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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 House of Representatives committed two persons of the name of Randall and Whitney, for attempting to corrupt the integ. rity 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 proceeding was had. The editor of the Aurora having, in his paper of February 19. 1800, inserted some paragraphs defamatory of the Senate, and failed in his appearance, he was ordered to be committed. In debating the legality of this order, it was insisted, in sup. port 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 bave no such natural or necessary power, nor any pow. ers 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 proceedings; for these no further law is necessary, the Constitution being the law; that, moreover, by that article of the Coustitution 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 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, that 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 meinber; 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 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 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 con- . duct 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 extent a member, except that he cannot vote until he is sworn. Memor., 107, 108. D'Eres, 642, col. 2; 643, col. 1. Pet. Miscel. Parl., 119. Lex. Parl.,
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. 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. 3 Grey, 140, 222.
For any speech or debate in either House, they shall not be questioned in any other place. Const. U. S., I, 6; S. P. protest of the Commons to James I., 1621; 2 Rapin, No. 54, pp. 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 proceedings of inferior courts, but not of the House it. self. 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 wbich 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 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. Dec. of the Com. 23 El.,
on the King's declaring Sir John Hotham a traitor. 4 Rushw., 586. So, when a member stood indicted for 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. 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. Ib., 256, 257, 258. But the communication is subsequent to the arrest. 1 Blackst., 167.
It is highly expedient, says Hatsel, 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 bave been given, or of speeches which 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 Hais., 252. 4 Inst., 15. Seld, Jud., 53. 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 1733, 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 merubers. 2 Hats., 251, 6.