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is the province of each house to fix its own order of business, but the constitution makes a majority of all the members elected necessary to do any business. A less number may adjourn from day to day. In order that their labors may not be brought to a standstill, either by indifference or evil intent, the appearance of the absent members can be enforced in the manner provided and under penalty of the punishments imposed by the respective houses. The power to fix the order of business naturally implies the power to invest the chairman with the necessary disciplinary power to maintain order during the sessions. When it is further provided that each house may "punish its members for disorderly conduct,” it is of course evident that something more is intended and a wider authority bestowed. This becomes entirely certain, when finally the right is expressly given them to

“prima facie evidence" of a legal election, and a further investigation takes place, as a rule, only when the opposing candidate contests the election. If a seat in the house of representatives be contested, the contestant must notify his opponent within a fixed period of time, and inform him in the way prescribed by law that, and upon what grounds, he intends to make the contest. The two parties must then themselves take measures to get the testimony. Ninety days are granted them within which to do so. The depositions of the witnesses are sent to the house. See, more fully, Rev. Stat., secs. 105130. See, also, F. C. Brightly, A Collection of Leading Cases in the Law of Elections in the United States, Phila., 1871; D. A. McKnight, Electoral System of the United States, Phila.. 1878; D. C. McMillan, Elective Franchise in the United States, N. Y., 1878; G. W. McCrary, American Law of Elections, 2d ed., Chicago, 1880: F. Giauque, United States Election and Naturalization Laws, Cin., 1880.

The idea of "qualifications" was considerably enlarged by the civil war and by the third section of the fourteenth amendment, already cited. By the act of July 2, 1862, all federal officials were obliged to swear that they had in no manner whatever voluntarily taken part in the rebellion. This "test oath" was repealed in May, 1884.

"expel a member" by a two-thirds vote (art I., sec. 5, $2). In times of very great excitement, it has nevertheless been asserted that all these provisions give each house only a power over its members which is disciplinary in the strict sense of the word, and therefore can be put in force only as to improper acts committed during the sessions. Since there has been repeated occasion to take steps against members of each house under each of these two clauses, and since the majority has never taken this standpoint, it may now be regarded as finally settled that that interpretation is correct which is the broader, and at the same time, according to ordinary speech, unquestionably the more natural one. Both houses of congress must have been granted every power needed to guard themselves and their members against any impropriety on the part of a member and to preserve their dignity and reputation among the people. It is wholly for them to say what conduct they are to regard as dishonorable enough to require expulsion.2 An appeal from their decision lies only to the court of public opinion, a court which brings in its verdict at the elections. What other punishments the houses may impose upon members is, on the other hand, a question which has never had an exact and unquestioned answer and never can have. Although the power is in form unconditional, it was certainly not intended to be unlimited. Custom has confined all punishments imposed to those not inconsistent with personal dignity, and this corresponds to the intention of the constitution.

1 See my Constitutional History, V., 324.

2 The misconduct need not be legally punishable. See the case of Senator W. Blount, in 1797. Story, $ 838. Nor need it have been committed during the session of congress or at the seat of government.

The congressional power of punishment is not limited to members of the two houses, although the constitution contains no further provision on this point. The extension of the power rests upon the fact that both houses exercise judicial functions in certain cases, and by the common law every court has the power of punishment, in order to protect itself against insult, contempt and disobedience. The supreme court decided, in Kilbourn vs. Thompson (103 U. S., 168; Otto, XIII.), that the lower house may punish a contumacious witness whom it has summoned in reference to an impeachment or other matter which falls under one of the provisions of the constitution. On the other hand, it has decided that the constitution granted neither house the right of punishment simply "for contempt." Whether the right existed in other cases than those enumerated, it did not care to decide on this occasion, but it laid down the general principle that it could never exist when, as in the case before it, the house had overstepped its constitutional jurisdiction. The extensive disciplinary and penal powers of

1 This, of course, applies also to the senate.

2 Kilbourn had been committed to prison because he refused to produce his business account-books and correspondence.

As important as this decision is, it does not clear up all doubt on this question. And the question is of great importance in both principle and practice. Thus it leaves it doubtful whether the house of representatives of 1832 was authorized to have Samuel Houston arrested by its sergeant-at-arms, brought before its bar and censured, because he had beaten Stanberry, of Ohio, on the public street, on account of a speech delivered by Stanberry in the house. See Benton's Abridgment of the Debates of Congress, II., pp. 644–660 and 663– 689. In a much older decision (1821), in Anderson vs. Dunn (Wheaton, VI., 204–235), the supreme court has undoubtedly recognized the right of the house of representatives to punish a "breach of its privileges" by arrest, censure and imprisonment, but not beyond the close of the session, and if the beating and unjustifiable imprisonment of the

both houses over their respective members are counterbalanced by the far-reaching immunity granted the members as to all other courts and public authorities by the next section, the sixth. The clauses in point are: The senators and representatives "shall in all cases be privileged from arrest "-treason, felony and breach of the peace excepted-"during their attendance at the session of their respective houses," and they shall not be called to account at any place whatsoever "for any speech or debate in either house." The word session is to be understood as meaning the whole session, and it includes the time "eundo et ad propria redeundo." So, too, the word arrest must not be interpreted here in its strictest sense. Summonses to appear as a witness or juror, under penalty, are not regarded as arrests. Again, the second clause is not, according to one view of it, to be interpreted in its strict verbal sense. The immunity is not limited to the speeches and debates. It extends also to the votes cast, the reports made, and in general to every official act as a member of one of the two houses.

In the case already cited of Kilbourn vs. Thompson, the supreme court dismissed the suit against the members of the committee which had issued the summons and declared the sergeant-at-arms alone liable. It is not, therefore, entirely without doubt how the clause is to be interpreted from the other standpoint. It is admitted that the privilege relates only to what is said or done sergeant-at-arms is such a breach of its privileges, then the beating of a member is naturally much more so. But in the more recent decision the supreme court seems no longer to rely upon the reasoning on which it based its decision in the earlier case.

1. Except treason, felony and breach of the peace." This clause is so construed that all "indictable offenses," as well as constructive breaches of the peace, are included, and consequently the protection against arrest extends only to civil actions.

strictissime in the fulfillment of official duties. It is questionable, however, how this can be reconciled with the publication of speeches, reports, etc. The official publications, directed by either house or by the law, are now protected, even in England, against any claim for damages. But in the United States it is commonly assumed that a member of congress is at liberty to send to his constituents in printed form whatever he has said in congress, without exposing himself thereby to suit for slander, libel, etc. There are, nevertheless, older judicial decisions holding a directly opposite view. The question has not yet been brought to a definite issue by a decision of the supreme court.

Congressmen enjoy no further privileges. The constitution provides, however, that a seat in the federal legislature shall not be an unpaid honorary office, but that the senators and representatives shall receive compensation for their services. The amount is fixed by law, and it is paid out of the treasury of the United States. By the act of March 3, 1873, this salary of congressmen and territorial delegates was raised to $7,500 per annum, besides actual traveling expenses once each session on the most direct route to the seat of government. Public opinion condemned this law with such emphasis that it was repealed January 22, 1874, and the act of July 28, 1866, was again put in force. Under it the salary is $5,000 per annum, with mileage at twenty cents per mile for each journey to and from the regular sessions.

The privileges and rights granted congressmen, as well as the legal limitations to which they are subjected, have been regulated with a view to their office as law-makers. Their peculiar position is due to the fact that the interests of the state require that their independence be assured, so far as law can assure it. In fulfilling their duties to

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