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Supreme Court of the United States, in the case alluded to, contains so elaborate and exact a consideration of the whole argument on each side, that it will be far more satisfactory to give it in a note, as it stands in the printed opinion, than to hazard, by any abridgment, impairing the just force of the reasoning.1

adopted in each state, by a law of congress; that none of these bodies, therefore, derive those powers from natural or necessary right, but from express law; that congress have no such natural or necessary power, or any powers, but such as are given them by the constitution; that that has given them, directly, exemption from personal arrest, exemption from question elsewhere, for what is said in their house, and power over their own members and proceedings; for these no further law is necessary, the constitution being the law; that, moreover, by that article of the constitution, which authorizes them to make all laws necessary and proper for carrying into execution the powers vested by the constitution in them,' they may provide by law for an undisturbed exercise of their functions, for example, for the punishment of contempts, of affrays or tumult in their presence, &c ; but, till the law be made, it does not exist, and does not exist, from their own neglect; that, in the mean time, however, they are not unprotected, the ordinary magistrates and courts of law being open and competent to punish all unjustifiable disturbances or defamations; and even their own sergeant, who may appoint deputies ad libitum to aid him, is equal to small disturbances; that in requiring a a previous law, the constitution had regard to the inviolability of the citizen, as well as of the member; as, should one house in the regular form of a bill, aim at too broad privileges, it may be checked by the other, and both by the president; and also as, the law being promulgated, the citizen will know how to avoid offence. But if one branch may assume its own privileges without control; if it may do it on the spur of the occasion, conceal the law in its own breast, and, after the fact committed, makes its sentence both the law and the judgment on that fact; if the offence is to be kept undefined, and to be declared only ex re nata, and, according to the passions of the moment, and there be no limitation either in the manner or measure of the punishment, the condition of the citizen will be perilous indeed."

The reasoning of Lord Chief Justice De Grey in Rex v. Brass Crosby, (3 Wilson's R. 188,) and of Lord Ellenborough in Burdett v. Abbott, (14 East R. 1,) is exceedingly cogent and striking against that favoured by Mr. Jefferson. It deserves, and will requite an attentive perusal. See also Burdett v. Abbott, 4 Taunt. R. 401; 4 Dow's Parl. Rep. 165.

1 It is necessary to premise, that the suit was brought for false imprisonment by a party, who had been arrested under a warrant of the

§ 845. This is not the only case, in which the house of representatives has exerted the power to arrest, and punish for a contempt committed within the walls of the

speaker of the house of representatives, by the sergeant-at-arms, for an alleged contempt of the house, (an attempt to bribe a member,) and the cause was decided upon a demurrer to the justification set up by the officer. After a preliminary remark upon the range of the argument by the counsel, Mr. Justice Johnson, in delivering the opinion of the Court proceeded as follows:

"The pleadings have narrowed them down to the simple inquiry, whether the house of representatives can take cognizance of contempts committed against themselves, under any circumstances? The duress complained of was sustained under a warrant issued to compel the party's appearance, not for the actual infliction of punishment for an offence committed. Yet it cannot be denied, that the power to institute a prosecution must be dependent upon the power to punish. If the house of representatives possessed no authority to punish for contempt, the initiat ing process issued in the assertion of that authority must have been illegal; there was a want of jurisdiction to justify it.

"It is certainly true, that there is no power given by the constitution to either house to punish for contempts, except when committed by their own members. Nor does the judicial or criminal power given to the United States, in any part, expressly extend to the infliction of punishment for contempt of either house, or any one co-ordinate branch of the government. Shall we, therefore, decide, that no such power exists?

"It is true, that such a power, if it exists, must be derived from implication, and the genius and spirit of our institutions are hostile to the exercise of implied powers. Had the faculties of man been competent to the framing of a system of government, which would have left nothing to implication, it cannot be doubted, that the effort would have been made by the framers of the constitution. But what is the fact? There is not in the whole of that admirable instrument a grant of powers, which does not draw after it others, not expressed, but vital to their exercise; not substantive and independent, indeed, but auxiliary and subordinate.

"The idea is utopian, that government can exist without leaving the exercise of discretion somewhere. Public security against the abuse of such discretion must rest on responsibility, and stated appeals to public approbation. Where all power is derived from the people, and public functionaries, at short intervals, deposite it at the feet of the people, to be resumed again only at their will, individual fears may be alarmed by the monsters of imagination, but individual liberty can be in little danger.

house. The power was exerted' in the case of Robert Randall, in December, 1795, for an attempt to corrupt a member; 2 in 1796, in the case of

a chal

"No one is so visionary, as to dispute the assertion, that the sole end and aim of all our institutions is the safety and happiness of the citizen. But the relation between the action and the end is not always so direct and palpable, as to strike the eye of every observer. The science of government is the most abstruse of all sciences; if, indeed, that can be called a science, which has but few fixed principles, and practically consists in little more, than the exercise of a sound discretion, applied to the exigencies of the state, as they arise. It is the science of experi


"But if there is one maxim, which necessarily rides over all others, in the practical application of government, it is, that the public functionaries must be left at liberty to exercise the powers, which the people have intrusted to them. The interests and dignity of those, who created them, require the exertion of the powers indispensable to the attainment of the ends of their creation. Nor is a casual conflict with the rights of particular individuals any reason to be urged against the exercise of such powers. The wretch beneath the gallows may repine at the fate, which awaits him; and yet it is no less certain, that the laws, under which he suffers, were made for his security. The unreasonable murmurs of individuals against the restraints of society have a direct tendency to produce that worst of all despotisms, which makes every individual the tyrant over his neighbour's rights.

"That the safety of the people is the supreme law,' not only comports with, but is indispensable to, the exercise of those powers in their public functionaries, without which that safety cannot be guarded. On this principle it is, that courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates, and, as a corollary to this proposition, to preserve themselves and their officers from the approach of insults or pollution.

"It is true, that the courts of justice in the United States are vested, by express statute provision, with power to fine and imprison for contempts; but it does not follow, from this circumstance, that they would not have exercised that power without the aid of the statute, or not, in cases, if such should occur, to which such statute provision may not extend. On the contrary, it is a legislative assertion of this right, as incidental to a grant of judicial power, and can only be considered

1 By a vote of 78 yeas against 17 nays.

2 1 Tuck. Black. Comm. App. 200 to 205, note; Jefferson's Manual,

lenge given to a member, which was held a breach of privilege; and in May, 1832, in the case of Samuel Houston, for an assault upon a member for words spoken

either as an instance of abundant caution, or a legislative declaration, that the power of punishing for contempts shall not extend beyond its known and acknowledged limits of fine and imprisonment.

"But it is contended, that if this power in the house of representatives is to be asserted on the plea of necessity, the ground is too broad, and the result too indefinite; that the executive, and every co-ordinate, and even subordinate, branch of the government, may resort to the same justification, and the whole assume to themselves, in the exercise of this power, the most tyrannical licentiousness.

"This is unquestionably an evil to be guarded against, and if the doctrine may be pushed to that extent, it must be a bad doctrine, and is justly denounced.

"But what is the alternative? The argument obviously leads to the total annihilation of the power of the house of repsesentatives to guard itself from contempts; and leaves it exposed to every indignity and interruption, that rudeness, caprice, or even conspiracy, may meditate against it. This result is fraught with too much absurdity not to bring into doubt the soundness of any argument, from which it is derived. That a deliberate assembly, clothed with the majesty of the people, and charged with the care of all, that is dear to them; composed of the most distinguished citizens, selected and drawn together from every quarter of a great nation; whose deliberations are required by public opinion to be conducted under the eye of the public, and whose decisions must be clothed with all that sanctity, which unlimited confidence in their wisdom and purity can inspire; that such an assembly should not possess the power to suppress rudeness, or repel insult, is a supposition too wild to be suggested. And accordingly to avoid the pressure of these considerations, it has been argued, that the right of the respective houses to exclude from their presence, and their absolute control within their own walls, carry with them the right to punish contempts committed in their presence; while the absolute legislative power given to congress within this district, enables them to provide by law against all other insults, against which there is any necessity for providing.

"It is to be observed, that so far as the issue of this cause is implicated, this argument yields all right of the plaintiff in error to a decision in his favour; for, non constat, from the pleadings, but that this warrant issued for an offence committed in the immediate presence of the house.

1 Jefferson's Manual, § 3.

in his place, and afterwards printed, reflecting on the character of Houston. In the former case, the house punished the offence by imprisonment; in the

"Nor is it immaterial to notice, what difficulties the negation of this right in the house of representatives draws after it, when it is considered, that the concession of the power, if exercised within their walls, relinquishes the great grounds of the argument, 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 there 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

1 See the Speeches of Mr. Doddridge and Mr. Burges on this occasion. VOL. II. 40

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