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any business from being done. And it is usual for the king, when he means, that parliament should assemble to do business, to give notice by proclamation accordingly; otherwise a prorogation is of course on the first day of the session.1

§829. The fifth section of the first article embraces provisions principally applicable to the powers, rights, and duties of each house in its separate corporate character. These will not require much illustration or commentary, as they are such, as are usually delegated to all legislative bodies in free governments; and were in practice in Great-Britain at the time of the emigration of our ancestors; and were exercised under the colonial governments, and have been secured and recognised in the present state constitutions.

§ 830. The first clause declares, that "each house "shall be the judge of the elections, returns, and quali"fications 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 mem"bers, in such manner, and under such penalties, as "each house may provide."

§ 831. It is obvious, that a power must be lodged somewhere to judge of the elections, returns, and qualifications of the members of each house composing the legislature; for otherwise there could be no certainty, as to who were legitimately chosen members, and any intruder, or usurper, might claim a seat, and thus trample upon the rights, and privileges, and liberties of the people. Indeed, elections would become, under such

11 Black. Comm. 187, 188, and Christian's Note; 2 Wilson's Law Lect. 154, 155.

circumstances, a mere mockery; and legislation the exercise of sovereignty by any self-constituted body. The only possible question on such a subject is, as to the body, in which such a power shall be lodged. If lodged in any other, than the legislative body itself, its independence, its purity, and even its existence and action may be destroyed, or put into imminent danger. No other body, but itself, can have the same motives to preserve and perpetuate these attributes; no other body can be so perpetually watchful to guard its own rights and privileges from infringement, to purify and vindicate its own character, and to preserve the rights, and sustain the free choice of its constituents. Accordingly, the power has always been lodged in the legislative body by the uniform practice of England and America.1

§ 832. The propriety of establishing a rule for a quorum for the despatch of business is equally clear; since otherwise the concerns of the nation might be decided by a very small number of the members of each body. In England, where the house of commons consists of nearly six hundred members, the number of forty-five constitutes a quorum to do business. In some of the state constitutions a particular number of the members constitutes a quorum to do business; in others, a majority is required. The constitution of the United States has wisely adopted the latter course; and thus, by requiring a majority for a quorum, has secured the public from any hazard of passing laws by surprise, or against the deliberate opinion of a majority of the representative body.

1 1 Black. Comm. 163, 178, 179; Rawle on the Constitution, ch. 4, p. 46; 1 Kent. Comm. 220; 2 Wilson's Law Lect. 153, 154.

2 1 Tucker's Black. Comm. App. 201, 202, 203, 229. — I have not been able to find in any books within my reach, whether any particular quorum is required in the house of lords.

§ 833. It may seem strange, but it is only one of many proofs of the extreme jealousy, with which every provision in the constitution of the United States was watched and scanned, that though the ordinary quorum in the state legislatures is sometimes less, and rarely more, than a majority; yet it was said, that in the congress of the United States more than a majority ought to have been required; and in particular cases, if not in all, more than a majority of a quorum should be necessary for a decision. Traces of this opinion, though very obscure, may perhaps be found in the convention itself. To require such an extraordinary quorum for the decision of questions would, in effect, be to give the rule to the minority, instead of the majority; and thus to subvert the fundamental principle of a republican government. If such a course were generally allowed, it might be extremely prejudicial to the public interests in cases, which required new laws to be passed, or old ones modified, to preserve the general, in contradistinction to local, or special interests. If it were even confined to particular cases, the privilege might enable an interested minority to screen themselves from equitable sacrifices to the general weal; or, in particular cases, to extort undue indulgences. It would also have a tendency to foster and facilitate the baneful practice of secession, a practice, which has shown itself even in states, where a majority only is required, which is subversive of all the principles of order and regular government, and which leads directly to public convulsions, and the ruin of republican institutions.?

1 The Federalist, No. 58; Journal of Convention, 218, 242.

2 The Federalist, No. 22, 58.

§ 834. But, as a danger of an opposite sort required equally to be guarded against, a smaller number is authorized to adjourn from day to day, thus to prevent a legal dissolution of the body, and also to compel the attendance of absent members. Thus, the interests of the nation, and the despatch of business, are not subject to the caprice, or perversity, or negligence of the minority. It was a defect in the articles of confederation, sometimes productive of great public mischief, that no vote, except for an adjournment, could be determined, unless by the votes of a majority of the states; and no power of compelling the attendance of the requisite number existed.

1 Journal of Convention, 218, 242; 4 Instit. 43, 49.

2

2 Confederation, art. 9; 1 Elliot's Debates, 44, 45; The Federalist, No. 22.

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CHAPTER XII.

PRIVILEGES AND POWERS OF BOTH HOUSES OF CONGRESS.

§ 835. THE next clause is, "each house may deter"mine the rules of its proceedings, punish its members "for disorderly behaviour, and, with the concurrence of "two thirds, expel a member." No person can doubt the propriety of the provision authorizing each house to determine the rules of its own proceedings. If the power did not exist, it would be utterly impracticable to transact the business of the nation, either at all, or at least with decency, deliberation, and order. The humblest assembly of men is understood to possess this power; and it would be absurd to deprive the councils of the nation of a like authority. But the power to make rules would be nugatory, unless it was coupled with a power to punish for disorderly behaviour, or disobedience to those rules. And as a member might be so lost to all sense of dignity and duty, as to disgrace the house by the grossness of his conduct, or interrupt its deliberations by perpetual violence or clamour, the power to expel for very aggravated misconduct was also indispensable, not as a common, but as an ultimate redress for the grievance. But such a power, so summary, and at the same time so subversive of the rights of the people, it was foreseen, might be exerted for mere purposes of faction or party, to remove a patriot, or to aid a corrupt measure; and it has therefore been wisely guarded by the restriction, that there shall be a concurrence of two thirds of the members, to justify

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