which, once exercised, is exhausted. It is a continuous power, always subject to be exercised by the house, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.52

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The principal case in which the power of either branch of the United States Congress to punish its members for disorderly conduct or for contempt is involved is that of Kilbourn v. Thompson, where the court held that: "Either house has full power to punish its members for disorderly conduct, and the punishment inflicted may be imprisonment, either in cases of refusal to obey some rule of the house, or in cases of unauthorized absences. On the other hand, the houses of Congress do not have the general power of punishing for contempt, and the cases in which they can do so are very limited. The right of the House of Representatives to punish citizens for a contempt of its authority or a breach of its privileges can derive no support from the precedents and practices of the two houses of the English Parliament, nor from the adjudged cases in which the English courts have upheld these practices. No person can be punished for contumacy as a witness before either house, unless his testimony is required in a matter into which that house has jurisdiction to inquire. The House of Representatives is not the final judge of its own power and privileges in cases in which the rights and liberties of the subject are concerned, but the legality of its action may be examined and determined by the courts of the United States."

The right to expel extends to all cases where the offense, in the judgment of the house of which the offender is a member,

2 United States v. Ballin, Joseph & Co., 144 U. S. 1.

53103 U. S. 168. See also Ex parte Nugent, Brun. Cal. Cases,

296, 18 Fed. Cases, No. 10, 375; Anderson v. Dunn, 6 Wheaton, 204; Stewart v. Blaine, 1 MacArthur (D. C.) 454.

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renders him unworthy of continued membership in such body." For example, a senator may be expelled for treason55 or for "a high misdemeanor."5.

§ 129. Journals of Congress. Their Publication. "Each house shall keep a journal of its proceedings, and from time to time publish the same, excepting 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 onefifth of those present, be enacted on the journal."57

The publication of the records of legislative bodies is a comparatively recent development, even among the Anglo-Saxon

races.

"Of all the privileges of Parliament, the one which has undergone the greatest modification, and of which the practical abandonment has produced the most momentous political results, is that in which concerns the secrecy of its proceedings.

"The original motive for secrecy of debate was the anxiety of the members to protect themselves against the action of the sovereign, but it was soon found equally convenient as a veil to hide their proceedings from the constituencies.

""To print or publish the speeches of gentlemen in this house,' said Mr. Pulteney in 1733, 'looks very like making them accountable without doors for what they saw within;' and it was only after a prolonged struggle that the right of the electors and the public at large to know what the representatives of the Nation were doing in Parliament was at length virtually conceded."58

The first step in the direction of publicity was taken by the famous long Parliament in 1641, when it permitted the publication of its proceedings in the "Diurnal Occurences of Parliament," which continued until 1650; the publication of speeches delivered in Parliament was still prohibited. In 1680 the Commons directed their "votes and proceedings" to be printed under the direction of the Speaker; this also did not include speeches. After the revolution of 1688 the news letter writers began to

give account of Parliamentary proceedings and, in spite of strong efforts on the part of Parliament to prevent it, this custom rapidly increased. Such reports were, however, naturally very inaccurate, and the speakers were referred to by nicknames. In 1771 notes of the speeches were published in several journals, accompanied for the first time with the names of the speakers.

This brought about a fierce conflict between the House of Commons and the printers, in which the public sentiment was so strongly with the printers that since that time the house has never again attempted to interfere with such publications (except in case of wilful misrepresentation), although it is still in theory in England a breach of privilege.

The last clause of the ninth article of the Articles of Confederation contained the following provision, which became the basis of the provision on this subject in the Constitution: "The Congress of the United States shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties alliances, or military operations, as in their judgment require secrecy, and the yeas and nays of the delegates of each State on any question shall be entered on the journal, when it is desired by any delegate, and the delegates of a State, or any of them, at his or their request, shall be furnished with a transcript of the said journal, except such parts as are above excepted, to lay before the legislature of the several States."

Each house of Congress has full discretion as to the particular manner in which its proceedings shall be kept.50 It is not the intention of the Constitution to make the journals of Congress the best evidence upon an issue as to whether a bill has been in fact passed by the two houses of Congress."

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§ 130. Adjournment of Congress.-Either House of Congress is forbidden, during the session of Congress, without the consent of the other to adjourn for a longer period than three days nor to any other place than that in which Congress should be sitting. This last provision was inserted, in anticipation of danger over the struggle on the question of the location of the capital, to prevent a separation of the two houses.

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5 Field v. Clark, 143 U. S. 670.

GO Id.

61 United States Constitution, Art I., Sec. V., Clause 4.

§ 131. Privileges of Members of Congress.-Section 6 provides that 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. This is an innovation both in respect to the rule in the English Parliament and that under the Articles of Confederation. The members of the English Parliament are not paid, while under the Articles of Confederation the members of Congress were paid by the individual state sending them.

Certain privileges were granted to members of Congress which were the heritage from the long struggle for their rights by the English Parliament. The right of freedom of speech by members of Parliament was strenuously asserted by Parliament as early as the beginning of the fifteenth century, and although forced into the background during the tyranny of the Tudors it became one of the first matters of controversy between the King and Parliament during the Stuart period and the privilege of Parliament in this respect was finally vindicated by the ninth section of the Bill of Rights.

"That the freedom of speech, and debates of proceedings in Parliament, ought not to be impeached or questioned in any Court or place out of Parliament."

The privilege of freedom from arrest to those attending the National Council dates back not only to Saxon times, but even to the time of the Seven Kingdoms. There is still extant a law passed in Kent during the sixth century for the protection of those going to the Witenagemote and a law of Court in the eleventh century provides that every man be entitled to grith (immunity from arrest or other molestation) while going to the gemot, except he be a notorious thief."

This privilege was acknowledged several times by the early Plantagenent Kings and at length in 11th Henry VI. (1432) a statute was passed for the punishment of such as interfere with any member of Parliament on his way to a meeting of that body. The Act of I. James I., C. 13, recognizes as existing law: (1) the privilege of freedom from arrest; (2) the right of either House of Parliament to set a privileged person at liberty; and (3) the right to punish those who make or procure arrests.

Attempts were made during the seventeenth century to infringe upon this privilege, but such attempt finally ceased upon the overthrow of the Stuarts.

The privileges were granted to members of Congress by the Articles of Confederation in the following clause: "Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place outside of Congress, and the members of Congress shall be protected in their persons from arrests and imprisonment, during the time of their going to and from, and attendance on Congress, except for treason, felony, or breach of the peace."62

The provision in the Constitution is very similar to this: "They (i. c., senators and representatives) shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same, and for any speech or debate in either house, they shall not be questioned in any other place."63

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This privilege of exemption from arrest should be liberally construed. The protection extends to judicial as well as to mesne process,65 and even to the service of process not accompanied by arrest. Congress may release by its own authority any of its members illegally imprisoned. A member of Congress may be required to give security to keep the peace."s

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§ 132. Disabilities of Members of Gongress.-Restrictions are placed upon the holding of other offices by senators or representatives in the following words: "No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States which shall have been created, or the emoluments thereof shall have been increased during such time; and no person holding any