Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol II).djvu/318

 310 speaker of the house of representatives, by the sergeant-at-arms, for an alleged contempt of the house, (an attempt to bribe a member,) and the cause was decided upon a demurrer to the justification set up by the officer. After a preliminary remark upon the range of the argument by the counsel, Mr. Justice Johnson, in delivering the opinion of the Court proceeded as follows:

"The pleadings have narrowed them down to the simple inquiry, whether the house of representatives can take cognizance of contempts committed against themselves, under any circumstances? The duress complained of was sustained under a warrant issued to compel the party's appearance, not for the actual infliction of punishment for an offence committed. Yet it cannot be denied, that the power to institute a prosecution must be dependent upon the power to punish. If the house of representatives possessed no authority to punish for contempt, the initiating process issued in the assertion of that authority must have been illegal; there was a want of jurisdiction to justify it.

"It is certainly true, that there is no power given by the constitution to either house to punish for contempts, except when committed by their own members. Nor does the judicial or criminal power given to the United States, in any part, expressly extend to the infliction of punishment for contempt of cither house, or any one co-ordinate branch of the government. Shall we, therefore, decide, that no such power exists?

"It is true, that such a power, if it exists, must be derived from implication, and the genius and spirit of our institutions are hostile to the exercise of implied powers. Had the faculties of man been competent to the framing of a system of government, which would have left nothing to implication, it cannot be doubted, that the effort would have been made by the framers of the constitution. But what is the fact? There is not in the whole of that admirable instrument a grant of powers, which does not draw after it others, not expressed, but vital to their exercise; not substantive and independent, indeed, but auxiliary and subordinate.

"The idea is Utopian, that government can exist without leaving the exercise of discretion somewhere. Public security against the abuse of such discretion must rest on responsibility, and stated appeals to public approbation. Where all power is derived from the people, and public functionaries, at short intervals, deposit it at the feet of the people, to be resumed again only at their will, individual fears may be alarmed by the monsters of imagination, but individual liberty can be in little danger. § 845. This is not the only case, in which the house of representatives has exerted the power to arrest, and punish for a contempt committed within the walls of the