ment, to wit: the want of an express grant, and the unrestricted and undefined nature of the power here set up. For why should the house be at liberty to exercise an ungranted, an unlimited, and undefined power within their walls, any more than without them? If the analogy with individual right and power be resorted to, it will reach no farther than to exclusion, and it requires no exuberance of imagination to exhibit the ridiculous consequences which might result from such a restriction imposed upon the conduct of a deliberative assembly.

Nor would their situation be materially relieved by resorting to their legislative power within the district. That power may, indeed, be applied to many purposes, and was intended by the constitution to extend to many purposes, indispensable to the security and dignity of the general government; but they are purposes of a more grave and general character than the offences which may be denominated contempts, and which, from their very nature, admit of no precise definition. Judicial gravity will not admit of the illustrations which this remark would admit of. Its correctness is easily tested by pursuing, in imagination, a legislative attempt at defining the cases to which the epithet "contempt " might be reasonably applied.

But although the offence be held undefinable, it is justly contended, that the punishment need not be indefinite. Nor is it so.

We are not now considering the extent to which the punishing power of congress, by a legislative act, may be carried. On that subject the bounds of their power are to be found in the provisions of the constitution.

The present question is, What is the extent of the punishing power which the deliberative assemblies of the union may assume and exercise on the principle of self-preservation?

Analogy, and the nature of the case, furnish the answer, "the least possible power adequate to the end proposed; which is the power of imprisonment. It may, at first view, and from the history of the practice of our legislative bodies, be thought to extend to other inflictions. But every other will

be found to be mere commutation for confinement; since commitment alone is the alternative where the individual proves contumacious. And even to the duration of imprisonment a period is imposed by the nature of things, since the existence of the power that imprisons is indispensable to its continuance ; and although the legislative power continues perpetual, the legislative body ceases to exist on the moment of its adjournment or periodical dissolution. It follows, that imprisonment must terminate with that adjournment.

This view of the subject necessarily sets bounds to the exercise of a caprice which has sometimes disgraced deliberative assemblies, when under the influence of strong passions or wicked leaders, but the instances of which have long since remained on record only as historical facts, not as precedents for imitation. In the present fixed and settled state of English institutions, there is no more danger of their being revived, probably, than in our own.

But the American legislative bodies have never possessed, or pretended to, the omnipotence which constitutes the leading feature in the legislative assembly of Great Britain, and which may have led occasionally to the exercise of caprice, under the specious appearance of merited resentment.

If it be inquired, What security is there, that, with an officer avowing himself devoted to their will, the house of representatives will confine its punishing power to the limits of imprisonment, and not push it to the infliction of corporal punishment, or even death, and exercise it in cases affecting the liberty of speech and of the press? the reply is to be found in the consideration, that the constitution was formed in and for an advanced state of society, and rests at every point on received opinions and fixed ideas. It is not a new creation, but a combination of existing materials, whose properties and attributes were familiarly understood, and had been determined by reïterated experiments. It is not, therefore, reasoning upon things as they are, to suppose that any deliberative assembly, constituted under it, would ever assert any other rights and powers

than those which had been established by long practice, and conceded by public opinion. Melancholy, also, would be that state of distrust which rests not a hope upon a moral influence. The most absolute tyranny could not subsist where men could not be trusted with power because they might abuse it, much less a government which has no other basis than the sound morals, moderation, and good sense of those who compose it. Unreasonable jealousies not only blight the pleasures, but dissolve the very texture of society.

But it is argued, that the inference, if any, arising under the constitution, is against the exercise of the powers here asserted by the house of representatives; that the express grant of power to punish their members respectively, and to expel them, by the application of a familiar maxim raises an implication against the power to punish any other than their own members.

This argument proves too much; for its direct application would lead to the annihilation of almost every power of congress. To enforce its laws upon any subject, without the sanction of punishment, is obviously impossible. Yet there is an express grant of power to punish in one class of cases and one only, and all the punishing power exercised by congress in any cases, except those which relate to piracy and offences against the laws of nations, is derived from implication. Nor did the idea ever occur to any one, that the express grant in one class of cases repelled the assumption of the punishing power in any other.

The truth is that the exercise of the powers given over their own members was of such a delicate nature that a constitutional provision became necessary to assert or communicate it. Constituted, as that body is, of the delegates of confederated states, some such provision was necessary to guard against their mutual jealousy, since every proceeding against a representative would indirectly affect the honor or interests of the state which sent him.

In reply to the suggestion, that, on this same foundation of necessity might be raised a superstructure of implied powers

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in the executive and every other department and even ministerial officer of the government, it would be sufficient to observe that neither analogy nor precedent would support the assertion of such powers in any other than a legislative or judicial body. Even corruption anywhere else would not contaminate the source of political life. In the retirement of the cabinet, it is not expected that the executive can be approached by indignity or insult; nor can it ever be necessary to the executive, or any other department, to hold a public deliberative assembly. These are not arguments; they are visions which mar the enjoyment of actual blessings with the attack or feint of the harpies of imagination.

As to the minor points made in this case, it is only necessary to observe that there is nothing on the face of this record from which it can appear on what evidence this warrant was issued. And we are not to presume that the house of representatives would have issued it without duly establishing the fact charged on the individual. And as to the distance to which the process might reach, it is very clear that there exists no reason for confining its operation to the limits of the district of Columbia; after passing those limits, we know no bounds that can be prescribed to its range but those of the United States. And why should it be restricted to other boundaries? Such are the limits of the legislating powers of that body; and the inhabitant of Louisiana or Maine may, as probably, charge them with bribery and corruption or attempt by letter to induce the commission of either, as the inhabitant of any other section of the union. If the inconvenience be urged, the reply is obvious; there is no difficulty in observing that respectful deportment which will render all apprehension chimerical.

Judgment affirmed.

6 Wh. 234.

MARTIN v. MOTT.

JANUARY TERM, 1827.

[12 Wheaton's Reports, 19-39.]

DURING the war of 1812, the governor of New York, upon the requisition of the president of the United States, called out the militia of that state. Mott was a private militia-man, but did not go out. On the 24th of September, 1814, General Lewis summoned a court martial to try those who had neglected the call of the governor; Mott appeared before the court, defended himself, and was sentenced to pay a fine. When this sentence was passed, however, there was no officer of rank equal to that of the governor of New York when he made the call for the militia, or of General Lewis, within the New York district; but the sentence of the court was approved by the president of the United States, and Martin, the deputy marshal, thereupon collected the fine. Mott sued Martin for so doing; Martin set forth the facts, to which Mott demurred. The supreme court and court of errors in New York decided in Mott's favor, and thereupon Martin took out his writ of error to the United States supreme court. In the following opinion of the court, as delivered by Judge Story, the objections made to Martin's defence are stated so fully as to make any detail of them needless :

*

THIS is a writ of error to the judgment of the court for the trial of impeachments and the correction of errors of the state of New York, being the highest court of that state, and is brought here in virtue of the twenty-fifth section of the judiciary

* In an avowry, as it is called.