242.

70.

at war with the United States, as during the rebellion, or one coming from a State all of whose inhabitants are at war with the United States, the term "qualifications" has, in practice, 275, 279. received a more enlarged signification. Thus in the case of Mr. Niles, in 1846, a committee was raised, in the senate, to inquire into his mental capacity; the rebellion has caused a test oath, which might reach persons in all the States, and does embrace majorities in some of them; a concurrent resolution was passed in 1866, in regard to the States lately in rebellion, which, it was urged, limited this independent power of each house; the fourteenth amendment of the Constitution looks to a new disqualifica- 275–279. tion, and all the reconstruction acts, it has been argued, intrench upon this right. At the time of this writing one committee is investigating the subject of the disqualifications of certain members from Kentucky, and another the question as to whether Maryland has a "republican form of government" within the meaning of the Constitution.

233.

It may be pretty strongly inferred from messages and speeches of President JOHNSON, and certainly it has been very clearly expressed by some of the opposition statesmen in the senate and house, that after the acts of reconstruction, that is, the formation of amended constitutions and elections under the proclamations of the President, the "persons" so chosen were entitled to their seats without any superadded "qualifications" to those prescribed in this 277–279. section, except the fact that they are "loyal men from loyal States."

233.

242.

177.

But the statesmen of the majority argue, that while these States and these very members elected and returned, and the great bodies of their constituents were claiming to be aliens to the United States, and magistrates and people were engaged in war to resist the authority of the government, they were not entitled to representation; and a fortiori they cannot send members with the proper "qualifications" until the law-making power shall determine upon the terms of restoration; and that, certainly, the test oath is a superadded disqualification, which the president's pardon cannot overcome. On the other hand, it has been argued that, as that oath has been decided to be unconstitutional in some cases, it is so as to 142, 143. members who are willing to swear to support the Constitution; that 242. the president's pardon does remove all political disabilities; and therefore, the test oath cannot apply to those who had been pardoned for their participation in the rebellion; and that the action of the people, under the authority of the president, restores those States and the citizens thereof, to all their rights, in statu quo ante bellum. These are the general arguments, for and against. The whole subject is a case not discussed in the formation of the Constitution; it is without precedent, because the frame-work of our government differs from all others; therefore, the difficult problem 275–279. must be worked out under its peculiar circumstances.

It is not within the plan of this work to give the opinions of the Editor. It may not be improper to remark, however, that there seems to be more difference as to who shall accomplish the work of restoration than what shall be done to accomplish it. All seem to

209.

What are the powers of

agree that there was a time when the seceded States could not properly send members, even though such members possessed the constitutional qualifications; yet upon this the Constitution is silent. So the words disloyalty and loyalty are not in it. Necessity had to determine that those at war with the government could not vote on the question of supplies. But the time when, the power which, and the questions hov and to whom political rights shall be restored or given, and indeed how far they are lost, are the matters of difference. Of course the actors in the drama, who believe that the ordinances of secession made the seceding States foreign and independent nations, and all the citizens who remained therein aliens, and during the war alien enemies; that the "Confederate States " became a lawful belligerent power, which was only forced "to yield to superior numbers and means," have a kind of estoppel in limine, for which there is no other answer than that the friends of the United States held and have established the opposite theory.

The great misfortune in this and all political controversies is, that in discussions men neither weigh well nor define their words. I can only pray that, in future editions, facts and precedents may enable the Editor to give the exact signification of terms.

[2.] Each house may determine the rules of its proeach house? ceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.

Where are

47. The "RULES" will be found in "Jefferson's Manual," and the rules to in the published manuals of each house. See Barclay's Digest; be found? the standing rules printed by Francis Childs, in 1795; Jefferson's

What is the

Manual; Dwarris on Statutes, 291; Hastel's Procedents; May's Treatise upon the Law, &c., of Parliament; Cushing's Rules of Proceeding, Debate, &c. All these works should be carefully studied by leading and efficient members of Parliamentary bodies. 1 Kent's Com. 238, and notes to 11th edition, where will be found an epitome of the rules,

48. This does not exclude the power to punish for contempts power as to others than members of the house. The Constitution says nothing contempts? of contempts. These were left to the operation of the common law principle, that all courts have a right to protect themselves from insult and contempt, without which right of self-protection, they could not discharge their high and important duties. Nugent's Case, 1 Am. L. J. 139; Anderson v. Dunn, 6 Wh. 204; 1 Story's Const. SS 845-9; Bolton v. Martin, 1 Dall. 296; Sam. Houston's Case, 11 vol. of Benton's Condensed Debates, pp. 644, 658, where the whole case for striking Stanberry for words spoken in debate is given. This was a contempt not committed in the presence of the House, but upon the avenue, for words spoken and published. Houston was not a member of the House, and was punished by reprimand. Punishment for a breach of privilege should only be inflicted in cases of strong necessity. (Jarvis's Case, and Randolph & Whitney's Case); Houston's Case, 11 Benton's Debates 658.

Whatever may have a tendency to impair the freedom of debate, or to detract from the independence of the representatives of the people, is a breach of privilege. Id. 669. See the question discussed. Jefferson's Manual; Tucker Blackstone App. note 200, 205; 1 Story on the Const. § 845-850, 3 ed.

ber be ex

49. It seems to be settled that a member may be expelled for For what any misdemeanor which, though not punishable by any statute, is may a meminconsistent with the trust and duty of a member. Blount's Case, pelled? 1 Story's Const. § 838; Smith's Case, 1 Hall's L. J. 459; Brooks' Case, for assaulting Senator Sumner in the Senate Chamber, for 193, 194. words spoken in debate. It extends to all cases where the offense is such, as in the judgment of the House, unfits him for parliamentary duties. (1 Bl. Com. 163; Id. Christian's note, 167; Rex. v. Wilkes, 2 Wilson's R. 251; Com. Dig. Parliament G. 5; 1 Hall's Law Journ., 459, 466). 1 Story's Const. § 838.

The Sergeant-at-arms has no authority to arrest by deputy. F. B. Sandborn's Case, 1 Kent's Com. 11 ed. 236, note 2.

derived?

The power to punish for contempt is inherent in all legislative Whence are assemblies. 1 Kent's Com. 236. This has been denied in Engthe powers land. (Kelly v. Carson, 4 Moore Privy Council; 63 Fenton v. Hampton, 11 Id. 347). Id.; Rex v. Flower, 8 T. 314; Yates v. Lansing, 9 John. 417. And see 1 Story's Const. 3d ed. § 845, 850, and his notes which exhaust the authorities.

William Blount was expelled for an attempt to seduce an United 193, 194. States interpreter from his duty, and to alienate the affections and confidence of the Indians from the public officers residing among them, &c. (Journals of the Senate, 8th July, 1797; Serg. Const. Ch. 28, p. 286), Story's Const. § 804.

50. On the 14th March, 1861, the Senate passed the following Who were resolution: Whereas the seats of Albert G. Brown and Jefferson expelled for Davis of Miss., Stephen R. Mallory of Florida, Clement C. Clay, tion in the participajr. of Ala., Robt. Toombs of Ga., and Judah P. Benjamin of rebellion? Louisiana, having become vacant: Therefore, Resolved, that the Secretary be directed to omit their names respectively from the roll." Senate Journal, 14 March, 1861. Jesse D. Bright of Indiana, was also expelled for treasonable correspondence with Jefferson Davis. Senate Journal, 1 March, 1861.

rule as to

[3.] Each house shall keep a journal of its proceed- What is the ings, and from time to time publish the same, except- Journals? ing such parts as may, in their judgment, require secrecy; and the yeas and nays of the members of Yeas and either house, on any question, shall, at the desire of one-fifth of those present, be entered on the journal.

nays?

51. The object is to ensure publicity. Story's Const. § 840. What is the These journals have been published in various editions and are object of the valuable sources of information. journal?

Yeas and nays?

State the

power of adjournments.

What is the

"YEAS AND NAYS" are simply a call for the record of each member's vote upon the questions stated by the Speaker.

[4.] 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.

52. This places Congress independent of the President, except object of the in cases of disagreement. Story's Const. § 843.

power?

How of compensation?

SEC. VI. [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. They shall, in all cases, except treason, Privileges? 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.

What is the compensa

bers?

53. COMPENSATION.-The rate of compensation or pay has been several times increased to meet the exigencies of the diminished tion of mem- value of money. It is now five thousand 1 Story's Const. § 858. dollars per annum for the Senators and Representatives, and eight thousand dollars for the Speaker; and twenty cents a mile, by the nearest usually traveled route. 14 St. p. 323 § 17.

How fixed?

The members of the British Parliament receive no compensation. (1 Blackst. Com. 174, and Christian's note 34); Story's Const. § 853. The subject is one on which there was much division in the Convention. (Journal of the Convention, 67, 116-119, 142–151; 2 Elliot's Debates. 279, 280; 4 Elliot's Debates, 92-99. The reasons for and against discussed. Rawle on the Const. ch. 18, p. 179); Story's Const, § 854-858. See Confederation, ante Art. V., P. 11.

54. "TO BE ASCERTAINED BY LAW," removes the subject from And why? the pride and parsimony, the local prejudices and local habits of any 53. section of the Union. (3 Elliot's Debates, 279.) Story's Const. § 857.

What are

55 THIS PRIVILEGE, which means freedom from arrest, has betheir privi- longed to all legislative bodies on the Continent, and immemoleges? rially to the English Parliament. (1 Black. Com. 164, 165; 48. Com. Dig. Parliament D. 17; Jefferson's Manual, § 3, Privilege; Benyon v. Evelyn, Sir O. Bridge. R. 334.) 1 Story on Const. §

859. It could not be surrendered without endangering the public liberties, as well as the private independence of the members. (1 Kent's Com. Lect. 11. Bolton v. Martin, Dallas 296. Coffin v. Coffin, 4 Mass., R. 1) Story's Const. § 869. See Ante Art. V., p. 11.

It is not merely the privilege of the member or his constituents, but the privilege of the House also. And every man must at his peril take notice who are the members of the house returned of record. (4 Jefferson's Manual, 4), 1 Story's Const. § 860.

56. "TREASON, FELONY, OR BREACH OF THE PEACE." This From what would seem to extend to all indictable offenses, as well those which offences? are in fact attended with force and violence, as those which are only constructive breaches of the peace of the government, inasmuch as they violate its good order. 1 Bl. Com. 166; 1 Story's 192, 194. Const. § 865. The words were borrowed from the common law, 14 Inst. 25; 1 Black. Com. 165; Com. Dig. Parliament D. Breaches of the peace include libels. Rex v. Wilkes, 2 Wilson's R. 151.) Story's Const. § 865.

57. ARREST. They are privileged not only from arrest, both on From what judicial and mesne process, but also from the service of a summons arrest privileged? or other civil process, while in attendance on their public duties. Geyer's Lesse v. Irwin, 4 Dall. 107; Nones v. Edsall, 1 Wall. Jr. 191; 1 Story's Const. § 860; Coxe v. McClenachan, 3 Dall. 478. Jefferson's Manual, § 3 and 4.

The privilege is personal and does not extend to servants or property. It is only for a reasonable time, eundo, morando, et ad propria redeundo. (Holliday v. Pitt, 2 Str. R. 985; S. C. Cas. Temp. Hard. 28; 1 Black. Com. 165, Christian's note 21; Barnard v. Mordaunt, 1 Kenyon R. 125; 4 Jeff. Manual, § 3); Story's Const. § 861, 862, 864.

arrest?

58. THE EFFECT of the arrest is, that it is a trespass ab initio, What is the actionable and indictable, and punishable as a contempt of the house. effect of the (1 Black. Com. 164-166; Com. Dig. Parliament D. 17; Jefferson's Manual, § 3.) Story's Const. § 863. The member may also be discharged by motion to a court of justice, or upon a writ of habeas corpus. (Jefferson's Manual, § 3; 2 Str. 990; 2 Wilson's R. 151; Cas. Temp. Hard. 28). 1 Story's Const. § 863.

59. The privilege from arrest commences before the member takes his seat or is sworn. § 3; but see Comyn's Dig. Parliament D. 17.)

from the election and When does it (Jefferson's Manual, commence? Story's Const. § 864.

60. One who goes to Washington duly commissioned to repre- In whose fasent a State in Congress, is privileged from arrest, eundo, morando et vor? redeundo; and though it be subsequently decided by Congress, that he is not entitled to a seat there, he is protected until he reaches home, if he return as soon as possible after such decision. Dunton v. Halstead, 4 Penn. L. J. 237.

61. "AND FOR ANY SPEECH OR DEBATE IN EITHER HOUSE THEY What is free-. SHALL NOT BE QUESTIONED IN ANY OTHER PLACE.'

dom of debate?

This secures the freedom of debate. (2 Wilson's Law Sect. 156; 246, 247. 1 Black. Com. 164, 165.) Story's Const. § 866.