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the only weapons by which the minority can defend themselves against similar attempts from those in power, are the forms and rules of proceeding, which have been adopted as they were found necessary from time to time, and are become the law of the house; by a strict adherence to which, the weaker party can only be protected from those irregularities and abuses which these forms were intended to check, and which the wantonness of power is bát too often apt to suggest to large and successful majorities.—2 Hats. 171, 172.
And whether these forms be in all cases the most rational or not, is really not of so great importance. It is much more material that there should be a rule to go by, than what that rule is; that there may uniformity of proceeding in business, not subject to the caprice of the Speaker, or captiousness of the members. It is very material that order, decency, and regularity be preserved in a dignified public body. -2 Hats. 149.
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. — Constitution of the United States, Article I., Sec. tion 1.
The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States.--Const. U. S., Art. I. Sect. 6.
For the powers of Congress, see the following Articles and Sections of the Constitution of the United States :- Art. I., Sec. 4, 7, 8, 9.Art. II., Sec. 1, 2.--Art. III., Sec. 3.–Art. IV., Sec. 1, 3, 5.-And all the Amendments.
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 any thing said in their own house: that dui the time of privilege, 2d, Neither a member himself, his wife,* or his servants, (familiares sui] for any matter of their own, may bef 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 subpænaed, in any court: 5th, Nor summoned as a witness or juror: 6th, Noi 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 kceping 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.
* Order of the House of Commons, 1663, July 16. + Elsynge, 217; 1 Hats, 21 ; 1 Grey's Deb. 133.
It was probably from this view of the encroaching character of pri. vilege, that the framers of our Constitution, in their care to provide that the laws shall bind equally on all, and especially that those who inake 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 brcach 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 cither House. --Const. U. S. Art. I. 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. II. Sec. 8, they may provide by law the details which may be necessary for giving full effect to the cn. joyment 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 Bl. 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 indict. ment 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 to which 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 scat 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 with drawn 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 mem. ber 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 exer. cise 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 there. fore have a power to punish these disturbers of our peace and proceed. ings. 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 cqual 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 cach 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, noreover, by that article of the Constitution which anthorizes them to make all laws necessary and proper for