DISCIPLINARY POWER OF LEGISLATIVE ASSEMBLIES. 



195 



erate decision as well on private affairs of a 

 civil nature as on public affairs. 



These assemblies are designated by various 

 names. In the United States, the Federal As- 

 sembly is called Congress, and consists of a 

 Senate and House of Representatives the lo- 

 cal bodies are known as State Legislatures, and 

 consist likewise of a Senate and House of Rep- 

 resentatives ; in Great Britain, the legislative 

 assembly is called Parliament, and is composed 

 of a House of Lords and a House of Com- 

 mons ; in Germany, the legislative assembly 

 consists of two Houses, the Bundesrath, or 

 Federal Council, which represents the states, 

 and the Reichstag, or Diet of the Realm, which 

 represents the German nation ; in France, it is 

 known as the National Assembly, and is com- 

 posed of two Houses, the Senate and Chamber 

 of Deputies ; in the Netherlands, it is called the 

 First and Second Chambers of the States-Gen- 

 eral. 



ASSEMBLIES, HOW CREATED. The manner of 

 creating these assemblies is not really similar 

 in any two nations. In the United States the 

 members of the House of Representatives of 

 Congress are chosen in districts by universal 

 suffrage. The members of the Senate are 

 chosen by the State Legislatures, each House 

 of which nominates a candidate separately, 

 and unitedly they elect. It is evident that, 

 among the members of an assembly thus cre- 

 ated, there is a perfect equality of rights and 

 powers, and an equal independence of each 

 other. This independence and sovereignty, 

 likewise, is limited by the provisions of the 

 Constitution under which the body is created, 

 and the rules of order and of business which it 

 may adopt to regulate and control its actions. 



THEIR POWERS. In some sections of the 

 Constitution of the United States, the powers 

 of Congress as a legislative assembly are ex- 

 pressly denned ; in others, the steps necessary 

 to be taken for the election and organization 

 of the members into a constitutional assembly 

 are authorized, and certain incidental powers 

 over the conduct of members are granted. It 

 is in accordance with these incidental powers 

 that there have taken place in the Congress of 

 the United States some of the details of the 

 subject now under consideration. The Con- 

 stitution says : " Section 5. . . but a smaller 

 number (than a quorum) may adjourn from day 

 to day, and may be authorized to compel the 

 attendance of absent members in such manner 

 and under such penalties as each House may 

 provide. Each House may determine the rules 

 of its proceedings, punish its members for dis- 

 orderly behavior, and, with the concurrence of 

 two thirds, expel a member." " Section 6. . . 

 they shall in all cases, except treason, felony, 

 and breach of the peace, be privileged from ar- 

 rest, during their attendance at the session of 

 their respective Houses, and in going to and 

 returning from the same ; and for any speech 

 or debate in either House they shall not be 

 questioned in any other place." 



These general provisions of the Constitution 

 grant the authority to each House of Congress 

 to adopt limited regulations over the conduct 

 of its members. It may be said, on the one 

 hand, that the rules of each House derived 

 their force from this grant, while, on the other, 

 it may be asserted, as a general principle, that 

 no such grant was necessary, and that from 

 the nature and objects of each House when 

 convened the rules of its adoption were of sov- 

 ereign authority. Indeed, it would seem that 

 many of the rules of the British Parliament 

 are based upon this latter view. In questions 

 of order the appeal is made to precedents as 

 well as to the law ; for its rules have not been 

 discussed and voted upon within an hour. 

 Their traces are lost in the centuries long past. 

 Indeed, the principle seems to be established 

 in the United States, dishing* does not hesi- 

 tate to say, " It may be laid down that the es- 

 tablishment, in general terms, of a legislative 

 department, is equivalent to a general grant to 

 each branch composing it, of all the powers 

 and privileges which are necessarily incident 

 to a legislative assembly." On the other hand, 

 Mr. Jefferson t lays down the doctrine that the 

 Federal Government being one of limited pow- 

 ers, neither branch of Congress can exercise 

 any powers but those which are clearly dele- 

 gated to it by the Constitution ; and that un- 

 til they make a law for that purpose, under 

 that provision of the Constitution which au- 

 thorizes them to make all laws necessary and 

 proper for carrying into effect the powers 

 vested in them by that instrument, neither 

 House has any authority to commit for con- 

 tempt. Since this view was presented, more 

 than half a century has elapsed, yet no law 

 has been passed, and commitments have been 

 frequently made. The Constitution itself seems 

 to make a distinction between a grant of pow- 

 er to legislate on specified subjects, and the 

 power incidental to a legislative assembly to 

 preserve its organization, and treats of them in 

 separate sections, whereas Mr. Jefferson does 

 not observe the distinction, but applies to the 

 latter an argument which bears on the former. 

 Gushing regards the doctrine above quoted as 

 established by usage and also by the cases of 

 Burdett vs. Abbott t and Anderson vs. Dunn. 

 He also refers to a resolution adopted June, 

 1777, by the old Congress of the Confederation, 

 in which the power of a legislative body to 

 punish for contempt, as incidental to its pow- 

 er to legislate, was most forcibly expressed and 

 maintained. One of its members had been 

 challenged to fight, in consequence of words 

 spoken in debate, and the following resolution 

 was adopted : 



Resolved, That Congress have, and always had, au- 

 thority to protect their members from insult, for any- 

 thing said or done in Congress in the exercise of their 



* "Law and Practice of Legislative Assemblies," 542. 



t "Manual," 3. 



% East's" Reports,"' vol. xiv. 



Wheaton's " Collection/' vol. vi. 



