Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol II).djvu/317

 CH. XII.] adopted in each state, by a law of congress; that none of these bodies, therefore, derive those powers from natural or necessary right, but from express law; that congress have no such natural or necessary power, or any powers, but such as arc given them by the constitution; that that has given them, directly, exemption from personal arrest, exemption from question elsewhere, for what is said in their house, and power over their own-members and proceedings; for these no further law is necessary, the constitution being the law; that, moreover, by that article of the constitution, which authorities them 'to make all laws necessary and proper for carrying into execution the powers vested by the constitution in them,' they may provide by law for an undisturbed exercise of their functions, for example, for the punishment of contempts, of affrays or tumult in their presence, &c.; but, till the law be made, it does not exist, and does not exist, from their own neglect; that, in the mean time, however, they arc not unprotected, the ordinary magistrates and courts of law being open and competent to punish all unjustifiable disturbances or defamations; and even their own sergeant, who may appoint deputies ad libitum to aid him, is equal to small disturbances; that in requiring a a previous law, the constitution had regard to the inviolability of the citizen, as well as of the member; as, should one house in the regular form of a bill, aim at too broad privileges, it may be checked by the other, and both by the president; and also as, the law being promulgated, the citizen will know how to avoid offence. But if one branch may assume its own privileges without control; if it may do it on the spur of the occasion, conceal the law in its own breast, and, after the tact committed, makes its sentence both the law and the judgment on that fact; if the offence is to be kept undefined, and to be declared only ex re nata, and, according to the passions of the moment, and there be no limitation either in the manner or measure of the punishment, the condition of the citizen will be perilous indeed."

The reasoning of Lord Chief Justice De Grey in Rex v. Brass Crosby, (3 Wilson's R. 188,) and of Lord Ellenborough in Burdett v. Abbott, (14 East R. 1,) is exceedingly cogent and striking against that favoured by Mr. Jefferson. It deserves, and will require an attentive proposal. See also Burdett v. Abbott, 4 Taunt. R. 401; 4 Dow's Parl. Rep. 165. Supreme Court of the United States, in the case alluded to, contains so elaborate and exact a consideration of the whole argument on each side, that it will be far more satisfactory to give it in a note, as it stands in the printed opinion, than to hazard, by any abridgment, impairing the just forces of the reasoning.