commerce, in depopulating ancient boroughs, and in establishing new cities, and great manufacturing establishments, without any direct parliamentary representation, insensibly changed the structure of the House of Commons, and rendered it, in theory at least, a very inadequate and imperfect organ of the will of the nation. Archdeacon Paley observed, *234 *many years ago,a that about one half of the commons were elected by the people, and the other half came in by purchase, or by the nomination of single proprietors of great estates. So extremely unequal was the popular vote at elections in England, that less than seven thousand voters returned nearly one half of the House of Commons. But not formed or rendered, the feudatory could not rightfully be assessed further without his consent. The royal towns obtained charters of privileges by which they were relieved from arbitrary taxation on paying or rendering the stipulated assessments. When the wants of the crown increased, and further aids were necessary, it was deemed expedient for the king and his council of peers to consult the wishes, and take the consent of the small country freeholders, and the inhabitants of the cities and boroughs; and knights, citizens and burgesses were accordingly summoned to appear by representation in the great council or legislature under the feudal system. The first edict for the election of a representation of the commonalty of the realm, of knights, citizens and burgesses, from counties, cities and boroughs, were issued under the usurpation of Simon Montfort, in the 49 of H. III. The great council of the nation had hitherto consisted of the prelates and barons, assisted by the officers of the state, and the judges. Moral Philosophy, p. 369, edit. 1786. b In 1831, it was asserted, that out of six hundred and fifty-eight members, of which the English House of Commons consisted, the number of four hundred and eighty-seven were elected by one hundred and forty-four peers, and one hundred and twenty-three commoners. In 1832 the English House of Commons was reformed by three several statutes, passed to amend the representation of the people of England and Wales, Scotland and Ireland. Under the first of these statutes, fifty-six English boroughs were totally disfranchised, and thirty boroughs were reduced each to the right of returning only one member. Twenty-two new boroughs were created, with a right to each of returning two members; and Manchester, Birmingham, Leeds and Sheffield, were among the towns invested with that privilege. Sixteen other new boroughs were created with the right to each of returning one member. Thirty-four shires were subdivided in respect to members of parliament, so as to give an increase of sixty-three knights. The qualifications of electors, consisting of freeholders, lessees and copyholders, were altered, and the name of every voter required to be previously registered. The number of members of the reformed House of Commons consists in the aggregate of 658, the same number as before the reformed bill, viz., 417 members for England, 29 for Wales, 53 for Scotland, and 105 for Ireland. By the English reform act of 2 and 3 Wm. 4. c. 45, the qualifications of electors of the commons House of Parliament, for knights of the shires, were substantially as follows: That they must withstanding the great imperfection of the constitution of the English House of Commons, if it were to be tested by the arithmetical accuracy of our own political standards, nevertheless, in all periods of English history, it felt strongly the vigour of the popular principle. While on the continent of Europe the degeneracy of the feudal system, the influence of the papal hierarchy, the political maxims of the imperial or civil law, and the force of standing armies, extinguished the bold and irregular freedom of the Gothic governments, and abolished the representation of the people, the English House of Commons continued to be the asylum of European liberty; and it maintained its station against all the violence of the Plantagenet line of princes, the haughty race of the Tudors, and the unceasing spirit of despotism in the house of Stuart. And when we take into consideration the admirable plan of their judicial polity, and those two distinguished guardians of civil liberty, trial by jury, and the freedom of the press, it is no longer a matter of astonishment that the nation, in full possession of those inestimable blessings, should enjoy greater security of person and property than ever was enjoyed in Athens or Sparta, Carthage or Rome, or in any of the commonwealths of Italy, during the period of the middle ages. I proceed next to consider the privileges and powers of the two houses of congress, both aggregately and separately. The have a freehold or copyhold estate in possession, or as lessee or assignee in possession of the unexpired residue of a term of sixty years, of the clear yearly value in either case of not less than £10, above all rents and charges thereon; or of the unexpired residue in possession of a term of twenty years, of the clear yearly value of £50, above all rents and charges; or be a tenant in occupation of lands, liable to a yearly rent of £50. The elector must also have been duly registered, and, to be entitled to the registry, he must have been in the actual possession of the house, or of the rents and profits thereof, for six months previous to the last day of July in each year. The elector for citizens and burgesses must occupy, as owner or tenant, a house or building, either separately or jointly, with land within the borough, of the clear yearly value of £10, and rated to the poor rate, and been duly registered, and a resident for six months previous to the last day of July in each year. The regulations respecting the registry and the revision of the lists, are specific and minute, to guard more effectually against the destructive evil of fraudulent and spurious votes. No person is entitled to vote unless his name appears on the register of electors, and his qualifications cannot be questioned at the polls, except on three points: (1.) His identity with the person registered; (2.) as to having voted already at the election; (3.) that he continues to possess the registered qualification. congress is to assemble at least once in every year, and such Privileges *235 of of the two houses congress. *Each house is made the sole judge of the election return, and qualifications of its members. The same power is vested in the British House of Commons, and in the legislatures of the several states; and there is no other body known to the constitution, to which such a power might safely be trusted. It is requisite to preserve a pure and genuine representation, and to control the evils of irregular, corrupt and tumultuous elections; and as each house acts in these cases in a judicial character, its decisions, like the decisions of any other court of justice, ought to be regulated by known principles of law, and strictly adhered to, for the sake of uniformity and certainty. A majority of each house constitutes a quorum to do business, but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each house may provide. Each house, likewise, determines the rules of its proceedings, and can punish its members for disorderly behaviour; and, with the concurrence of two-thirds, expel a member. Each house is likewise bound to keep a journal of its proceedings, and from time to time publish such parts as do not require secrecy, and to enter the yeas and nays on the journal, on any question, when desired by one-fifth of the members present. Neither house, during the session of congress, can, without the assent of the other, adjourn for more than three days, nor to any other place than that in which In the English House of Commons forty members are requisite to form a quorum for business; but in 1833 the requisite number was reduced to twenty, so far as related to the morning sittings, appropriated to private business and petitions. The House of Lords may proceed to business if only three lords be present. The power of expulsion is in its nature discretionary, and its exercise of a more summary character than the power of judicial tribunals. Case of J. Smith, 1807. The cases are numerous in which members of the House of Commons in England have been called to account and punished by admonition, imprisonment or expulsion, as the case might require, for offensive words or conduct before the House. May's Treatise on the Law of Parliament, p. 80. • Art. 1. sec. 5. 1 the two houses shall be sitting. The members of both houses are likewise privileged from arrest during their attendance on congress, and in going to and returning from the same, except in cases of treason, felony and breach of the peace. These privileges of the two houses are obviously necessary for their preservation and character; and, what is still more important to the freedom of deliberation, no member can be questioned out of the house for any speech or debate therein.c There is no power expressly given to either house of congress to punish for contempts, except when committed *by their own members; but in the case of Anderson, *236 who was committed, by order of the House of Representatives, for a contempt of the house, and taken into custody by the sergeant-at-arms, an action of trespass was brought against the officer, and the question on the power of the house to commit for a contempt, was carried by writ of error to the Supreme Court of the United States. The court decided, that the house had that power, and that it was an im Art. 1. sec. 5. Art. 1. sec. 6. This privilege is confined to the members, and does not extend to their servants, and it applies as well to arrests on execution as to arrests on mesne process. The arrest is illegal and void, and after the cessation of the privilege, the member may be arrested de novo for the same cause. If elected a member while in custody, on civil process of any kind, his privilege as a member operates to entitle him to his discharge during the continuance of the privilege. This is the English parliamentary law. May's Treatise, &c. pp. 93. 97. But by several statutes in the reign of Geo. III. (10 Geo. III. 45 Geo. III. 47 Ġeo. III.) privilege is no stay of proceedings in civil suits, down to judgment and execution, with the exception of personal arrest and imprisonment, nor does the privilege extend to commitments for contempts in courts of justice. Wellesley's case and Charlton's case, cited in May's Treatise, &c. 108, 109. Art. 1. sec. 6. The question whether a senator or member of the House of Representatives was liable to impeachment for conduct in his legislative capacity, is considered by Mr. Justice Story, in his Commentaries, vol. ii. pp. 259–262; and the weight of authority, and the reason and policy of the thing, are decidedly in the negative, and in favour of the principle that members of congress should be exempt from impeachment and punishment, for acts done in their collective or congressional capacity. Though a member of congress is not responsible out of congress for words spoken there, though libellous upon individuals; yet if he causes his speech to be published, he may be punished as for a libel by action or indictment. This is the English and the just law. The cases of Lord Abingdon and of McCreevy, 3 Eq. N. P. Cases, 228, 1 M. & S. 278. d Anderson v. Dunn, 6 Wheaton, 204. plied power, and of vital importance to the safety, character and dignity of the house. The necessity of its existence and exercise was founded on the principle of self-preservation; and the power to punish extends no further than imprisonment, and that will continue no longer than the duration of the power that imprisons. The imprisonment will terminate with the adjournment or dissolution of congress.a The House of Representatives has the exclusive right of originating all bills for raising revenue, and this is the only privilege that house enjoys in its legislative character, which is not shared equally by the other; and even those bills are amendable by the Senate in its discretion. The two houses are an entire and perfect check upon each other, in all business appertaining to legislation; and one of them cannot even The duration of imprisonment for contempts terminates also in England upon the close of the existing session of parliament. Stockdale v. Hanford, cited in May's Treatise on the Privileges of Parliament, p. 75. The decision of the Supreme Court, in the case of Anderson, is accompanied with a course of reasoning which would seem to be sufficient to place the authority of either house of congress to punish contempts and breaches of privileges on the most solid foundation, independent of the absolute authority of the decision. The constitutional exercise of the same power by each house of parliament has been repeatedly vindicated in Westminster Hall in the most masterly manner. Lord Ch. J. De Grey, in Rex v. Crosby, 3 Wils. Rep. 188. Lord Ellenborough, in Burdett v. Abbott, 14 East's Rep. 1. It is a power inherent in all legislative assemblies, and is essential to enable them to execute their great trusts with freedom and safety; and it has been frequently exercised, not only in congress, but by the respective branches of the state legislatures, and may be considered as indisputably acknowledged and settled. Story's Commentaries, vol. ii. 305-317. What acts shall amount to a contempt of either house of congress are not defined, and must be left to the judgment and discretion of the house, under the circumstances of each case. In England, libels upon the character or proceedings of either house of parliament, or any of its members, are regarded as breaches of privilege, and punishable as for contempts, by imprisonment. May's Treatise on the Law and Privileges of Parliament, p. 62. Burdett v. Abbott, supra. But with us, such a course of redress has not been adopted, and the house that was injured would probably, if redress was sought, direct a public prosecution by indictment. The act of congress of 14th July, 1798, made it an indictable offence to libel the government, Congress or President of the United States. See infra, vol. ii. 24. (1) b Art. 1. sec. 7. (1) See the case of Howard v. Gosset, 10 Ad. & EU. N. S. 359. In this case the powers and privileges of parliament were very elaborately and ably discussed; but the Court of Exchequer Chamber, in the final decision, placed itself on the narrow ground that the Speaker's warrant must be construed as process of a Superior Court, not appearing to go beyond its jurisdiction. |