DISCIPLINARY POWER OF LEGISLATIVE ASSEMBLIES. 



197 



conduct, either civil, moral, or official, which, 

 though not strictly an attack on the House 

 itself, is of such a nature as to render the in- 

 dividual a disgrace * to the body of which he 

 is a member. Misconduct of the members to- 

 ward one another consists of insulting remarks 

 in debate, personal assaults, threats, challenges, 

 etc., in reference to which, besides the ordi- 

 nary remedies at law or otherwise, the assem- 

 bly interferes to protect the member who is 

 injured, insulted, or threatened. Offenses by 

 members toward other persons of which the 

 assembly has cognizance, consist of injurious 

 and slanderous assertions, either in speech or 

 by writing. The offenses against a legislative 

 assembly, committed by persons who are not 

 members, embrace all offenses against its mem- 

 bers individually, all breaches of privilege, 

 whether personal or collective, and all willful 

 obstructions to its regular proceedings and to 

 the free, independent, and full performance of 

 its various functions. Like every other tri- 

 bunal, a legislative assembly is authorized to 

 punish persons, whether members or others, 

 who are Iguilty of any contempt toward it by 

 disorderly or contumacious behavior in its 

 presence, or disobedience of its orders.t 



CASES PBESEXTED. Some of these offenses 

 have been acted on by one or the other House 

 of Congress. In 1828 Russel Jarvis committed 

 an assault on the private secretary of President 

 John Q. Adams, in the Rotunda of the Capitol, 

 immediately after he had delivered a message 

 from the President to the House, and while he 

 was proceeding with another message to the 

 Senate. A committee was appointed by the 

 House to investigate the subject, a majority of 

 whom reported that the assault was an act 

 done in contempt of the authority and dignity 

 of the House, involving a violation of its own 

 peculiar privileges. They further declared that 

 the power to punish for contempt was not pe- 

 culiar to the common law of England ; but it 

 belonged essentially to every judicial tribunal 

 and to every legislative assembly ; it grew out 

 of the great law of self-preservation. They 

 further said that it was a dangerous power, 

 liable to abuse, and that the House should only 

 exercise it " in cases of strong necessity." For 

 reasons stated in the report, it was recom- 

 mended that the House suspend further pro- 

 ceedings in the case, which was adopted. 



In December, 1795, the House of Represent- 

 atives, on information given by four of its 

 members, ordered the arrest of Robert Randall 

 and Charley Whitney for " a contempt to, and 

 breach of, the privileges of the House, in an un- 

 warrantable attempt to corrupt the integrity of 

 its members." The facts being proved, Wbjt- 

 ney was detained in confinement a fortnight, 

 and Randall three weeks, and was reprimanded 

 by the Speaker. In March, 1796, during the 



* An instance of this nature occurred, a few years ago, in 

 the Lower House of the Ohio Legislature, from which a 

 member, who had been a convict in the State Prison, was 

 expelled. 



t Cushing's " Elements. 1 ' 



same session, the Committee on Privileges, 

 through Mr. Madison, reported that James 

 Gunn and Frederick Frelinghuysen, Senators, 

 were guilty of a breach of the privileges of the 

 House in sending and bearing a challenge from 

 said Gunn to Mr. Baldwin, a member of the 

 House from Georgia. From letters addressed 

 to the committee, and reported to the House, 

 containing satisfactory apologies and acknowl- 

 edgments, any further proceedings were deemed 

 unnecessary, and such report was adopted with- 

 out division. These two cases, occurring so 

 soon after the adoption of the Constitution, and 

 during the life of its framers, contain an ex- 

 press recognition of the power to arrest and 

 punish. 



In April, 1832, William Stanberry, member 

 of the House of Representatives from Ohio, 

 complained, by letter to that body, that he 

 had been waylaid in the street, attacked and 

 knocked down by a bludgeon in the hands of 

 Samuel Houston, for words spoken in his place 

 in the House. A resolution providing that 

 Houston should be taken and held in custody 

 by the Sergeant-at-Arms, subject to further or- 

 ders, was adopted. During its consideration, 

 Mr. Polk (afterward President) urged as an 

 objection that the resolution asserted the doc- 

 trine that the House might punish an act not 

 committed in its presence, or interrupting its 

 proceedings, but without further inquiry would 

 deprive a citizen of his liberty. Mr. Wayne, of 

 Georgia, denied the power of the House, in 

 case of contempt, to proceed by peremptory 

 process, unless the contempt had been commit- 

 ted in its immediate presence. He held that 

 the proceedings of a deliberative body, on the 

 subject of contempts, should be parallel to those 

 observed in a court of justice. But these ob- 

 jections were overruled by the vote. Houston 

 was arrested and tried before the House, and 

 sentenced to reprimand by the Speaker. Dur- 

 ing the trial the power of the House to punish 

 for contempts was extensively discussed, both 

 as derived ex necessitate rei, and from the Con- 

 stitution. The counsel for the defense (Francis 

 S. Key) said that it must be allowed some lim- 

 itation of the power to punish for contempts 

 was possible and proper ; and if it was not con- 

 fined to immediate acts of interruption of busi- 

 ness in the presence of the House, it would be 

 difficult if not impossible to prescribe any other 

 limit. Lord Holt, an English judge, declared 

 his opinion in favor of limiting this power to 

 offenses committed in the presence of the 

 House (see Ld. Ray. 938 1st ditto, 10). The 

 Constitution of Maryland, said the counsel, thus 

 limits the privileges of its legislative bodies 

 (section 12). If the power of the House is ad- 

 mitted thus far, where did it get that power? 

 It was said to be derived ex necessitate yei by 

 the British Parliament. This was denied. The 

 Constitution was the source to which the power 

 must be traced, and it is not given there in ex- 

 press words. 



Probably the fullest discussion of the power 



