chapter 33: privileges and powers of both houses of congress
§ 835. THE next Clause is, "each house may determine the rules of its proceedings, punish its members for disorderly behaviour, and, with the concurrence of two thirds, expel a member." No person can doubt the propriety of the provision authorizing each house to determine the rules of its own proceedings. If the power did not exist, it would be utterly impracticable to transact the business of the nation, either at all, or at least with decency, deliberation, and order. The humblest assembly of men is understood to possess this power; and it would be absurd to deprive the councils of the nation of a like authority. But the power to make rules would be nugatory, unless it was coupled with a power to punish for disorderly behaviour, or disobedience to those rules. And as a member might be so lost to all sense of dignity and duty, as to disgrace the house by the grossness of his conduct, or interrupt its deliberations by perpetual violence or clamour, the power to expel for very aggravated misconduct was also indispensable, not as a common, but as an ultimate redress for the grievance. But such a power, so summary, and at the same time so subversive of the rights of the people, it was foreseen, might be exerted for mere purposes of faction or party, to remove a patriot, or to aid a corrupt measure; and it has therefore been wisely guarded by the restriction, that there shall be a concurrence of two thirds of the members, to justify
an expulsion. 1 This clause, requiring A concurrence of two thirds, was not in the original draft of the constitution, but it was inserted by a vote of ten states, one being divided. 2 A like generalauthority to expel, exists in the British house of commons; and in the legislative bodies of many of the states composing the Union.
§ 836. What must be the disorderly behaviour, which the house may punish, and what punishment, other than expulsion, may be inflicted, do not appear to have been settled by any authoritative adjudication of either house of congress. A learned commentator supposes, that members can only be punished for misbehaviour committed during the session of congress, either within, or without the walls of the house; though he is also of opinion, that expulsion may be inflicted for criminal conduct committed in any place. 3 He does not say, whether it must be committed during the session of congress or otherwise. In July, 1797, William Blount was expelled from the senate, for "a high misdemeanour, entirely inconsistent with his public trust and duty as a senator." The offence charged against him was an attempt to seduce an American agent among the Indians from his duty, and to alienate the affections and confidence of the Indians from the public authorities of the United States, and a negotiation for services in behalf of the British government among the Indians. It was not a statuteable offence; nor was it committed in his official character; nor was it committed during the session of congress; nor at the seat of government.
Yet by an almost unanimous vote1 he was expelled from that body; and he was afterwards impeached (as has been already stated) for this, among other charges. 5 It seems, therefore, to be settled by the senate upon full deliberation, that expulsion may be for any misdemeanour, which, though not punishable by any statute, is inconsistent with the trust and duty of a senator. In the case of John Smith (a senator) in April, 1808, the charge against him was for participation in the supposed treasonable conspiracy of Colonel Burr. But the motion to expel him was lost by a want of the constitution majority of two thirds of the members of the senate. 6 The precise ground of the failure of the motion does not appear; but it may be gathered from the arguments of his counsel that it did not turn upon any doubt, that the power of the senate extended to cases of misdemeanour, not done in the presence or view of the body; but most probably it was decided upon some doubt as to the facts. 7 It may be thought difficult to draw a clear line of distinction between the right to inflict the punishment of expulsion, and any other punishment upon a member, founded on the time, place, or nature of the offence. The power to expel a member is not in the British house of commons confined to offences committed by the party as a member, or during the session of parliament; but it extends to all cases,
where the offence is such, as, in the judgment of the house, unfits him for parliamentary duties. 8
§ 837. The next clause is, "each house shall keep a journal of its proceedings, and from time to time publish the same, except such parts, as may in their judgment require secrecy. And the yeas and nays of the members of either house on any question shall, at the desire of one fifth of those present, be entered on the journal."
§ 838. This clause in its actual form did not pass in the convention without some struggle and some propositions of amendment. The first part finally passed by an unanimous vote; the exception was carried by a close vote of six states against four, one being divided; and the remaining clause, after an ineffectual effort to strike out "one filth," and insert in its stead, "if every member present," was finally adopted by an unanimous vote. 9 The object of the whole clause is to ensure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constituents. And it is founded in sound policy and deep political foresight. Intrigue and cabal are thus deprived of some of their main resources, by plotting and devising measures in secrecy. 10 The public mind is enlightened by an attentive examination of the public measures; patriotism, and integrity, and wisdom obtain their due reward; and votes are ascertained, not by vague conjecture, but by positive facts. Mr. Justice Blackstone seems, indeed, to suppose, that
votes openly and publicly given are more liable to intrigue and combination, than those given privately and by ballot. "This latter method," says he, "may be serviceable to prevent intrigues and unconstitutional combinations. But it is impossible to be practised with us, at least in the house of commons, where every member's conduct is subject to the future censure of his constituents, and therefore should be openly submitted to their inspection." 11
§ 839. The history of public assemblies, or of private votes, does not seem to confirm the former suggestion of the learned author. Intrigue and combination are more commonly found connected with secret sessions, than with public debates, with the workings of the ballot box, than with the manliness of viva voce votes. At least, it may be questioned, if the vote by ballot has, in the opinion of a majority of the American people, obtained any decisive preference over vica voce voting, even at elections. The practice in New England is one way, and at the South another way. And as to the votes of representatives and senators in congress, no man has yet been bold enough to vindicate a secret or ballot vote, as either more safe, or more wise, more promotive of independence in the members, or more beneficial to their constituents. So long as known and open responsibility is valuable as a check, or an incentive among the representatives of a free people, so long a journal of their proceedings, and their votes, published in the face of the world, will continue to enjoy public favour, and be demanded by public opinion. When the people become indifferent to the acts of their representatives, they will have ceased to take much interest in the preservation of their liberties.
When the journals shall excite no public interest, it will not be matter of surprise, if the constitution itself is silently forgotten, or deliberately violated.
§ 840. The restriction of calls of the yeas and nays to one fifth is founded upon the necessity of preventing too frequent a recurrence to this mode of ascertaining the votes, at the mere caprice of an individual. A call consumes a great deal of time, and often embarrasses the just progress of beneficial measures. It is said to have been often used to excess in the congress under the confederation; 12 and even under the present constitution it is notoriously used, as an occasional annoyance, by a dissatisfied minority, to retard the passage of measures, which are sanctioned by the approbation of a strong majority. The check, therefore, is not merely theoretical; and experience shows, that it has been resorted to, at once to admonish, and to control members, in this abuse of the public patience and the public indulgence.
§ 841. The next clause is, "neither house, during the session of congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place, than that, in which the two houses shall be sitting." 13 It is observable, that the duration of each session of congress, (subject to the constitutional termination of their official agency,) depends solely upon their own will and pleasure, with the single exception, as will be presently seen, of cases, in which the two houses disagree in respect to the time of adjournment. In no other case is the president allowed to interfere with the time and extent of their deliberations. And thus their independence is effectually guarded
against any encroachment on the part of the executive. 14 Very different is the situation of parliament under the British constitution; for the king may, at any time, put an end to a session by a prorogation of parliament, or terminate the existence of parliament by a dissolution, and a call of a new parliament. It is true, that each house has authority to adjourn itself separately; and this is commonly done from day to day, and sometimes for a week or a month together, as at Christmas and Easter, or upon other particular occasions. But the adjournment of one house is not the adjournment of the other. And it is usual, when the king signifies his pleasure, that both, or either of the houses should adjourn themselves to a certain day, to obey the king's pleasure, and adjourn accordingly; for otherwise a prorogation would certainly follow. 15
§ 842. Under the colonial governments, the undue exercise of the same power by the royal governors constituted a great public grievance, and was one of the numerous cases of misrule, upon which the declaration of independence strenuously relied. It was there solemnly charged against the king, that he had called together legislative [colonial] bodies at places, unusual, uncomfortable, and distant from the repository of the public records; that he had dissolved representative bodies, for opposing his invasions of the rights of the people; and after such dissolutions, he had refused to reassemble them for a long period of time. It was natural, therefore, that the people of the United States should entertain a strong jealousy on this subject, and should interpose a constitutional barrier against any such abuse
by the prerogative of the executive. The state constitutions generally contain some provision on the same subject, as a security to the independence of the legislature.
§ 842. These are all the powers and privileges, which are expressly vested in each house of congress by the constitution. What further powers and privileges they incidentally possess has been a question much discussed, and may hereafter be open, as new cases arise, to still further discussion. It is remarkable, that no power is conferred to punish for any contempts committed against either house; and yet it is obvious, that, unless such a power, to some extent, exists by implication, it is utterly impossible for either house to perform its constitutional functions. For instance, how is either house to conduct its own deliberations, if it may not keep out, or expel intruders? If it may not require and enforce upon strangers silence and decorum in its presence? If it may not enable its own members to have free ingress, egress, and regress to its own hall of legislation? And if the power exists, by implication, to require the duty, it is wholly nugatory, unless it draws after it the incidental authority to compel obedience, and to punish violations of it. It has been suggested by a learned commentator, quoting, the language of Lord Bacon, 16 that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated; and hence he deduces the conclusion, that, as the power to punish contempts is not among those enumerated, as belonging to either house, it does not exist. 17 Now, however wise or correct the maxim of Lord Bacon is in a general sense,
as a means of interpretation, it is not the sole rule. It is no more true, than another maxim of a directly opposite character, that where the end is required, the means are, by implication, given. Congress are required to exercise the powers of legislation and deliberation. The safety of the rights of the nation require this; and yet, because it is not expressly said, that congress shall possess the appropriate means to accomplish this end, the means are denied, and the end may be defeated. Does not this show, that rules of interpretation, however correct in a general sense, must admit of many qualifications and modifications in their application to the actual business of human life and human laws? Men do not frame constitutions of government to suspend its vital interests, and powers, and duties, upon metaphysical doubts, or ingenious refinements. Such instruments must be construed reasonably, and fairly, according to the scope of their purposes, and to give them effect and operation, not to cripple and destroy them. They must be construed according to the common sense applied to instruments of a like nature; and in furtherance of the fundamental objects proposed to be attained, and according to the known practice and incidents of bodies of a like nature.
§ 843. We may resort to the common law to aid us in interpreting such instruments, and their powers; for that law is the common rule, by which all our legislation is interpreted. It is known, and acted upon, and revered by the people. It furnishes principles equally for civil and criminal justice, for public privileges, and private rights. Now, by the common law, the power to punish contempts of this nature belongs incidentally to courts of justice, and to each house of parliament. No man ever doubted, or denied its existence, as to our
colonial assemblies in general, whatever may have been thought, as to particular exercises of it. 18 Nor is this power to be viewed in an unfavourable light. It is a privilege, not of the members of either house; but, like all other privileges of congress, mainly intended as a privilege of the people, and for their benefit. 19 Mr. Justice Blackstone has, with great force, said, that "laws, without a competent authority to secure their administration from disobedience and contempt, would be vain and nugatory. A power, therefore, in the supreme courts of justice to suppress such contempts, &c., results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal." 20 And the same reasoning has been applied, with equal force, by another learned commentator to legislative bodies. "It would," says he, "be inconsistent with the nature of such a body to deny it the power of protecting itself from injury, or insult. If its deliberations are not perfectly free, its constituents are eventually injured. This power has never been denied in any country, and is incidental to the nature of all legislative bodies. If it possesses such a power in the case of an immediate insult or disturbance, preventing the exercise of its ordinary functions, it is impossible to deny it in other cases, which, although less immediate or violent, partake of the same character, by having a tendency to impair the firm and honest discharge of public duties." 21
§ 844. This subject has of late undergone a great deal of discussion both in England and America; and
has finally received the adjudication of the highest judicial tribunals in each country. In each country upon the fullest consideration the result was the same, viz. that the power did exist, and that the legislative body was the proper and exclusive forum to decide, when the contempt existed, and when there was a breach of its privileges; and, that the power to punish followed, as a necessary incident to the power to take cognizance of the offence. 22 The judgment of the
Supreme Court of the United States, in the case alluded to, contains so elaborate and exact a consideration of the whole argument on each side, that it wilt be far more satisfactory to give it in a note, as it stands in the printed opinion, than to hazard, by any abridgment, impairing the just force of the reasoning. 23
§ 845. This is not the only case, in which the house or representatives hag exerted the power to arrest, and punish fox a contempt committed within the walls or the
house. The power was exerted1 in the case of Robert Randall, in December, 1795, for an attempt to corrupt a member; 25 in 1796, in the case of ---, a chal-
lenge given to a member, which was held a breach of privilege; 26 and in May, 1832, in the case of Samuel Houston, for an assault upon a member for words spoken
in his place, and afterwards printed, reflecting on the character of Houston. 27 In the former case, the house punished the offence by imprisonment; in the
latter, by a reprimand by the speaker. So in 1800, in the case of William Duane, for a printed libel against the senate, the party was held guilty of a contempt, and
punished by imprisonment. 28 Nor is there any thing peculiar in the claim under the constitution of the United States. The same power has been claimed, and
exercised repeatedly, under the state governments, independent of any, special constitutional provision, upon the broad ground stated, by Mr. Chief Justice Shippen, that the members of the legislature are legally, and inherently possessed of all such privileges, as are necessary to enable them, with freedom and safety, to execute the great trust reposed in them by the body of the people, who elected them. 29
§ 846. The power to punish for contempts, thus asserted both in England and America, is confined to punishment during the session of the legislative body, and cannot be extended beyond it. 30 It seems, that the power of congress to punish cannot, in its utmost extent, proceed beyond imprisonment; and then it terminates with the adjournment, or dissolution of that body. 31 Whether a fine may not be imposed, has been recently4 made a question in a case of contempt
before the house of lords; upon which occasion Lord Chancellor Brougham expressed himself in the negative, and the other law lords, Eldon and Tenterden, in the affirmative; but the point was not then solemnly decided. 33 It had, however, been previously affirmed by the house of lords in the case of Rex v. Flower, (8 T.R. 314,) in case of a libel upon one of the Bishops. Lord Kenyon then said, that in ascertaining and punishing for a contempt of its privileges, the house acted in a judicial capacity. 34
§ 847. The sixth section of the first article contains an enumeration of the rights, privileges, and disabilities of the members of each house in their personal and individual characters, as contradistinguished from the rights, privileges, and disabilities of the body, of which they are members. It may here, again, be remarked, that these rights and privileges are, in truth, the rights and privileges of their constituents, and for their benefit and security, rather than the rights and privileges of the member for his own benefit and security. 35 In like manner, the disabilities imposed are founded upon the same comprehensive policy; to guard the powers of the representative from abuse, and to secure a wise, impartial, and uncorrupt administration of his duties.
§ 848. The first clause is as follows: "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. They shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to, and returning from, the same. And for any speech or debate in either house they shall not be questioned in any other place."
§ 849. In respect, to compensation, there is, at present, a marked distinction between the members of the British parliament, and the members of congress; the former not being, at present, entitled to any pay. Formerly, indeed, the members of the house of commons were entitled to receive wages from their constituents; but the last known case is that of Andrew Marvell, who was a member from Hull, in the first parliament after the restoration of Charles the Second. Four shillings sterling a day used to be allowed for a knight of the shire; and two shillings a day for a member of a city or borough; and this rate was established in the reign of Edward the Third. And we are told, that two shillings a day, the allowance to a burgess, was so considerable a sum, in these ancient times, that there are many instances, where boroughs petitioned to be excused from sending members to parliament, representing, that they were engaged in building bridges or other public works, and therefore, unable to bear so extraordinary an expense. 36 It is believed, that the practice in America during its colonial state was, if not universally, at least generally, to allow a
compensation to be paid to members; and the practice is believed to be absolutely universal, under the state constitutions. The members are not, however, always paid out of the public treasury; but the practice still exists, constitutionally, or by usage, in some of the states, to charge the amount of the compensation fixed by the legislature upon the constituents, and levy it in the state tax. That has certainly been the general course in the state of Massachusetts; and it was probably adopted from the ancient practice in England.
§ 850. Whether it is, on the whole, best to allow to members of legislative bodies a compensation for their services, or whether their services should be considered merely honorary, is a question admitting of much argument on each state; and it has accordingly found strenuous advocates, and opponents, not only in speculation, but in practice. It has been already seen, that in England none is now allowed, or claimed; and there can be little doubt, that public opinion is altogether in favour of their present course. On the other hand, in America an opposite opinion prevails among those, whose influence is most impressive with the people on such subjects. It is not surprising, that under such circumstances, there should have been a considerable diversity of opinion manifested in the convention itself. The proposition to allow compensation out of the public treasury, to members of the house of representatives, was originally carried by a vote of eight states against three; 37 and to the senators by a vote of seven states against three, one being divided. 38 At a subsequent period, a motion to strike out the payment out of the public treasury was lost by a vote of four states in
the affirmative, and five in the negative, two being divided; 39 and the whole proposition, as to representatives, was (as amended) lost by a vote of five states for it, and five against it, one being divided. 40 And as to senators, a motion was made, that they should be paid by their respective states, which was lost, five states voting for it, and six against it; and then the proposition to pay them out of the public treasury was lost by a similar vote. 41 At a subsequent period a proposition was reported, that the compensation of the members of both houses should be made by the state, in which they were chosen; 42 and ultimately the present plan was agreed to by a vote of nine states against two. 43 Such a fluctuation of opinion exhibits in a strong light the embarrassing considerations, which surrounded the subject. 44
§ 851. The principal reasons in favour of a compensation may be presumed to have been the following. In the first place, the advantage, it secured, or commanding the first talents of the nation in the public councils, by removing a virtual disqualification, that of poverty, from that large class of men, who, though favoured by nature, might not be favoured by fortune. It could hardly be expected, that such men would make the necessary sacrifices in order to gratify their ambition for a public station; and if they did, there was a corresponding danger, that they might be compelled by their necessities, or tempted by their wants, to yield up their independence, and perhaps their integrity, to the allurements of the corrupt, or the opulent. 45 In the
next place, it would, in a proportionate degree, gratify the popular feeling by enlarging the circle of candidates, from which members might be chosen, and bringing the office within the reach of persons in the middle ranks of society, although they might not possess shining talents; a course best suited to the equality found, and promulgated in a republic. In the next place, it would make a seat in the national councils, as attractive, and perhaps more so, than in those of the state, by the superior emoluments of office. And in the last place, it would be in conformity to a long and well settled practice, which embodied public sentiment, and had been sanctioned by public approbation. 46
§ 852. On the other hand, it might be, and it was, probably, urged against it, that the practice of allowing compensation was calculated to make the office rather more a matter of bargain and speculation, than of high political ambition. It would operate, as an inducement to vulgar and groveling demagogues, of little talent, and narrow means, to defeat the claims of higher candidates, than themselves; and with a view to the compensation alone to engage in all sorts of corrupt intrigues to procure their own election. It would thus degrade these high trusts from being deemed the reward of distinguished merit, and strictly honorary, to a mere traffic for political office, which would first corrupt the people at the polls, and then subject their liberties to be bartered by their venal candidate. Men of talents in this way would be compelled to degradation, in order to acquire office, or would be excluded by more unworthy, or more cunning candidates, who would feel, that the labourer was worthy of his hire. There is no
danger, that the want of compensation would deter men of suitable talents and virtues, even in the humbler walks of life, from becoming members; since it could scarcely be presumed, that the public gratitude would not, by other means, aid them in their private business, and increase their just patronage. And if, in a few cases, it should be otherwise, it should not be forgotten, that one of the most wholesome lessons to be taught in republics was, that men should learn suitable economy and prudence in their private affairs; and that profusion and poverty were with a few splendid exceptions, equally unsafe to be entrusted with the public rights and interests, since, if they did not betray, they would hardly be presumed willing to protect them. The practice of England abundantly showed, that compensation was not necessary to bring into public life the best talents and virtues of the nation. In looking over her list of distinguished statesmen, of equal purity and patriotism, it would be found, that comparatively few had possessed opulence; and many had struggled through life with the painful pressure of narrow resources, the res augustae domi. 47
§ 853. It does not become the commentator to say, whether experience has as yet given more weight to the former, than to the latter reasons. Certain it is, that the convention, in adopting the rule of allowing a compensation, had principally in view the importance of securing the highest dignity and independence in the discharge of legislative functions, and the justice, as well as duty of a free people, possessing adequate means, to indemnify those, who were employed in their service, against all the sacrifices incident to their
station. It has been justly observed, that the principle of compensation to those, who render services to the public, runs through the whole constitution. 48
§ 854. If it be proper to allow a compensation for services to the members of congress, there seems the utmost propriety in its being paid out of the public treasury of the United States. The labour is for the benefit of the nation, and it should properly be remunerated by the nation. Besides; if the compensation were to be allowed by the states, or by the constituents of the members, if left to their discretion, it might keep the latter in a state of slavish dependence, and might introduce great inequalities in the allowance. And if it were to be ascertained by congress, and paid by the constituents, there would always be danger, that the rule would be fixed to suit those, who were the least enlightened, and the most parsimonious, rather than those, who acted upon a high sense of the dignity and the duties of the station. Fortunately, it is left for the decision of congress. The compensation is "to be ascertained by law;" and never addresses itself to the pride, or the parsimony, the local prejudices, or local habits of and part of the Union. It is fixed with a liberal view to the national duties, and is paid from the national purse. If the compensation had been left, to be fixed by the state legislature, the general government would have become dependent upon the governments of the states; and the latter could almost, at their pleasure, have dissolved it. 49 Serious evils were felt from this source under the confederation, by which each state was to maintain its own delegates in congress; 50 for it was found, that the
states too often were operated upon by local considerations, as contradistinguished from general and national interests. 51
§ 855. The only practical question, which seems to have been farther open upon this head, is, whether the compensation should have been ascertained by the constitution itself, or left, (as it now is,) to be ascertained from time to time by congress. If fixed by the constitution, it might, from the change of the value of money, and the modes of life, have become too low, and utterly inadequate. Or it might have become too high in consequence of serious changes in the prosperity of the nation. 52 It is wisest, therefore, to have it left, where it is, to be decided by congress from time to time, according to their own sense of justice, and a large view of the national resources. There is no danger, that it will ever become excessive, without exciting, general discontent, and then it will soon be changed from the reaction of public opinion. The danger rather is, that public opinion will become too sensitive upon this subject; and refuse to allow any addition to what may be at the time a very moderate allowance. In the actual practice of the government, this subject has rarely been stirred without producing violent excitements at the elections. This alone is sufficient to establish the safety of the actual exercise of the power by the bodies, with which it is lodged, both in the state and national legislatures. 53 It is proper, however, to add, that the omission to provide some constitutional mode of fixing the pay of members of congress, without leaving the subject to their discretion, formed in some minds a strong objection to the constitution. 54
§ 856. The next part of the clause regards the privilege of the members from arrest, except for crimes, during their attendance at the sessions of congress, and their going to, and returning from them. This privilege is conceded by law to the humblest suitor and witness in a court of justice; and it would be strange, indeed, if it were denied to the highest functionaries of the state in the discharge of their public duties. It belongs to congress in common with all other legislative bodies, which exist, or have existed in America, since its first settlement, under every variety of government; and it has immemorially constituted a privilege of both houses of the British parliament. 55 It seems absolutely indispensable for the just exercise of the legislative power in every nation, purporting to possess a free constitution of government; and it cannot be surrendered without endangering the public liberties, as well as the private independence of the members. 56
§ 857. This privilege from arrest, privileges them of course against all process, the disobedience to which is punishable by attachment of the person, such as a subpaena ad respondendum, aut testificandum, ora summons to serve on a jury; and (as has been justly observed) with reason, because a member has superiour duties to perform in another place. When a representative is withdrawn from his seat by a summons, the 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 the evil admits of no com-
parison. 57 The privilege, indeed, is deemed not merely the privilege of the member, or his constituents, but the privilege of the house also. And every man must at his peril take notice, who are the members of the house returned of record. 58
§ 858. The privilege of the peers of the British parliament to be free from arrest, in civil cases, is for ever sacred and inviolable. For other purposes, (as for common process,) it seems, that their privilege did not extend, but from the teste of the summons to parliament, and for twenty days before and after the session. But that period has now, as to all common process but arrest, been taken away by statute. 59 The privilege of the members of the house of commons from arrest is for forty days after every prorogation, and for forty days before the next appointed meeting, which in effect is as long, as the parliament lasts, it seldom being prorogued for more than four score days, at a time. 60 In case of a dissolution of parliament, it does not appear, that the privilege is confined to any precise time; the rule being, that the party is entitled to it for a convenient time, redeundo. 61 § 859. The privilege of members of parliament formerly extended also to their servants and goods, so that they could not be arrested. But so far, as it went to obstruct the ordinary course of justice in the British courts, it has since been restrained. 62 In the mem-
bers of congress, the privilege is strictly personal, and does not extend to their servants or property. It is also, in all cases confined to a reasonable time, eundo, morando, et redeundo, instead of being limited by a precise number of days. It was probably from a survey of the abuses of privilege, which for a long time defeated in England the purposes of justice, that the constitution has thus marked its boundary with a sedulous caution. 63
§ 860. The effect of this privilege is, that the arrest of the member is unlawful, and a trespass ab initio, for which he may maintain an action, or proceed against the aggressor by way of indictment. He may also be discharged by motion to a court of justice, or upon a writ of habeas corpus; 64 and the arrest may also be punished, as a contempt of the house. 65
§ 861. In respect to the time of going and returning, the law is not 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. Nor does it nicely scan his road, nor is his protection forfeited, by a little deviation from that, which is most direct; for it is supposed. that some superior convenience or necessity directed it. 66 The privilege from arrest takes place by force of the election, and before the member has taken his seat, or is sworn. 67
§ 862. The exception to the privilege is, that it shall not extend to "treason, felony, or breach of the peace."
These words are the same as those, in which the exception to the privilege of parliament is usually expressed at the common law, and was doubtless borrowed from that source. 68 Now, as all crimes are offences against the peace, the phrase "breach of the peace" would seem to extend to all indictable offence, as well those, which are, in fact, attended with force and violence, as those, which are only constructive breaches of the peace of the government, inasmuch as they violate its good order. 69 And so in truth it was decided in parliament, in the case of a seditious libel, published by a member, (Mr. Wilkes,) against the opinion of Lord Camden and the other judges of the Court of Common Pleas; 70 and, as it will probably now be thought, since the party spirit of those times has subsided, with entire good sense, and in furtherance of public justice. 71 It would be monstrous, that any member should protect himself from arrest, or punishment for a libel, often a crime of the deepest malignity and mischief, while he would be liable to arrest, for the pettiest assault, or the most insignificant breach of the peace.
§ 863. The next great and vital privilege is the freedom of speech and debate, without which all other privileges would be comparatively unimportant, or ineffectual. 72 This privilege also is derived from the practice of the British parliament, and was in full exercise in our colonial legislatures, and now belongs to the legislature of every state in the Union, as matter of constitutional right. In the British parliament it is a claim of immemorial right, and is now farther fortified by an act
of parliament; and it is always particularly demanded of the king in person by the speaker of the house of commons, at the opening of every new parliament. 73 But this privilege is strictly confined to things done in the course of parliamentary proceedings, and does not cover things done beyond the place and limits of duty. 74 Therefore, although a speech delivered in the house of commons is privileged, and the member cannot be questioned respecting, it elsewhere; yet, if he publishes his speech, and it contains libellous matter, he is liable to an action and prosecution therefor, as in common cases of libel. 75 And the same principles seem applicable to the privilege of debate and speech in congress. No man ought to have a right to defame others under colour of a performance of the duties of his office. And if he does so in the actual discharge of his duties in congress, that furnishes no reason, why he should be enabled through the medium of the press to destroy the reputation, and invade the repose of other citizens. It is neither within the scope of his duty, nor in furtherance of public rights, or public policy. Every citizen has as good a right to be protected by the laws from malignant scandal, and false charges, and defamatory imputations, as a member of congress has to utter them in his seat. If it were otherwise, a man's character might be taken away without the possibility of redress, either by the malice, or indiscretion, or overweaning self-conceit of a member of congress. 76 It is proper, however, to apprise the learned reader, that it has been recently denied in congress by very distinguished lawyers, that the privilege of speech and debate in con-
gress does not extend to publication of his speech. And they ground themselves upon an important distinction arising from the actual differences between English and American legislation. In the former, the publication of the debates is not strictly lawful, except by license of the house. In the latter, it is a common right, exercised and supported by the direct encouragement of the body. This reasoning deserves a very attentive examination. 77
§ 864. The next clause reads the disqualifications of members of congress; and is as follows: "No senator or representative shall, during the time, for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time. And no person, holding any office under the United States, shall be a member of either house of congress during his continuance in office." This clause does not appear to have met with any opposition in the convention, as to the propriety of some provision on the subject, the principal question being, as to the best mode of expressing the disqualifications. 78 It has been deemed by one commentator an admirable provision against venality, though not perhaps sufficiently guarded to prevent evasion. 79 And it has been elaborately vindicated by another with uncommon earnestness. 80 The reasons for excluding persons from offices, who have been concerned in creating them, or increasing their emoluments,
are to take away, as far as possible, any improper bias in the vote of the representative, and to secure to the constituents some solemn pledge of his disinterestedness. The actual provision, however, does not go to the extent of the principle; for his appointment is restricted only "during the time, for which he was elected;" thus leaving in full force every influence upon his mind, if the period of his election is short, or the duration of it is approaching its natural termination. It has sometimes been matter of regret, that the disqualification had not been made co-extensive with the supposed mischief; and thus have for ever excluded members from the possession of offices created, or rendered more lucrative by themselves. 81 Perhaps there is quite as much wisdom in leaving the provision, where it now is.
§ 865. It is not easy, by any constitutional or legislative enactments, to shut out all, or even many of the avenues of undue or corrupt influence upon the human mind. The great securities for society -- those, on which it must for ever rest in a free government -- are responsibility to the people through elections, and personal character, and purity of principle. Where these are wanting, there never can be any solid confidence, or any deep sense of duty. Where these exist, they become a sufficient guaranty against all sinister influences, as well as all gross offences. It has been remarked with equal profoundness and sagacity, that, as there is a degree of depravity in mankind, which requires a certain degree of circumspection and distrust; so there are other qualities in human nature, which justify a certain portion of esteem and confidence. Republican government presupposes the existence of
these qualities in a higher form, than any other. 82 It might well be deemed harsh to disqualify an individual from any office, clearly required by the exigencies of the country, simply because he had done his duty. 83 And, on the other hand, the disqualification might operate upon many persons, who might find their way into the national councils, as a strong inducement to postpone the creation of necessary offices, lest they should become victims of their high discharge of duty. The chances of receiving an appointment to a new office are not so many, or so enticing, as to bewilder many minds; and if they are, the aberrations from duty are so easily traced, that they rarely, or never escape the public reproaches. And if influence is to be exerted by the executive for improper purposes, it will be quite as easy, and in its operation less seen, and less suspected, to give the stipulated patronage in another form, either of office, or of profitable employment, already existing. And even a general disqualification might be evaded by suffering the like patronage silently to fall into the hands of a confidential friend, or a favourite child or relative. A dishonourable traffic in votes, if it should ever become the engine of party or of power in our country, would never be restrained by the slight network of any constitutional provisions of this sort. It would seek, and it would find its due rewards in the general patronage of the government, or in the possession of the offices conferred by the people, which would bring emolument, as well as influence, and secure power by gratifying favourites. The history of our state governments (to go no farther) will scarcely be thought by any ingenuous mind to afford any proofs, that the ab-
sence of such a disqualification has rendered state legislation less pure, or less intelligent; or, that the existence of such a disqualification would have retarded one rash measure, or introduced one salutary scruple into the elements of popular or party strife. History, which teaches us by examples, establishes the truth beyond all reasonable question, that genuine patriotism is too lofty in its honour, and too enlightened in its object, to need such checks; and that weakness and vice, the turbulence of faction, and the meanness of avarice, are easily bought, notwithstanding all the efforts to fetter, or ensnare them.
§ 866. The other part of the clause, which disqualifies persons holding any office under the United States from being members of either house during their continuance in office, has been still more universally applauded; and has been vindicated upon the highest grounds of public policy. It is doubtless founded in a deference to state jealousy, and a sincere desire to obviate the fears, real or imaginary, that the general government would obtain an undue preference over the state governments. 84 It has also the strong recommendation, that it prevents any undue influence from office, either upon the party himself, or those, with whom he is associated in legislative deliberations. The universal exclusion of all persons holding office is (it must be admitted) attended with some inconveniences. The heads of the departments are, in fact, thus precluded from proposing, or vindicating their own measures in the face of the nation in the course of debate; and are compelled to submit them to other men, who are either imperfectly acquainted with the measures, or are indif-
ferent to their success or failure. Thus, that open and public responsibility for measures, which properly belongs to the executive in all governments, and especially in a republican government, as its greatest security and strength, is completely done away. The executive is compelled to resort to secret and unseen influence, to private interviews, and private arrangements, to accomplish its own appropriate purposes; instead of proposing and sustaining its own duties and measures by a bold and manly appeal to the nation in the face of its representatives. One consequence of this state of things is, that there never can be traced home to the executive any responsibility for the measures, which are planned, and carried at its suggestion. Another consequence will be, (if it has not yet been,) that measures will be adopted, or defeated by private intrigues, political combinations, irresponsible recommendations, and all the blandishments of office, and all the deadening weight of silent patronage. The executive will never be compelled to avow, or to support any opinions. His ministers may conceal, or evade any expression of their opinions. He will seem to follow, when in fact he directs the opinions of congress. He will assume the air of a dependent instrument, ready to adopt the acts of the legislature, when in fact his spirit and his wishes pervade the whole system of legislation. If corruption ever eats its way silently into the vitals of this republic, it will be, because the people are unable to bring responsibility home to the executive through his chosen ministers. They will be betrayed, when their suspicions are most lulled by the executive, under the disguise of an obedience to the will of congress. If it would not hare been safe to trust the heads of departments, as representatives, to the choice of the peo-
ple, as their constituents, it would have been at least some gain to have allowed them a seat, like territorial delegates, in the house of representatives, where they might freely debate without a title to vote. In such an event, their influence, whatever it would be, would be seen, and felt, and understood, and on that account would hare involved little danger, and more searching jealousy and opposition; whereas, it is now secret and silent, and from that very cause may become overwhelming.
§ 867. One other reason in favour of such a right is, that it would compel the executive to make appointments for the high departments of government, not from personal or party favourites, but from statesmen of high public character, talents, experience, and elevated services; from statesmen, who had earned public favour, and could command public confidence. At present, gross incapacity may be concealed under official forms, and ignorance silently escape by shining the labours upon more intelligent subordinates in office. The nation would be, on the other plan, better served; and the executive sustained by more masculine eloquence, as well as more liberal learning.
§ 868. In the British parliament no restrictions of the former sort exist, and few of the latter, except such as have been created by statute. 85 It is true, that an acceptance of any office under the crown is a vacation of a seat in parliament. This is wise; and secures the people from being betrayed by those, who hold office, and whom they do not choose to trust. But generally, they are re-eligible; and are entitled, if the people so choose, again to hold a seat in the house of commons,
notwithstanding their official character. 86 The consequence is, that the ministers of the crown assume an open public responsibility; and if the representation of the people in the house of commons were, as it is under the national government, founded upon a uniform rule, by which the people might obtain their full share of the government, it would be impossible for the ministry to exercise a controlling influence, or escape (as in America they may) a direct palpable responsibility. There can be no danger, that a free people will not be sufficiently watchful over their rulers, and their acts, and opinions, when they are known and avowed; or, that they will not find representatives in congress ready to oppose improper measures, or sound the alarm upon arbitrary encroachments. The real danger is, when the influence of the rulers is at work in secret, and assumes no definite shape; when it guides with a silent and irresistible sway, and yet covers itself under the forms of popular opinion, or independent legislation; when it does nothing, and yet accomplishes every thing.
§ 869. Such is the reasoning, by which many enlightened statesmen have not only been led to doubt, but even to deny the value of this constitutional disqualification. And even the most strenuous advocates of it are compelled so far to admit its force, as to concede, that the measures of the executive government, so far as they fall within the immediate department of a particular officer, might be more (directly and fully explained on the floor of the house. 87 Still, however, the reasoning from the British practice has not been deemed satisfactory by the public; and the guard in-
terposed by the constitution has been received with general approbation, and has been thought to have worked well during our experience under the national government. 88 Indeed, the strongly marked parties in the British parliament, and their consequent dissensions have been ascribed to the non-existence of any such restraints; and the progress of the influence of the crown, and the supposed corruptions of legislation, have been by some writers traced back to the same original blemish. 89 Whether these inferences are borne out by historical facts, is a matter, upon which different judgments may arrive at different conclusions; and a work, like the present, is not the proper place to discuss them.