the power to hold in confinement a person summoned as a witness in the course of an investigation before either House, or before a committee thereof, and who refuses to answer proper questions put to him, by the House or by the committee under the order of the House. This latter is not strictly punishment for the contempt, because in such a case the recusant witness may release himself from confinement by answering, but it is a necessary and proper exercise of the authority of the House to compel the disclosure of all facts within the knowledge of any witness which affect the order, the dignity, or the purity of its legislation. These general rules are well settled by the authorities. (Cooley on Constitutional Limitations, 133. Anderson vs. Dunn, 6 Wheat, 14 East, 1. Stockdale vs. Hansard, 9. Adolphus and Ellis, 231. Burnham vs. Morrisey, 14 Gray, 226. State vs. Mathews, 37 N. H., 450. Case of Irwin, 43d Congress. Case of Walcott, 35th Congress.) § 525. An examination of these and other authorities upon the subject, will show that not alone the two Houses of Congress, but our legislative bodies generally, possess the power to protect themselves by punishing for contempt, and by expulsion of a member. This is a power inherent in every legislative body. The power to punish contempts of its authority which belongs to legislative bodies in general, is not limited to the punishment of members, but reaches other persons, and it belongs to each House of our State legislatures, whether expressly conferred by constitutional provision or not. Where, however, imprisonment is imposed by a legislative body as a punishment for contempt, or as a means of compelling disclosures by a witness, it must ter

minate with the final adjournment of the House, and if the prisoner be not then discharged by its order, he may be released on habeas corpus. (Jefferson's Manuel, § 18. Cooley on Constitutional Limitations, 134.)

§ 526. An act of Congress of 24th January, 1857, provides for the punishment by fine, and the imprisonment of any person who having been summoned as a witness by the authority of either House of Congress, shall wilfully make default or who having appeared shall refuse to answer any question pertinent to the question under inquiry. The said act further provides in the last section thereof as follows:

"That when a witness shall fail to testify as provided in the previous sections of this act, and the fact shall be reported to the House, it shall be the duty of the Speaker of the House or the President of the Senate to certify the fact, under the seal of the House or Senate, to the district attorney for the District of Columbia, whose duty it shall be to bring the matter before the grand jury for their action.” (Revised Statutes, U. S., page 17.)

Under this statute it has been claimed that the Houses of Congress are deprived of the power to punish for contempt and that they have authority only to report a case of contempt to the proper district attorney to be laid before the grand jury. But this is an erroneous view of the effect of the statute. Because a contempt of the authority of the House is made by statute a misdemeanor, it does not thereby cease to be a contempt. The power of the House or Senate to punish ceases with its final adjournment, and the punishment which it may inflict is

therefore often very inadequate. If the offense is committed near the close of a Congress, the utmost that either House can do, may be to confine the offender for a few days or possibly only for a few hours. It was for this reason, doubtless, that Congress provided by the statute above named a more effective remedy by indictment. This view of the statute was sustained by the criminal court of the District of Columbia in the case of R. B. Irwin, decided by judge McArthur, January, 1875. The House of Representatives having committed Irwin to the common jail of the District of Columbia for comtempt, in refusing to answer proper questions put to him in the course of an investigation, he applied to said court for release upon habeas corpus, and his counsel urged, as one ground for his discharge from imprisonment, that under the statute above mentioned, the House had no power to commit him, its authority over him having been exhausted by a certification of the facts to the district attorney. The court overruled this point and in the course of his opinion the judge used this language:

"It is said that in as much as Congress has created the act of a witness refusing to answer a misdemeanor, they have abolished it as to contempt. I can not so regard it. It appears to me that the punishment provided in the statute for this as an offense does not merge the contempt, and does not abolish the power of the House. It appears to me that it has not been so understood from the time of the enactment of the statute; and I believe this is the first time that that aspect of the case has ever been presented for judicial examination. There is nothing. clearer than that the same act may be both a misde

meanor and a contempt. If one member should strike another while the House was in session, and in its presence, it would be a contempt of the House, and a misdemeanor under the law, for which he could be punished. It would be no answer to the proceedings in the House for contempt to say that he was liable under the general law of the land, to be punished for the misdemeanor."

§ 527. The power to punish persons not members of the body for contempt, is not conferred upon the Houses of Congress by any express provision of the constitution, but in Anderson vs. Dunn, supra, in which the whole subject is exhaustively discussed, it is held that the Houses respectively possess this power, and that it is conferred by necessary implication, under the constitution, growing out of the power to legislate, and to make and enforce rules. It was there declared to be a power essential to enable the Houses of Congress to discharge the duties, and exercise the powers which the people have entrusted to them.

§ 528. The power given to each House of Congress to "judge of the election returns and qualifications of its own members," does not authorize an inquiry into the moral character of a person elected and returned as a member. Such an inquiry can only be made, if at all, in the prosecution of proceedings for expulsion. The term "qualifications," as used in the constitution, means the constitutional qualifications, to-wit: that the person elected shall have attained the age of twenty-five years, been seven years a citizen of the U. S., and shall be an inhabitant of the State in which he shall be chosen. (Maxwell vs. Cannon, 43d Congress.)

§ 529. In the case of Bell vs. Snyder, the House of Representatives of the 43d Congress, held that the declaration of a voter as to how he voted or intended to vote is competent testimony on the point. (Contested Election Cases, 1871 to 1876, p. 251.] This was a case in which it appeared that certain legal voters tendered their ballots and were not permitted to vote. They therefore filed with the Supervisor of the election their affidavits, to which they attached the ballots which they had tendered and desired to vote. It was in connection with the proof of these facts that their declarations were admitted as part of the res gestae. The case is, therefore, not identical with a case where illegal votes have been admitted, and the question is for whom they were cast. Upon this latter point see ante, Secs. 270 and 271. in such a case as that of Bell vs. Snyder, to call the voters as witnesses and prove by them the facts.

The better practice is, even

§ 530. In the case last cited, it was further held that where a person clearly entitled to vote offers his ballot, at the proper time and place, and to the proper officer, the same should be counted, even though rejected by the election officers.

It was further held in the same case, that where the return failed to state for what office the ballots were cast, the ballots themselves showing that they were cast for contestee for Representative in Congress, they should be counted by the House. [Ib. p. 247.)