854

PRIVILEGE OF DEBATE.

quently be entitled to judgment against all the defendants, were it not that the Constitution provides that "senators and representatives . . . for any speech or debate in either House shall not be questioned in any other place." This clause should be so construed as to effect its object, which is, that the legislative assemblies which represent the nation may proceed freely in the discharge of their duties, without being answerable for their acts except to their constituents. Although the words are "speech or debate," they should be regarded as including everything that is said or done in either House in the transaction of public business. Such was the interpretation given to the principle in England, where it originated, and which had been adopted in the United States. It followed that although the House of Representatives had exceeded their jurisdiction in passing the resolution and ordering the arrest, the members were not civilly or criminally responsible for the mistake. Were not this the rule, every unconstitutional statute might afford ground for an action against the members who enacted it, and the president or governor by whom it was approved. We may infer from this decision that the members of a legislative assembly are in a more favorable position than the judges of courts of record, who may be held answerable in damages for a plain usurpation of power, though not for an erroneous exercise of the powers with which they are clothed.2

1 Story, Commentaries, section 866; Coffin v. Coffin, 4 Mass. 1.

1 Smith's Lead. Cas. (Sth Am. ed.) 1147, 1149; Houlden v. Smith, 14 Q. B. 841.

Coffin v. Coffin, 4 Mass. 1, "was an action for slander, the offensive language being used in a conversation in the House of Representatives of the Massachusetts legislature. The words were not delivered in the course of a regular address or speech, though on the floor of the House while in session, but were used in a conversation between three of the members when neither of them was addressing the Chair. It had relation, however, to a matter which had a few moments before been under discussion. In speaking of this article of the Bill of Rights, the protection of which had been invoked in the plea, the Chief-Justice said: These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions

PREPARATION OF IMPEACHMENT.

855

This decision may be regarded as establishing that the State legislatures are under the same disability as Congress, and cannot, consistently with the Fourteenth Amendment, compel the attendance or production of witnesses or papers in any matter which affects private rights, although the government is also a party in interest. But it would at the same time appear that as the Lower House is endowed with the judicial power of impeachment, and may do all that is requisite for its effectual exercise, it is necessarily empowered. to act as an inquest in preparing the articles which take the place of an indictment, and may issue subpoenas and punish any one who is in contempt by refusing to appear.1

If the conclusion reached in Kilbourn v. Thompson is at variance with the practice of the English House of Commons, it is entirely consonant with the principle so well enunciated by Chatham in animadverting on the proceedings of that body against Wilkes, that jus facere and jus dicere are functions which in the interest of freedom should not be lodged in the same hand.2

of their office without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate, but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature and in the execution of the office. And I would define the article as securing to every member exemption from prosecution for everything said or done by him as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular, according to the rules of the House, or irregular, and against their rules. I do not confine the member to his place in the House, and I am satisfied that there are cases in which he is entitled to this privilege when not within the walls of the representatives' chamber.' Kilbourn v. Thompson, 103 U. S. 168, 203.

1 See Whitcomb's Case, 120 Mass. 118. "The range of investigation which is open to inquiry by the legislature is unlimited. It is the General Court of the Commonwealth, entitled to inquire into the condition and efficiency and mode of operation of all administrative departments of the government of the State, the proper execution of the laws, and all that concerns the public welfare.” Emery's Case, 107 Mass. 183.

2 Thackeray's Life of Chatham, ii. 1391.

856

CITY COUNCIL CANNOT COMMIT WITNESSES.

Whatever the rule may be as to Congress and the State legislatures, the common council of a city has no power to commit and punish for contempt, even when it consists in a refusal to appear and answer questions put in the course of an investigation into the conduct of the city government; and so much of any statute as undertakes to confer such authority is invalid.1

1 Whitcomb's Case, 120 Mass. 118.

"Each House of the British Parliament has the largest power to punish every description of contempt of its authority. Crosby's Case, 3 Wils. 188; s. c. 2 W. Bl. 754; Burdett v. Abbott, 14 East, 1, and 5 Dow, 165; Case of the Sheriff of Middlesex, 11 A. & E. 273; s. c. nom. The Queen v. Gossett, 3 P. & D. 349. But according to the decisions of most eminent judges, either branch of a colonial legislature has no such power of punishment; Kielley v. Carson, 4 Moore P. C. 63; Hill v. Weldon, 3 Kerr N. B. 1: even for refusal to attend as a witness when duly summoned: Fenton v. Hampton, 11 Moore P. C. 317; or for contempts committed in the face of the house: Doyle v. Falconer, L. R. 1 P. C. 328; unless by established usage: Beaumont v. Barrett, 1 Moore P. C. 59; or by express act of the imperial Parliament: Dill v. Murphy, 1 Moore (N. s.) 487; Speaker v. Glass, L. R. 3 P. C. 560. So in Ex parte Brown, 5 B. & S. 280, the Court of King's Bench held that the House of Keys, which was the lower branch of the legislature of the Isle of Man, and had also judicial functions in appeals from the verdicts of juries, had no power to commit for contempt when acting in its legislative capacity. It is universally admitted by the law of England that a town or city council has no power, without express act of Parliament, to make an ordinance with penalty of imprisonment, or to commit for contempt of its authority. Grant on Corp. 84-86; Parke, B., in 4 Moore P. C. 89; Baeter v. Commonwealth, 3 Pa. 253.

"The British Parliament has supreme and uncontrolled power, and may change the Constitution of England and repeal even Magna Charta, which is itself only an act of Parliament. But in this Commonwealth the legislative as well as the executive authority and the courts of justice is controlled and limited by the written Constitution, and cannot violate the safeguards established by the Twelfth Article of the Declaration of Rights. Emery's Case, 107 Mass. 172.

"In the United States, each branch of a supreme legislature has the same power to commit for contempt as either House of Parliament. Such a power has been adjudged to be inherent in the Federal Senate and House of Representatives, although not expressed in the Constitution. Anderson v. Dunn, 6 Wheat 204. A like power doubtless exists in each branch of the General Court of Massachusetts and of other State

POWER TO PUNISH FOR A COMTEMPT.

857

To such a subject the words of Lord Coke

legislatures, which are supreme within their sphere, and not, like the colonial assemblies of Great Britain, created by and subordinate to the national legislature. Burnham v. Morrissey, 14 Gray, 226; State v. Matthews, 37 N. H. 450; Falvey's Case, 7 Wis. 630. But in Anderson v. Dunn the court said that neither analogy nor precedent would support the assertion of such powers in any other than a legislative or judicial body.' 6 Wheat. 233, 234. apply with peculiar force: When authority and precedent is wanting, there is need of great consideration before that anything of novelty shall be established, and to provide that this be not against the law of the land." 12 Rep. 75. At the time of the adoption of the Constitution of the Commonwealth it was no part of the law of the land that municipal boards or officers should have power to commit or punish for contempts. The second article of amendment of the Constitution, which first conferred upon the General Court full power and authority to erect and constitute municipal or city governments in any corporate town or towns in this Commonwealth,' authorized it to grant to the inhabitants thereof such powers, privileges, and immunities, not repugnant to the Constitution,' as it should deem necessary and expedient for the regulation and government thereof, and provided that all by-laws made by such municipal or city government shall be subject at all times to be annulled by the General Court.'

"The city council is not a legislature. It has no power to make laws, but merely to pass ordinances upon such local matter as the legislature may commit to its charge and subject to the paramount control of the legislature. Neither branch of the city council is a court, or, in accurate use of language, vested with any judicial functions whatever. Nor are its members chosen with any view to their fitness for the exercise of such functions. To allow such a body to punish summarily by imprisonment the refusal to answer any inquiry which the whole body, or one of its committees, may choose to make, would be a most dangerous invasion of the rights and liberties of the citizen." Whitcomb's Case, 120

Mass. 118.

LECTURE XXXIX.

A Pre

Due Process of Law as guaranteed by the Fourteenth Amendment does not require that the Case shall be submitted to a Jury, and is satisfied when Provision is made for a Hearing by a Duly Constituted Tribunal. What the Organic Laws of the Several States provide is, that Trial by Jury shall continue as it stood when they were framed. The Right is specifically guaranteed in Criminal Cases by the Constitutions of the Several States, but agreeably to the View taken in Pennsylvania, may be withheld in creating a New Offence. liminary Finding by the Grand Jury is indispensable in the Federal Courts under the Fifth Amendment, but is not secured in the States by the Fourteenth. The Right of a Jury Trial in Civil Cases depends in general on the English Law as it was brought to this Country and adopted here. Proceedings in Chancery and the Admiralty, For a Divorce, and Under the Right of Eminent Domain, ordinarily take place without a Jury; and so of Contempts of Court and the Assessment of Taxes. - Cases may be decided summarily by a Justice of the Peace or Commissioner if there is an unclogged Right of Appeal to a Court and Jury. Can a Judgment against a Servant, Surety, or Corporation be made conclusive on the Master, Principal Debtor, or Corporators?

Ir results from the principles and decisions already cited that under our organic laws no man can be deprived of life or liberty, or of any right which is in the nature of property except in the exercise of the police power or through a judgment, decree, or sentence rendered with actual or constructive notice, and a reasonable opportunity for a hearing by some duly constituted tribunal having jurisdiction of the cause and the parties; and if any one of these requisites is wanting, the entire proceeding and all that is done under it will be void. An act of Congress or of a State legislature declaring that the title to land is not in A, or assuming to take it from him for a public use without, or for a private

1 Pennoyer v. Neff, 96 U. S. 714; Kilbourn v. Thompson, 103 Id. 168; Richards v. Rote, 68 Id. 248.