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constitution does not fix the number of members of the United States supreme court. The great act of September 24, 1789, which filled in the outline drawn by the constitution on this subject, provided that it should be composed of one chief justice and five associate justices. By the act of April 29, 1802, a sixth associate justice was created, and an act of March 3, 1837, increased their number to the present figure of eight.' To decide a case six justices must be present. The act of 1789 created thirteen district courts with one judge each and three circuit courts. The latter form the courts of first appeal. Their organization has been modified in the course of years. There are now nine circuits. One is assigned to each justice of the supreme court. Every circuit has, besides, its own circuit judge, and finally every district judge, within certain limitations, can exercise the office of circuit judge. Each one of these judges may, alone or in common with one of the two other judges, hold circuit court, and therefore in different parts of the same district there may be held simultaneously different circuit courts.

as to whether the removal of a federal judge by abolishing his office is constitutional. During the presidency of Jefferson, congress claimed this right, and some of the states have adopted the same course in regard to irremovable judges.

1 It seems doubtful whether an attempt will be made to allay the increasing clamor concerning the extraordinary over-burdening of the supreme court, by a further increase of the number of associate justices. Manifold attempts have been made to find a good way out of the present wretched state of things, but more or less weighty objections have hitherto been made to each plan proposed.

2 The term of the supreme court does not correspond with the calendar year. Its commencement has been repeatedly changed. By act of July 23, 1866, it was fixed for the second Monday in October. Originally the court was required to hold two sessions a year. This provision was repealed by act of April 29, 1802. These facts should be considered if mistakes in the year of a judicial decision are to be avoided.

3 Act of April 10, 1869.

The number of district judges has increased to one hundred and sixteen. By act of February 24, 1855, the court of claims was created.1

RIGHTS, PRIVILEGES AND LIMITATIONS OF THE FEDERAL POWERS AND OF THE SEPARATE MEMBERS THEREOF.

§ 28. CONGRESS. The constitution expressly grants to both houses of congress the autonomy which in all constitutional states is deemed a necessary prerequisite of legislative bodies. Before all, "each house shall be the judge [of the validity] of the elections, returns and qualifications of its own members" (art. I., sec. 5, § 1).2 It

1 The organization of the court of claims was altered by act of March 3, 1863. It is at present composed of a chief justice and four associate judges, but only two are necessary to decide a case. The court sits in Washington. The annual session begins on the first Monday in December and continues till the cases before the court are disposed of. The following two provisions contain the most essential features in regard to its authority: It is empowered "to hear and determine all claims founded upon any law of congress, or upon any regulation of an executive department, or upon any contract, expressed or implied, with the government of the United States, and all claims which may be referred to it by either house of congress," and "all set-offs, counter-claims for damages, whether liquidated or unliquidated, or other demands whatsoever, on the part of the government of the United States against any person making claim against the government in said court." Although the court must in all these cases decide," yet it has been claimed in the house of representatives that congress could set aside these decisions, inasmuch as it could refuse to make appropriations to pay the judgments against the United States. The house adopted the motion of Washburne, of Illinois, who supported this claim, but, neither from the motion itself, nor from the brief debates, does it appear whether the house pledged itself to this undoubtedly untenable view. See Cong. Globe, 2d sess. 38th Cong., 306. Appeals from the court of claims go to the supreme court. See W. A. Richardson, History, Jurisdiction and Practice of the Court of Claims, Washington, 1882.

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2 The returns" or "certificates of election" are regarded as

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. 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.1 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 663689. 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

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