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seems to result from their rejecting all definition of them ; the doctrine being that “their dignity and independence are preserved by keeping their privileges indefinite;" and that thė“maxims upon which they proceed, together with the method of proceeding, rest entirely in their own breast, and are not defined and ascertained by any particular stated laws.”_1 Blackst. 163, 164.
It was probably from this view of the encroaching character of privilege, that the framers of our constitution, in their care to provide that the laws shall bind equally on all, and especially that those who make them shall not exempt themselves from their operation, have only privileged “Senators and Representatives” themselves from the single act of “arrest in all cases, except treason, felony, and breach of the peace, during their attendance at the session of their respective houses, and in going to and returning from the same, and from being questioned in any other place for any speech or debate in either house.” Const. U. S. Art. 1, Sec. 6. Under the general authority “to make all laws necessary and proper for carrying into execution the powers given them,” Const. U. S. Art. 2, Sec. 8, they may provide by law the details which may be necessary for giving full effect to the enjoyment of this privilege. No such law being as yet made, it seems to stand at present on the following ground: 1. The act of arrest is void ab initio.* 2. The member arrested may be discharged on motion. 1 BI. 166. 2 Stra. 990, or by habeas corpus under the federal or state authority, as the case may be; or by a writ of privilege out of the Chancery, 2 Stra. 989, in those states which have adopted that part of the laws of England. Orders of the H. of Commons 1550, February 20. 3. The arrest being unlaw. ), is a trespass, for which the officer and others concerned are liable to action or indictment in the ordinary courts of justice, as in other cases of unauthorised arrest. 4. The court before which the process is returnable, is bound to act as in other cases of unauthorised proceeding, and liable also, as in other similar cases, to have their proceedings staid or corrected by the superior courts,
2 Stra. 989.
The time necessary for going to and returning from Congress, not being defined, it will of course be judged of in every particular case by those who will have to decide the case.
While privilege was understood in England to extend, as it does here, only to exemption from arrest eundo, morando, et redeundo, the House of Commons themselves decided that “a convenient time was to be understood.” (1580.) 1 Hats. 99, 100. Nor is the law so strict in point of time as to require the party to set out immediately on his return, but allows him time to settle his private affairs, and to prepare for his journey; and does not even scan his road very nicely, nor forfeit his protection for a little deviation from that which is most direct ; some necessity, perhaps, constraining him to it. 2 Stra. 986, 987.
This privilege from arrest, privileges of course against all process, the disobedience to which is punishable by an attachment of the person; as a subpæna ad respondendum, or testificandum, or a summons on a jury: and with reason; because a member has superior duties to perform in another place.
When a representative is withdrawn from his seat by summons, the 30,000 people whom he represents, lose their voice in debate, and vote as they do on his voluntary absence: when a senator is withdrawn by summons, his state loses half its voice in debate and vote, as it does on his voluntary absence. The enormous disparity of evil admits no comparison.
So far, there will probably be no difference of opinion as to the privileges of the two houses of congress; but in the following cases it is otherwise. In December, 1795, the H. of R. committed two persons of the name of Randall and Whitney, for attempting to corrupt the integrity of certain members, which they considered as a contempt and breach of the privileges of the House: and the facts. being proved, Whitney was detained in confinement a fortnight, and Randall three weeks, and was reprimanded by the Speaker. In March, 1796, the H. of R. voted a challenge given to a member of their House, to be a. breach of the privileges of the House ; but satisfactory apologies and acknowledgments being made, no further proceeding was had. The editor of the Aurora having, in his paper of February 19, 1800, inserted some para-graphs defamatory of the Senate of the United States, and failed in his appearance, he was ordered to be committed. In debating the legality of this order, it was insisted, in pport of it, that every man, by the law of nature, and every body of men, possesess the right of self defence; that all public functionaries are essentially invested with the powers of self preservation; that they have an inherent right to do all acts necessary to keep themselves in a condition to discharge the trusts confided to them; that whenever authorities are given, the means of carrying them into execution are given by necessary implication; that thus we see the British parliament exercise the right of punishing contempts; all the state legislatures exercise the same power; and every court does the same: that if we have it not, we sit at the mercy of every intruder, who may enter our doors or gallery, and, by noise and tumult, render proceeding in business impracticable ; that if our tranquility is to be perpetually disturbed by newspaper defamation, it will not be possible to exercise our functions with the requisite coolness and deliberation; and that we must therefore have a power to punish these disturbers of our peace and proceedings. To this it was answered, that the parliament and courts of England have cognizance of contempts by the express provisions of their law; that the state legislatures have equal authority, because their powers are plenary: they represent their constituents completely, and possess all their powers, except such as their constitutions have expressly denied them; that the courts of the several states have the same powers by the laws of their states, and those of the federal government by the same state laws, 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, nor any powers but such as are 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 profeedings; for these, no further law is necessary, the con
stitution being the law; that moreover, by that article of the constitution which authorises 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, e. g. 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 are 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, 3 Grey 59, 147, 255 is equal to small disturbances; that in requiring 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 ono branch may assume its own privileges without controul, if it may do it on the spur of the occasion, conceal the law in its own breast, and, after the fact committed, make 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. Which of these doctrines is to prevail, time will decide. Where there is no fixed law, the judgment on any particular case is the law of that single case only, and dies with it. When a new and even a similar case arises, the judgment which is to make, and at the same time apply the law, is open to question and consideration, as are all new laws. Perhaps, congress, in the mean time, in their care for the safety of the citizen, as well as that for their own protection, may declare by law what is necessary and proper to enable them to carry into execution the powers vested in them, and thereby hang up a rule for the inspection of all, which may direct the conduct of the citizen, and at the same time test the judgments they shall themselves pronounce in their own case.
Privilege from arrest takes place by force of the election; and before a return be made, a member elected may be named of a committee, and is to every intent a member, except that he cannot vote until he is sworn. Memor. 107, 108. Dewes 642. col. 2, 643. col. 1. Pet. Miscel. Parl. 119. Lex. Parl. c. 23. 2 Hats. 22, 62.
Every man must, at his peril, take notice who are members of either house returned of record.--Lex. Parl. 23, 4. inst. 24.
On complaint of a breach of privilege, the party may either be summoned, or sent for in custody of the sergeant. 1 Grey, 88, 95.
The privilege of a member is the privlege of the house. If the member waive it without leave, it is a ground for punishing him, but cannot in effect waive the privilege of the house. 3 Grey, 140, 222.
For any speech or debate in either house, they shall not be questioned in any other place. Const. of U. S. 1. 6. S. P. Protest of the commons to James I. 1621. 2 Rapin, No. 54, pa. 211, 212. But this is restrained to things done in the house in a parliamentary course. 1 Rush. 663. For he is not to have privilege contra morem parliamentarium, to exceed the bounds and limits of his place and duty. Com. P.
If an offence be committed by a member in the house, of which the house has cognizance, it is an infringement of their right for any person or court to take notice of it, till the house has punished the offender, or referred him to a due course. Lex. Parl. 63.
Privilege is in the power of the house, and is a restraint to the proceeding of inferior courts; but not of the house itself. 2 Nalson 450. 2 Grey, 399. For whatever is spoken in the house is subject to the censure of the house; and offences' of this kind have been severely punished, by calling the person to the bar to make submission, committing him to the tower, expelling the house, &c. Scob. 72. L. Parl. c. 22.
It is a breach of order for the speaker to refuse to put a question which is in order. 2 Hats. 175. 6. 5. Grey 133.
And even in cases of treason, felony, and breach of the peace, to which privilege does not extend as to sub