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is constantly exercised, the Vice-President being frequently absent.

§67. 6th Clause. The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath, or affirmation. When the President of the United States is tried, the Chief-Justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present.

§ 68. The impeaching power, and some of the rules of conducting an impeachment, have been heretofore noticed. This mode of impeachment and trial under the Constitution is derived from the British Parliament, where the Commons have the sole power of impeachment, and the House of Lords the power of trial. It seems, however, to have been introduced into the Common Law from the customs of the Germans; among them, however, the people were both accusers and judges.

§ 69. In the trial of the President, the Chief-Justice presides, in order to preclude the Vice-President, who, in case of a vacancy, succeeds to the Presidency, from having any part in the creation of that vacancy.

§ 70. 7th Clause. Judgment in case of impeachment shall not extend farther than to a removal from office, and disqualification to hold and enjoy any office of honour, trust, or profit under the United States; but the party convicted shall nevertheless be liable, and subject to indictment, trial, judgment, and punishment according to law.

In England, the judgment upon impeachments extends, not only to removal from office, but to the whole penalty attached by law to the offence. The House of Lords may, therefore, inflict capital punishment, banishment, or forfeiture of goods, according to its direction.2

§71. In another place3 we have stated the mode of

1 Sections 51, 52, 53. * Com. Digest. Parliament, L. 44:

3 Section 53.


procedure in the Senate upon the trial of impeachments. When the evidence is gone through, and the parties have been heard, the Senate proceed to consider the case. If debates arise, they are in secret; a day is then assigned for a public decision by yeas and nays. When the court has met, the question is propounded by the President of the Senate to each individual member by name: whereupon the member rises and answers, guilty, or not guilty, as his opinion is. If upon no one article the party is found guilty by two-thirds of the Senate, he is declared acquitted by the President of the Senate. If guilty, the Senate proceed to fix and declare the punish


§72. SECTION 4TH. 1st Clause. The times, 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.

73. Under this section Congress has the power to appoint the times and modes of choosing representatives and senators. This power they have never exercised, and the time and mode of choosing them is consequently very various. In some states, as New-York and Ohio, members of the House of Representatives are chosen in the year previous to the dissolution of Congress; in others, as New-Hampshire and Virginia, in the spring following; and in others again, as in Indiana, in the following summer. Congress has, except on two occasions, met on or about the first Monday in December; but suppose, that from the emergency of the case, they should appoint a day early in the spring; in what manner would those states now electing representatives in the summer, be represented? The power of regulating the times and places of electing representatives was thus given to Congress, in order that it might have the means of its own preservation; otherwise, the states might prevent an election.

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§ 74. 2d Clause. The Congress shall assemble at least once in every year; and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day.

§75. This provision was inserted in order to establish, beyond the possibility of prevention, the annual sessions of Congress; the time of meeting within the year has been fixed, but Congress may change it, and on two or three occasions they have held extra sessions.

§76. SECTION 5TH. 1st Clause. 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 a manner and under such penalties as each House may provide.

§77. Some number must be fixed to constitute a quorum; it is here fixed at a majority, upon the general principle recognised in all the institutions of the United States, that the majority must govern. If any less number were required to make a quorum, the minority, by acting in the absence of the majority, might govern; and if a larger number were required, the minority might prevent legislation by absenting themselves.

$78. The House and Senate regularly appoint committees on elections, which investigate all contested claims to seats, and all doubtful returns, qualifications, &c. The committees report to the House, which makes the ultimate decision. From this decision there is no appeal, and it is obvious there ought not to be, for the power could be nowhere else lodged so safely.

79. 2d Clause. Each House shall determine the rules of its proceedings, punish its members for disorderly behaviour, and, with the concurrence of twothirds, expel a member.

§ 80. The rules of proceedings enacted are numerous, and will be considered in another place.

§81. The power to "punish its members for disorderly behaviour" has been frequently exercised. Thus, in 1797, William Blount, a senator from Tennessee, was expelled for "a high misdemeanour, entirely inconsistent with his public trust and duty as a senator." His offence was an attempt to seduce an Indian agent from his duty, and alienate the affections of the Indians from the authorities of the United States. The offence was not statutable, nor committed in his official character, nor committed during the session of Congress, nor at the seat of government. Yet he was expelled from the Senate, and afterward impeached.'

§ 82. It is, therefore, settled by the Senate, that expulsion may be for any misdemeanour, though not punishable by any statute, which is inconsistent with the trust and duty of a senator.

§83. Although there is a power enumerated given to Congress to punish disorderly behaviour, yet there is none expressly given to punish contempts. Yet this power, being absolutely necessary to the order and security of the House, has been adjudged, both by Congress and the Supreme Court, to be a necessary incident to the powers of Congress.

§84. This power was exercised by the House of Representatives in the case of Robert Randall, in 1795, for an attempt to corrupt a member.

§ 85. The same point was solemnly decided by the Supreme Court in the case of Anderson vs. Dunn.2 One Anderson was committed for a contempt of the House, and placed in the custody of the sergeant-atarms. An action of trespass was brought against the officer, and the case carried to the Supreme Court. That tribunal decided that the House had the power, and that it extended no farther than imprisonment, and continued no longer than the duration of the power that 26 Wheaton, 204,

1 2 Story's Comm. 299.

imprisoned, and consequently terminated with the dissolution of Congress.

86. The same power was exercised in 1800 by the Senate in the case of William Duane, who was found guilty of a printed libel on the Senate, and punished with imprisonment. So also by the House of Representatives, in the case of Samuel Houston, who assaulted a member for words spoken in debate, and was found guilty of a contempt and reprimanded.

87. 3d Clause. 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 one-fifth of those present, be entered on the journal.

88. The yeas and nays, being the means by which the constituents discover the conduct of their representatives, are often called for, and generally granted. No important question is agitated upon which the yeas and nays are not recorded. This provision is very important; for, as the periods of elections are short, the representative is constantly held responsible to the people, and there is no scrutiny which he dreads more than that into his recorded votes.

89. 4th Clause. 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.

§ 90. By this provision, it is impossible that either House should prevent the progress of business, and each has a complete negative on the other.

§ 91. SECTION 6TH. 1st Clause. 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, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to or

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