assembled and sitting, to wit, at Washington aforesaid, in the county aforesaid: and this the said Thomas is ready to verify: Wherefore he prays judgment, if the said John ought to have or maintain his aforesaid action thereof against him, &c.

1821.

Anderson

V.

Dunn.

Mr. Hall, for the plaintiff in error, made three February 20th. points.

1. That the House of Representatives had no au

thority to issue the warrant.

2. That the warrant is illegal on the face of it. 3. That in either case, it is no justification to the officer who executed it.

. 1. If the house had authority, it must be either in virtue of the Constitution of the United States, of usage and precedent, or as inherent in, and incidental to, legislative bodies. In the Constitution there are but two clauses which can be made to serve the purpose. The first article, section eight, enables Congress to make all laws which may be necessary and proper to effectuate the powers expressly given. But it is obvious, that this merely authorizes the Legislature collectively, not one House separately, to pass certain laws, not mere occasional sentences. And the powers delegated to the United States, being in derogation of the rights of sovereign States, must be construed strictly. For the same reasons, the authority to determine the rules of its proceedings, (art. 1. sec. 5.) cannot be construed to operate beyond the walls of the House, except on its own

a 2 Mass. Rep. 146.

members, and its officers. It is observable, also, that this authority is coupled with an authority to punish its members for misbehaviour, and to expel a member. It is a rule of construction, that the text should be considered in connection with the context; but the context, viz. the power to punish and to expel, relates solely to the internal polity and economy of the House. The authority is to determine the rules of its proceedings, not the proceedings themselves, for these are determined by the Constitution itself in the first article. The fifth section of the first article, authorizes the House to punish its members; et enumeratio unius est exclusio alterius. The power of issuing warrants is manifestly judicial. This may be assumed as an axiom. The Constitution ordains, that the judicial power (which is equivalent to all the judicial power) shall be vested in one Supreme Court, and other inferior Courts, (art. 3. sec. 1.) Thus, the right of the Courts to exercise such a power, is exclusive, and an assumption of it by any other department, is an usurpation. Nor can the authority be inferred from usage and precedent. These must be, either of the two Houses of Congress, the State Legislatures, or the British Parliament. On the journals of the House of Representatives, are found the cases of Randal and Whitney, and two others. On those of the Senate, is the case of the editor of the Aurora, &c. Shall we be told, that these proceedings were acquiesced in? The want of spirit in the individual to resist oppression, cannot fairly be construed into acquiescence on the part of the public; since that resistance

could be made only by the person immediately af-
fected. As to the usage of the State Legislatures, it
is either under colour of their unlimited powers, of
express provisions in their Constitution, or of the
common law and the usage of Parliament. In this
case, unlimited powers and
express provision are not
pretended; the penal code of the common law is no
part of the federal system. Is, then, the authority
incident to legislative bodies? An incident is de-
fined, "a thing necessaril, depending upon, or ap-
pertaining to, another that is more worthy, or prin-
cipal." So the Constitution of the United States,
(art. 1. sec. 8.) when regulating the incidental
powers of Congress, authorizes it to make such
law only as may be "necessary" to effectuate the
express powers. Necessity, then, is the criterion of
incident. But is a power to punish the offer of a
bribe beyond the verge of the House necessary to
enable Congress to perform its duties? The impu
nity of the offence being the only possible reason of
the necessity, if the offender may be adequately
punished by the Courts of justice in the ordinary
mode of proceeding, the supposed necessity ceases.
Bribery of a member of Congress is punishable in
the State Courts, and in the Circuit Court of the
District of Columbia, according to the course of the
common law. Redress may also be had before the
same tribunals, in case of the battery or libel of a
member; and if the existing remedies be insufficient,
an act of Congress may be made to supply the de-
ficiency. And though the ordinary remedies should
not reach every possible case, it is a rule, that "if the

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Anderson

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Dunn.

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Dunn.

words of a statute do not extend to a mischief which rarely occurs, they shall not, by an equitable construction, be extended to that mischief; but it is a casus omissus; and the objects of statutes, are mischiefs, quæ fræquentius accidunt." It is evident, that the framers of the Constitution deemed it more prudent to leave such mere possible mischiefs unprovided for, than to incur a certain evil by vesting an extraordinary and dangerous prerogative for their suppression.

:

2. The warrant is illegal on the face of it. By the fourth article of the amendments to the Constitution, it is provided, that "no warrant shall issue but on probable cause, supported by oath or affirmation." Thus, are prohibited, all warrants which do not rest on oath, and on probable cause. But it is no less necessary, that the warrant should recite the cause in special and the oath. The Constitution is not satisfied with "a cause" so vague and indefinite, as high contempt and breach of privilege." When it adopts a term from the common law, it adopts, also, the law regulating its incidents and properties, unless repugnant to that instrument. Now, what are the incidents and properties of a warrant at common law? It is said by Dalton, that "the warrant ought to contain the special cause and matter whereupon it is granted."

3. If there be either a defect of authority in the House, or illegality in the warrant, it is no justification. That it is none in the former case, has long

since been settled in this Court. As to the latter alternative of the proposition, the constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. Thus, the warrant is a nullity. The rights of Congress on the subject of contempts, have been considered similar, and equal to those of the federal Courts. But here we must recur again to the maxim, that when the constitution adopts a term from the common law, it adopts, also, its incidents. At common law, the power to punish contempt is incident to Courts. But "Congress," and the "House of Representatives," being terms unknown to the common law, can derive no claims through it. Courts enforce the laws; they must, therefore, be clothed with authority to compel obedience to them: whereas, the Legislature is merely deliberative. But, it is asked, are the members to be insulted with impunity, in a manner which will not authorize the interference of a Court? If the insolence be merely by words or gestures, not amounting to slander or assault, the genius of our institutions does not admit of its punishment. Privilege of Congress is reduced by the sixth section, art. 1. of the constitution, to exemption from arrest, and freedom of speech. From the nature of the enumerated privileges, it is evident, that the sole object of giving them was to prevent interruption of the business of the Houses, not to render the person and feelings of members more sacred than those of other citizens. An attempt to

1821.

Anderson

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Dunn.