All rules of proceeding in deliberative bodies in English-speaking countries are based on the Law of Parliament. This Law consists of the customs, precedents, and rules that govern the transaction of business in Parliament, and is the growth of centuries. Many of these rules are inapplicable in the American Congress, while other rules are required. Moreover, owing to the different constitution of the Senate and the House, the difference in the size of the two bodies, and their partially different duties, they require different rules of proceeding. Speeches in the Senate are not limited in length by any rule, but in the House they cannot exceed an hour without special permission. The House rules authorize the previous question (or closure), whereby debate can be terminated and a vote on the main question be brought on; but this motion the Senate rules do not permit.

319. Punishment and Expulsion.-Senators and Representatives are punished or expelled for conduct unbecoming their official character. For example, Jesse D. Bright, Senator from Indiana, was expelled from the Senate, in 1863, for having, in a private letter, afterwards published, expressed sympathy with the Rebellion. The House has exercised also its power to punish and expel in repeated cases, and in 1842 it reprimanded Joshua R. Giddings, of Ohio, for introducing certain resolutions in respect to slavery. While the power of expulsion is very properly conferred upon the Houses, the rule requiring a two-thirds vote for that purpose is obviously a wise one.

Section 5, Clause 3.-Each House shall keep a Journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either House on any question shall, at the desire of one-fifth of those present, be entered on the Journal.

320. Modes of Voting.-The House of Representatives votes in several different ways. The most common way is viva voce, the presiding officer deciding the vote by the sound. If he is in doubt, he asks the members to rise while he counts them. If his decision is questioned, he appoints two tellers, or "counters," who count members as they pass between the tellers, and announce to him, and he to the House, the result. This is called a division.

99 66

nay,

When the vote is by yeas and nays, the Clerk calls the roll, and records after each man's name "yea," ""absent" or "not voting." The object of entering the yeas and nays upon the Journal is to inform the public how their representatives vote on questions. As the expression is, "it puts a man on the record," which the other methods of voting do not do.

On any important question, at least if there is a divided opinion, the roll is pretty certain to be called; and the Constitution expressly requires it when a vetoed bill is put upon its passage. The House votes by ballot when it elects the President. The rules of the Senate recognize no vote but that by yeas and nays. Members of the House of Lords vote "content" and "not content" on the call of the roll; the House of Commons divides, the members going into the lobby, where they are counted.

321. Dilatory Motions.-Members who are opposed to a pending measure on which a vote is about to be taken, in order to defeat it by delay, when they cannot by voting, sometimes make dilatory motions, as to adjourn, and to call for the yeas and nays on every question, with a view of using up the time and forcing an adjournment. This is popularly called "filibustering." The Constitution has therefore wisely provided that the demand for the yeas and nays must be supported by one fifth of the members present. In the Old Congress one member could make this call.

Section 4, Clause 4.-Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.

322. Adjournment. This clause prevents those interruptions of business, and that friction between the Houses, which would ensue provided either House should adjourn to such place and for such time as it pleased. The two Houses can, however, adjourn to another place than the Seat of Government; and the President is by law authorized, whenever Congress is about to convene, and he thinks life or health would be hazarded by meeting at the Capital, owing to contagion, or other circumstances, to convene it by proclamation at some other place.

323. Power to Punish for Contempt.-A legislative body has the right, and is in duty bound, to conduct proper investigations into

the conduct of public affairs. It may call witnesses to its bar, or it may appoint an investigating committee, giving to it power to send for persons and papers. For many years both Houses of Congress had been in the habit of punishing witnesses for contempt who refused to answer questions put to them on such investigations, sometimes even sending them to jail. In the celebrated case of Kilbourn v. Thompson,' the Supreme Court held that, although the House of Representatives can punish its own members for disorderly conduct, or for failure to attend its sessions, can decide cases of contested elections, determine the qualifications of its members, exercise the sole power of impeachment of officers of the Government, and may, when the examination of witnesses is necessary to the performance of these duties, fine or imprison a contumacious witness— there is not in the Constitution of the United States any general power in either House to punish for contempt. Neither House has authority to extend such an inquiry into the private affairs of the citizen. Kilbourn had been committed to jail by the House of Representatives for refusing to answer questions addressed to him relating to his private business. The decision referred to was rendered in habeas corpus proceedings which gave him his liberty.

1 103 U. S. Reports, 168.

CHAPTER XXIII.

RIGHTS OF SENATORS AND REPRESENTATIVES.

ARTICLE I.

Section 6, Clause 1.-The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest 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.

324. Members of Congress to be Paid.-Members of Parliament receive no compensation whatever. The two main objections to such a practice are, that the state has no more right to demand the services of citizens than to demand their property, without a just compensation, and that it tends to exclude poor men from the legislature. Hence the Federal Convention agreed that members of Congress should be paid. Still, it was urged by some distinguished members, as General Pinckney and Dr. Franklin, that Senators, since they would represent the wealth of the country, should be denied compensation, and such a proposition received the votes of five States.

325. National Payment. A question much more earnestly contested was, how payment should be made. Some members contended that the members of the new Congress, like the members of the old one, and especially Senators, should be paid by the States. Men tended to divide on this question as they divided on the question of the nature of the government to be constituted. The arguments of

those who contended for National payment were, that it was unjust to ask the States to pay for services rendered to the Nation; that the several States would compensate their members at different rates, thus begetting jealousy and heart-burning; and that some of the States might make the pay so low as to substitute for the question, "Who is most fit to be chosen?" "Who is most willing to serve?" Furthermore, Mr. Madison said State payment would prevent that very stability in the Government which they were seeking to gain; Senators would become the mere agents of State interests and views, instead of being impartial guardians of the public good. Mr. Hamilton presented the same argument in the tersest form: "Those who pay are the masters of those who are paid." These arguments

were decisive of the source of payment.

326. Compensation Left to Congress.-Still another question was, whether the amount of the compensation should be fixed in the Constitution or be left to Congress. On the one hand, it was urged that the pay would need to be changed from time to time, and that it would be difficult or impossible to amend the Constitution; and on the other hand, that Congress would be likely to abuse the power. It was also proposed that Congress should fix the compensation only once in twelve years. The matter was finally left to the law-making power.1

327. Retroactive Compensation.-Each Congress has absolute power over its own pay, subject to the Presidential veto. In every case of change, no matter when made, it has had effect from the beginning of the Congress making it. In other words, every law has been retroactive. The law of March 16, 1816, reached back to March 4, 1815; the law of August 16, 1856, to March 4, 1855; the law of March 3, 1873, to March 4, 1871, or two full years. The laws of 1816 and 1873 provoked severe criticism throughout the country. It was the popular opinion that the increased compensation was excessive; and

1 This Amendment, which failed to secure the requisite number of ratifications, was the second one to be proposed in 1789: "No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened."