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is left to be disposed of by the common tribunals of jus. tice, according to the laws of the land, upon an indict. ment found by a grand jury, and a trial by a jury of peers, before whom the party is to stand for his final deliverance, like his fellow-citizens.
Elections and Meetings of Congress.
$ 133. We next come to the fourth section of the first article, which treats of the elections and meetings of Congress. The first clause is,-" The time, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each State, by the Legislature thereof. But the Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing Senators."
There is great propriety in leaving to the State Legislatures the right, in the first instance, of regulating the times and places of choosing the members of Congress, as every State is thus enabled to consult its own local convenience in the choice ; and it would be difficult to prescribe any uniform time or place of elections, which would, in all possible changes in the situation of the States, be found convenient for all of them. On the other hand, as the ability of the General Government to carry on its own operations depends upon these elections being duly had, it is plain, that it ought not to be left to the State governments, exclusively, to decide, whether such elections should be had, or not. The maxim of sound political wisdom is, that every government ought to contain in itself the means of its own preservation. And, therefore, an ulterior and paramount power is reserved to Congress, to make or alter the regulations as to such elections, so as to preserve the efficiency of the General Government. But, inasmuch as the State Legislatures are to elect Senators, the places of their meetings are left to their own discretion, de kast
fit to be deciced by themselves, with reference to their ordinary duties and convenience. But Congress may still prescribe the times, at which such elections shall be made.
$ 134. The next clause is,-“ The Congress shall assemble at least once in every year; and such meeting shall be on the first Monday of December, unless they shall, by law, appoint a different day.”
The importance of this provision can scarcely be overrated by a free people, accustomed to know their rights, and jealous in the maintenance of them. Unless some time were prescribed for the regular meetings of Congress, they would depend upon the good will and pleasure of Congress itself, or of some other department of the government. In times of violent factions, or military usurpations, attempts might be made to postpone such meetings for an urteasonable length of time, in order to prevent the redress of grievances, or secure the violators of the laws from condign punishment. Annual meetings of the legislature have long been deemed, both in England and America, a great security to liberty and justice, and it was true wisdom to establish the duty of such annual meetings, by a political provision in the Constitution, which could not be evaded or disobeyed.
Powers and Privileges of both Houses.
§ 135. The fifth section of the first article contains an enumeration of the powers, rights, and duties of each branch of the Legislature, in its separate and distinct organic character. The first clause is, -" Each House shall be the judge of the elections, returns, and qualifications, of its own members; 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, in such
manner, and under such penalties, as each House may provide.”
§ 136. These powers are common to all the legislative bodies of the States ; and, indeed, to those of other free governments. They seem indispensable to the due independence and efficiency of the body. The power to ,udge of the elections, returns, and qualifications, of the members of each House, must be lodged somewhere ; for otherwise, any intruder, or usurper, might assume to be a member. It can be safely lodged in no other body, but that, in which the party claims a seat ; for otherwise, its independence, its purity, and even its existence, might be under the control of a foreign authority. It is equally important, that a proper quorum for the despatch of business should be fixed, otherwise a cunning, or industrious, minority might, by stratagem, usurp the functions of the majority, and pass laws at their pleasure. On the other hand, if a smaller number were not authorized to adjourn from day to day, or to compel the attendance of other members, all legislation might be suspended at the pleas ure of the absentees, and the Legislature itself be virtually dissolved.
§ 137. 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.” These powers, also, are usually granted to legislative bodies. If they did not exist, it would be utterly impracticable to transact the business of the nation at all, or at least, to transact it with decency, deliberation, and order. Without rules, no public body can suitably perform its functions. If rules are made, they are mere nullities, unless the persons on whom they are to operate, can be compelled to obey them. But, if an unlimited power to punish, even to the extent of expulsion, existed, it might, in factious times, be applied by a domineering majority, to get rid of the most intelligent, virtuous, and efficient of their opponents. There is, therefore, a check interposed, which requires a concurrence of two thirds to expel ; and this number can hard'y be presumed to concur in exercising the power of ex
pulsion, except in cases of flagrant breaches of the rights of the House.
$ 138. The next clause's, -" Each House shall keep a journal of its proceedings, and from time to time publish the same, except such parts as may, in their judgement, require secrecy. And the yeas and nays of the members of either House, on any question, shall, at the desire of one fifth of those present, be entered on the journal.” Each of these provisions has the same object, to insure publicity and responsibility in all the proceedings of Congress, so that the public mind may be enlightened, as to the acts of the members.
But cases may exist, where secrecy may be indispensable to the complete operation of the intended acts, either at home or abroad. And, on the other hand, an unlimited power to call the yeas and nays on every question, at the mere will of a single member, would interrupt and retard, and, in many cases, wholly defeat, the public business. In each case, therefore, a reasonable limitation is interposed.
§ 139. The next clause is,—“ Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.' Here, again, the object of the clause is manifest, to prevent either House from suspending, at its pleasure, the regular course of legislation, and even of carrying the power to the extent of a dissolution of the session. The duration of the sessions of Congress, subject only to the constitutional expiration of the term of office of the members, thus depends upon their own pleasure, with the single exception (as we shall hereafter see) of the case, where the two Houses disagree, in respect to the time of adjournment, when it is given to the President. So that their independence is effectually guarded against any encroachment on the part of the Executive. In England, the King may prorogue or dissolve Parliament at his pleasure; and, before the Revolution, the same power was generally exercised by the Governors in most of the American Colonies.
$ 140. These are all the powers and privileges ex
pressly enumerated, as belonging to the two Houses But other incidental powers may well be presumed to exist. Among these, the power to punish contempts, committed against either House by strangers, has been generally admitted, and insisted upon in practice, as indispensable to the freedom, the deliberative functions, and the personal safety of the members.
§ 141. The sixth section of the first article contains an enumeration of the personal rights, privileges, and disabilities of the members, as contradistinguished from those of the Houses, of which they are members. The first clause is,-" The Senators and Representatives shal receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. They shall, in all cases, except treason, felony, or breach of the peace, be privileged from arrest, during their attendance at the session of the 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."
§ 142. First, Compensation. It has been greatly questioned, whether, on the whole, it is best to allow compensation to members of Congress, or not. On the one hand, it has been said, that it tempts unworthy and avaricious men to intrigue for office, and to defeat candidates of higher talents and virtues. On the other hand, it has been said, that unless compensation be allowed, merit of the highest order may be excluded by poverty from the national councils ; and in a republican government nothing can be more impolitic than to give to wealth superior encouragement, and facility in obtaining office.
The latter reasoning had its due force, and prevailed in the Convention and with the people. § 143. Next, the privilege from arrest.
This is given in all cases, (except of crimes,) in going to, attending upon, and returning from, any session of Congress. It would be a great mistake to consider it, as in reality a personal privilege, for the benefit of the member. It is rather a privilege for the benefit of his constituents, that they may not be deprived of the presence services, and