*233 in its operations, until the memorable social war * extended it to all the inhabitants of Italy, south of the Rubicon and the Arnus. As no test of property or character was required, and as the people assembled within the walls of Rome in immense masses, and not merely to vote, but to make laws, this great innovation produced the utmost anarchy and corruption, and has justly been regarded as precipitating the fall of that commonwealth. (a)

The English nation, in common with the other feudal governments of Europe, anciently enjoyed the blessings of popular representation, and the knights, citizens, and burgesses were intended to represent the farmers, merchants, and manufacturers, being the several orders and classes of people of which the nation was composed. (b) But the mutations of time and commerce, in

ballot, as being a cover for corrupt and hypocritical votes. His object was to obtain or measure the moral value of the votes by a consideration of the persons who gave them. Cic. De Legibus, b. 3. Mr. Barnham, the translator of Cicero's treatises, De Republica and De Legibus, in his note to b. 3, De Legibus, learnedly discusses the superior value and safety of open voting by poll; but the orderly and specific mode of voting by ballot seems to render the latter preferable in that point of view.

(a) Montesquieu's Esprit des Lois, tom. i. lib. 2, c. 2; Grand. et Decad. des Rom. c. 9. Augustus allowed the Decurions, or privileged citizens, in the provincial chartered cities in Italy, to vote at home for Roman magistrates, and to send in writing their ballots under seal to the polls at Rome. This, says Suetonius, was conferring upon them, in a degree, the privileges and dignity of Rome itself. Sueton. Aug. c. 46.

(b) 1 Black. Comm. 174; Millar on the English Constitution, b. 2, c. 6, sec. 1. In all the northern nations, says Turner, in his learned History of England during the Middle Ages, vol. i. 416, great councils were attached to the ruling chief, from their first emerging from the woods of Germany. The destruction of the Anglo-Saxon nobility, in their revolts against William the Conqueror, and the confiscation of their property among his Norman barons, had annihilated the members of their ancient witenagemotes, but did not terminate the institution. The Norman barons were as independent as the Saxon witena, and they surrounded the sovereign in a national council, as well after the conquest as before. But though the national councils, which were common to the Celtic and Teutonic tribes, may have contained within them the germ of the English Parliament, yet the modern antiquarians generally conclude, that the Anglo-Saxon witenagemote had no representation of the ceorls, or inferior freemen. It consisted of the monarch, the aristocracy, and the clergy, with very little of the real liberty of deliberation and voting. Hallam on the Middle Ages, c. 8, part 1; Turner's Hist. of the Anglo-Saxons, vol. iii.; Palgrave's Hist. of England, vol. i.; Sir Wm. Betham's Dignities, Feudal and Parliamentary. The latter writer concludes, from a careful examination of an immense mass of ancient documents, that there existed no deliberative legislative assembly in England prior to the reign of Hen. III. That was the era of the establishment of magna charta, which declared that no taxation (the three feudal aids excepted) was to be imposed but by Parliament, which was to consist of the higher clergy and nobility, and of the tenants in chief under the

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, * many years ago, (a) that * 234 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. (b)

crown.

This was the era of the introduction of popular representation in England, and of the establishment of the House of Commons in the time of Hen. III. and Edward I. Lands held by feudal tenure were held on the condition of performing certain services; and being performed 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, was issued under the usurpation of Simon Montfort, in the 49th of Hen. 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.

(a) 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, 105 for Ireland. By the English Reform Act of 2 Wm. IV. c. 45, the qualifications of electors of the commons house of Parliament, for knights of the shires, were substantially as follows: That they must

But notwithstanding 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 vigor 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.1

1 See statute, 6 Vic. c. 18, §§ 80 – 83.

Congress is to assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they by law appoint a different day. (c)

*Each house is made the sole judge of the * 235 election returns and qualifications of its mem

Privileges of

the two houses

of Congress.

bers. (a) 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. (b) Each house, likewise, determines the rules of its proceedings, and can punish its members for disorderly behavior; and, with the concurrence of two thirds, expel a member. (c) 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. (d) 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 the two houses shall be sitting. (e) The members of both houses are likewise privileged from arrest during their

(c) Art. 1, sec. 4.

(a) Art. 1, sec. 5.

(b) 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.

(c) 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.

(d) Art. 1, sec. 5.

(e) Art. 1, sec. 5.

attendance on Congress, and in going to and returning from the same, except in cases of treason, felony, and breach of the peace. (f) 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. (g)

There is no power expressly given to either house of Con*236 gress to punish for contempts, except when committed by

*

their own members; but in the case of Anderson, who was committed by order of the House of Representatives, for a contempt of the House, and taken into custody by the sergeant-atarms, 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. (a) The court decided that the House had that power, and

(f) 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 Geo. III.) privilege is no stay of proccedings 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.

(g) Art. 1, sec. 6. The question whether a senator or member of the House of Representatives is 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 favor 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 Creevy, 3 Esp. N. P. Cases, 228, 1 Maule & Sel. 278.

(a) Anderson v. Dunn, 6 Wheaton, 204.1

1 A printer, under the order of the House, of a document in its nature libellous was held not to be protected. Stockdale v. Hansard, 9 Ad. & Ell. 1; 11 do. 253, 273, 297. For the history of this important controversy see May's Treatise, 119 to 130, and In re Fernandez, 10 C. B. (N. S.) 3.

1 In this case the alleged contempt was committed within the District of Columbia, the process was served therein and the arrest was made therein; thus narrowing the ques