PRIVILEGE.
The privileges of the members of Parliament, from small and obscure
beginnings, have been advancing for centuries, with a firm and
never-yielding pace. Claims seem to have been brought forward from time
to time, and repeated till some example of their admission enabled them
to build law on that example. We can only, therefore, state the point of
progression at which they now are. It is now acknowledged, 1st. That they
are at all times exempted from question elsewhere, for anything said in
their own house: that during the time of privilege, 2d. Neither a member
himself, his wife,[2] or his servants, [_familiares sui_] for any matter
of their own, may be[3] arrested on mesne process, in any civil suit:
3d. Nor be detained under execution, though levied before the time of
privilege: 4th. Nor impleaded, cited or subpœnaed, in any court: 5th.
Nor summoned as a witness or juror: 6th. Nor may their lands or goods be
distrained: 7th. Nor their persons assaulted, or characters traduced. And
the period of time, covered by privilege, before and after the session,
with the practice of short prorogations under the connivance of the
Crown, amounts in fact to a perpetual protection against the course of
justice. In one instance, indeed, it has been relaxed by 10 _G._ 3, c.
50, which permits judiciary proceedings to go on against them. That these
privileges must be continually progressive, 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 "the 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 _Blackstone_, 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 be 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. I. Sec. 6. Under the general authority "to makes all laws necessary
and proper for carrying into execution the powers given them," Const.
U. S. Art II. 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 Stra.
989.--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 House of Com. 1550, Feb. 20.--3. The arrest being
unlawful, 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 unauthorized arrest.--4. The court before which the
process is returnable, is bound to act as in other cases of unauthorized
proceeding, and liable also, as in other similar cases, to have their
proceedings stayed or corrected by the Superior Courts.
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 is punishable by an attachment of the person; as a
subpoena 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 47,700
people whom he represents lose their voice in debate and vote, as they
do in his voluntary absence: when a Senator is withdrawn by summons,
his State loses half its voice in debate and vote, as it does in 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 Dec. 1795, the House of Representatives committed
two persons of the names 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
House of Representatives 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 proceedings were
had. The Editor of the Aurora having in his paper of Feb. 19, 1800,
inserted some paragraphs defamatory to the Senate, and failed in his
appearance, he was ordered to be committed. In debating the legality of
this order, it was insisted in support of it, that every man, by the law
of nature, and every body of men, possesses 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 tranquillity
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 the 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 authorizes 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 tumults 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 meantime, 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 the smallest 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 cheeked 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 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 meantime, in their care for
the safety of the citizens, 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.--_D'Ewes_, 642. _col._ 2. 653. _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 privilege 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.--_Grey_, 140. 222.
For any speech or debate in either House, they shall not be questioned
in any other place.--_Const. U. S._, Art. I. Sec. 6. _S. P. protest
of Commons to James I._ 1621. 2 _Rapin._ No. 54 p. 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; _Lex. Parl.
c._ 22.
It is a breach of order, for the Speaker to refuse to put a question
which is in order.--_Hats._ 175, 176; 5 _Grey_, 133.
And even in cases of treason, felony, and breach of the peace, to which
privilege does not extend as to substance; yet, in Parliament, a member
is privileged as to the mode of proceeding. The case is first to be laid
before the House, that it may judge of the fact, and of the grounds of the
accusation, and how far forth the manner of the trial may concern their
privilege. Otherwise it would be in the power of other branches of the
government, and even of every private man, under pretences of treason,
&c., to take any man from his service in the House; and so as many, one
after another, as would make the House what he pleaseth.--_Decision
of the Commons on the King's declaring Sir John Hotham a traitor_--4
_Rushw._ 586. So when a member stood indicted of felony, it was adjudged
that he ought to remain of the House till conviction. For it may be any
man's case, who is guiltless, to be accused and indicted of felony, or
the like crime.--23 _El._ 1580.--_D'Ewes_, 283, _col._ 1.--_Lex. Parl._
133.
When it is found necessary for the public service to put a member under
arrest, or when, on any public inquiry, matter comes out which may lead
to affect the person of a member, it is the practice immediately to
acquaint the House, that they may know the reasons for such a proceeding,
and take such steps as they think proper.--2 _Hats._ 259. Of which,
see many examples.--2 _Hats._ 256, 257, 258. But the communication is
subsequent to the arrest.--1 _Blackst._ 167.
It is highly expedient, says Hatsell, for the due preservation of the
privileges of the separate branches of the Legislature, that neither
should encroach on the other, or interfere in any matter depending
before them, so as to preclude, or even influence, that freedom of
debate, which is essential to a free council. They are, therefore, not
to take notice of any bills or other matters depending, or of votes that
have been given, or of speeches that have been held, by the members of
either of the other branches of the Legislature, until the same have
been communicated to them in the usual Parliamentary manner.--2 _Hats._
252; 4 _Inst._ 15; _Seld. Jud._ 63. Thus the King's taking notice of the
bill for suppressing soldiers depending before the House, his proposing
a provisional clause for a bill before it was presented to him by the
two Houses, his expressing displeasure against some persons for matters
moved in Parliament during the debate and preparation of a bill, were
breaches of privilege.--2 _Nalson_, 743. And in 1783, December 17, it was
declared a breach of fundamental privileges, &c. to report any opinion
or pretended opinion of the King, on any bill or proceeding depending
in either House of Parliament, with a view to influence the votes of
the members.--2 _Hats._ 251, 6.