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

latter, by a reprimand by the speaker. So in 1800, in the case of William Duane, for a printed libel against the senate, the party was held guilty of a contempt, and

contumacious. And even to the duration of imprisonment a period is imposed by the nature of things; since the existence of the power, that imprisons, is indispensable to its continuance; and although the legislative power continues perpetual, the legislative body ceases to exist on the moment of its adjournment or periodical dissolution. It follows, that imprisonment must terminate with that adjournment.

"This view of the subject necessarily sets bounds to the exercise of a caprice, which has sometimes disgraced deliberative assemblies, when under the influence of strong passions or wicked leaders, but the instances of which have long since remained on record only, as historical facts, not as precedents for imitation. In the present fixed and settled state of English institutions, there is no more danger of their being revived, probably, than in our own.

"But the American legislative bodies have never possessed, or pretended to, the omnipotence, which constitutes the leading feature in the legislative assembly of Great Britain, and which may have led occasionally to the exercise of caprice, under the specious appearance of merited

resentment.

"If it be inquired, what security is there, that with an officer avowing himself devoted to their will, the house of representatives will confine its punishing power to the limits of imprisonment, and not push it to the infliction of corporeal punishment, or even death, and exercise it in cases affecting the liberty of speech and of the press? The reply is to be found in the consideration, that the constitution was formed in and for an advanced state of society, and rests at every point on received opinions and fixed ideas. It is not a new creation, but a combination of existing materials, whose properties and attributes were familiarly understood, and had been determined by reiterated experiments. It is not, therefore, reasoning upon things, as they are, to suppose, that any deliberative asembly, constituted under it, would ever assert any other rights and powers, than those, which had been established by long practice, and conceded by public opinion. Melancholy, also, would be that state of distrust, which rests not a hope upon a moral influence. The most absolute tyranny could not subsist, where men could not be trusted with power, because they might abuse it, much less a government, which has no other basis, than the sound morals, moderation, and good sense of those, who compose it. Unreasonable jealousies not only blight the pleasures, but dissolve the very texture of society.

"But it is argued, that the inference, if any, arising under the constitution, is against the exercise of the powers here asserted by the house

punished by imprisonment. Nor is there any thing peculiar in the claim under the constitution of the United States. The same power has been claimed, and

of representatives; that the express grant of power to punish their members respectively, and to expel them, by the application of a familiar maxim, raises an implication against the power to punish any other, than their own members.

"This argument proves too much; for its direct application would lead to the annihilation of almost every power of congress. To enforce its laws upon any subject, without the sanction of punishment, is obviously impossible. Yet there is an express grant of power to punish in one class of cases and one only; and all the punishing power exercised by congress in any cases, except those, which relate to piracy and offences against the laws of nations, is derived from implication. Nor did the idea ever occur to any one, that the express grant in one class of cases repelled the assumption of the punishing power in any other.

"The truth is, that the exercise of the powers given over their own members was of such a delicate nature, that a constitutional provision became necessary to assert, or communicate it. Constituted, as that body is, of the delegates of confederated states, some such provision was necessary to guard against their mutual jealousy, since every proceeding against a representative would indirectly affect the honour or interests of the state, which sent him.

"In reply to the suggestion, that, on this same foundation of necessity, might be raised a superstructure of implied powers in the executive, and every other department, and even ministerial officer of the government, it would be sufficient to observe, that neither analogy nor precedent, would support the assertion of such powers in any other, than a legislative or judicial body. Even corruption any where else would not contaminate the source of political life. In the retirement of the cabinet, it is not expected, that the executive can be approached by indignity or insult; nor can it ever be necessary to the executive, or any other department, to hold a public deliberative assembly. These are not arguments; they are visions, which mar the enjoyment of actual blessings, with the attack or feint of the harpies of imagination.

"As to the minor points made in this case, it is only necessary to observe, that there is nothing on the face of this record, from which it can appear, on what evidence this warrant was issued. And we are not to presume, that the house of representatives would have issued it without duly establishing the fact charged on the individual. And, as to

1 Journ. of Senate, 27th March, 1800; Jefferson's Manual, § 3. See also Burdett v. Abbott, 14 East, 1.

exercised repeatedly, under the state governments, independent of any special constitutional provision, upon the broad ground stated, by Mr. Chief Justice Shippen, that the members of the legislature are legally, and inherently possessed of all such privileges, as are necessary to enable them, with freedom and safety, to execute the great trust reposed in them by the body of the people, who elected them.1

§ 846. The power to punish for contempts, thus asserted both in England and America, is confined to punishment during the session of the legislative body, and cannot be extended beyond it. It seems, that the power of congress to punish cannot, in its utmost extent, proceed beyond imprisonment; and then it terminates with the adjournment, or dissolution of that body. Whether a fine may not be imposed, has been recently made a question in a case of contempt

the distance, to which the process might reach, it is very clear, that there exists no reason for confining its operation to the limits of the District of Columbia. After passing those limits, we know no bounds, that can be prescribed to its range, but those of the United States. And why should it be restricted to other boundaries? Such are the limits of the legislating powers of that body; and the inhabitant of Louisiana or Maine may as probably charge them with bribery and corruption, or attempt, by letter, to induce the commission of either, as the inhabitant of any other section of the Union. If the inconvenience be urged, the reply is obvious: there is no difficulty in observing that respectful deportment, which will render all apprehension chimerical."

See also Rex v. Brass Crosby, 3 Wilson R. 188. In the convention a proposition was made and referred to the select committee appointed to draft the constitution giving authority to punish for contempts, and enumerating them. The committee made no report on the subject. Journ. of Convention, 20th Aug. 263, 264.

1 Bolton v. Martin, 1 Dall. R. 296. See also House of Delegates in 1784, the case of John Warden, 1 Elliot's Debates, 69; Coffin v. Coffin, 4 Mass. R. 1, 34, 35.

2 Dunn v. Anderson, 6 Wheat. R. 204, 230, 231.

3 Dunn v.

Anderson, 6 Wheat. R. 204, 230, 231; 1 Kent's Comm. Lect. 11, p. 221. 4 In 1831.