صور الصفحة
النشر الإلكتروني

against any en roachment on the part of the executive.1 Very different is the situation of parliament under the British constitution; for the king may, at any time, put an end to a session by a prorogation of parliament, or terminate the existence of parliament by a dissolution, and a call of a new parliament. It is true, that each house has authority to adjourn itself separately; and this is commonly done from day to day, and sometimes for a week or a month together, as at Christmas and Easter, or upon other particular occasions. But the adjournment of one house is not the adjournment of the other. And it is usual, when the king signifies his pleasure, that both, or either of the houses should adjourn themselves to a certain day, to obey the king's pleasure, and adjourn accordingly; for otherwise a prorogation would certainly follow.2

§ 842. Under the colonial governments, the undue exercise of the same power by the royal governors constituted a great public grievance, and was one of the numerous cases of misrule, upon which the declaration. of independence strenuously relied. It was there solemnly charged against the king, that he had called together legislative [colonial] bodies at places, unusual, uncomfortable, and distant from the repository of the public records; that he had dissolved representative bodies, for opposing his invasions of the rights of the people; and after such dissolutions, he had refused to reassemble them for a long period of time. It was natural, therefore, that the people of the United States should entertain a strong jealousy on this subject, and should interpose a constitutional barrier against any such abuse

1 1 Tucker's Black. Comm App. 206, 207.

2 1 Black. Comm. 185 to 190; 2 Wilson's Law Lect. 154, 155; Com. Dig. Parliament, L. M. N. O. P.

by the prerogative of the executive. The state constitutions generally contain some provision on the same subject, as a security to the independence of the legislature.

§ 842. These are all the powers and privileges, which are expressly vested in each house of congress by the constitution. What further powers and privileges they incidentally possess has been a question much discussed, and may hereafter be open, as new cases arise, to still further discussion. It is remarkable, that no power is conferred to punish for any contempts committed against either house; and yet it is obvious, that, unless such a power, to some extent, exists by impli cation, it is utterly impossible for either house to perform its constitutional functions. For instance, how is either house to conduct its own deliberations, if it may not keep out, or expel intruders? If it may not require and enforce upon strangers silence and decorum in its presence? If it may not enable its own members to have free ingress, egress, and regress to its own hall of legislation? And if the power exists, by implication, to require the duty, it is wholly nugatory, unless it draws after it the incidental authority to compel obedience, and to punish violations of it. It has been suggested by a learned commentator, quoting the language of Lord Bacon,' that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated; and hence he deduces the conclusion, that, as the power to punish contempts is not among those enumerated, as belonging to either house, it does not exist." Now, however wise or correct the maxim of Lord Bacon is in a general sense,

1 Advancement of Learning; 1 Tuck. Black. App. 200, note. 21 Tucker's Black. 200.

[blocks in formation]

as a means of interpretation, it is not the sole rule. It is no more true, than another maxim of a directly opposite character, that where the end is required, the means are, by implication, given. Congress are required to exercise the powers of legislation and deliberation. The safety of the rights of the nation require this; and yet, because it is not expressly said, that congress shall possess the appropriate means to accomplish this end, the means are denied, and the end may be defeated. Does not this show, that rules of interpretation, however correct in a general sense, must admit of many qualifications and modifications in their application to the actual business of human life and human laws? Men do not frame constitutions of government to suspend its vital interests, and powers, and duties, upon metaphysical doubts, or ingenious refinements. Such instruments must be construed reasonably, and fairly, according to the scope of their purposes, and to give them effect and operation, not to cripple and destroy them. They must be construed according to the common sense applied to instruments of a like nature; and in furtherance of the fundamental objects proposed to be attained; and according to the known practice and incidents of bodies of a like nature.

§ 843. We may resort to the common law to aid us in interpreting such instruments, and their powers; for that law is the common rule, by which all our legislation is interpreted. It is known, and acted upon, and revered by the people. It furnishes principles equally for civil and criminal justice, for public privileges, and private rights. Now, by the common law, the power to punish contempts of this nature belongs incidentally to courts of justice, and to each house of parliament. No man ever doubted, or denied its existence, as to our

colonial assemblies in general, whatever may have been thought, as to particular exercises of it. Nor is this power to be viewed in an unfavourable light. It is a privilege, not of the members of either house; but, like all other privileges of congress, mainly intended as a privilege of the people, and for their benefit. Mr. Justice Blackstone has, with great force, said, that "laws, without a competent authority to secure their administration from disobedience and contempt, would be vain and nugatory. A power, therefore, in the supreme courts of justice to suppress such contempts, &c., results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal." 3 And the same reasoning has been applied, with equal force, by another learned commentator to legislative bodies. "It would," says he, "be inconsistent with the nature of such a body to deny it the power of protecting itself from injury, or insult. If its deliberations are not perfectly free, its constituents are eventually injured. This power has never been denied in any country, and is incidental to the nature of all legislative bodies. If it possesses such a power in the case of an immediate insult or disturbance, preventing the exercise of its ordinary functions, it is impossible to deny it in other cases, which, although less immediate or violent, partake of the same character, by having a tendency to impair the firm and honest discharge of public duties." 4

§ 844. This subject has of late undergone a great deal of discussion both in England and America; and

1 4 Black. Comm. 283, 284, 285, 286; 1 Black. Comm. 164, 165; Com. Dig. Parliament, G. 2, 5; Burdett v. Abbott, 14 East R. 1; Burdett v. Colman, 14 East R. 163; S. C. 5 Dow. Parl. Cases, 165, 199.

2 Christian's note, 1 Black. Comm. 164.

3 4 Black. Comm. 286.

4 Rawle on the Constitution, ch. 4, p. 48; 1 Kent's Comm. (2d edit.) Lect. 11, p. 221, 235.

has finally received the adjudication of the highest judicial tribunals in each country. country. In each country upon the fullest consideration the result was the same, viz. that the power did exist, and that the legislative body was the proper and exclusive forum to decide, when the contempt existed, and when there was a breach of its privileges; and, that the power to punish followed, as a necessary incident to the power to take cognizance of the offence.1 The judgment of the

1 The learned reader is referred to Burdett v. Abbott, 14 East R. 1; Burdett v. Colman, 14 East R. 163; S. C. 5 Dow. Parl. R. 165, 199; and Anderson v. Dunn, 6 Wheat. R. 204. The question is also much discussed in Jefferson's Manual, § 3, and 1 Tuck. Black. Comm. App. note, p. 200 to 205. See also 1 Black. Comm. 164, 165.- Mr. Jefferson, in his Manual, (§ 3,) in commenting on the case of William Duane for a political libel, has summed up the reasoning on each side with a manifest leaning against the power. It presents the strength of the argument on that side, and, on that account, deserves to be cited at large.

"In debating the legality of this order, it was insisted, in support of it, that every man, by the law of nature, and every body of men, possesses the right of self-defence; that all public functionaries are essentially invested with the powers of self-preservation; that they have an inhe rent right to do all acts necessary to keep themselves in a condition to discharge the trusts confided to them; that whenever authorities are given, the means of carrying them into execution are given by necessary implication; that thus we see the British parliament exercise the right of punishing contempts; all the state legislatures exercise the same power; and every court does the same; that, if we have it not, we sit at the mercy of every intruder, who may enter our doors, or gallery, and, by noise and tumult, render proceeding in business impracticable; that if our tranquillity is to be perpetually disturbed by newspaper defamation, it will not be possible to exercise our functions with the requisite coolness and deliberation; and that we must therefore have a power to punish these disturbers of our peace and proceedings. To this it was answered, that the parliament and courts of England have cognizance of contempts by the express provisions of their law; that the state legislatures have equal authority, because their powers are plenary; they represent their constituents completely, and possess all their powers, except such, as their constitutions have expressly denied them; that the courts of the several states have the same powers by the laws of their states, and those of the federal government by the same state laws

« السابقةمتابعة »