298 CONSTITUTION OF THE U. STATES. [BOOK III.
PRIVILEGES AND POWERS OF BOTH HOUSES OF
§ 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
CH. XI.] PRIVILEGES OF CONGRESS. 299
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
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.
1 Mr. J. Q. Adams's Report to the senate in the case of John Smith, 31
Dec. 1807; 1 Hall's Law Journ. 459; Sergeant on Const. Law, ch. 28,
2 Journal of Convention. 218, 243.
3 Rawle on the Constitution, ch, 4, p. 47
300 CONSTITUTION OF THE U. STATES. [BOOK III.
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.2 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.3 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.4 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,
1 Yeas 25, nays 1.
2 See Journal of Senate, 8 July, 1797; Sergeant's Const. Law, ch. 28, p.
286; 1 Hall's Law Journ. 459, 471.
3 Yeas 19, nays 10.
4 1 Hall's Law Journ. 459, 471; Journ. of Senate, 9 April, 1808;
Sergeant's Const. Law, ch. 28, p. 287, 288. See also proceedings of the
senate in the case of Humphrey Marshall, 22 March, 1796; Sergeant's Const.
Law, ch. 28, p. 285.
CH. XII.] PRIVILEGES OF CONGRESS. 301
where the offence is such, as, in the judgment of the house, unfits him for
§ 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
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.2 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.3 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
1 1 Black. Comm. 163, and Christian's note; Id. 167 and note. See also Rex
v. Wilkes, 2 Wilson's R. 251; Com. Dig. Parliament, G. 5. See 1 Hall's Law
Term, 459, 466.
2 Journal of the Convention, p. 219, 243, 244, 245, 354, 373.
3 1 Tucker's Black. Comm. App. 204, 205; 2 Wilson's Lect. 157, 158;
302 CONSTITUTION OF THE U. STATES. [BOOK III.
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."1
§ 839. The history of public assemblies, or of private votes,
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.
1 1 Black. Comm. 181, 182.
CH. XII.] PRIVILEGES OF CONGRESS. 303
When the journals shall excite no public interest, it will not be matter of
surprise, if the constitution itself is silently forgotten, or deliberately
§ 840. The restriction of calls of the yeas and nays to one
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;1 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
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."2 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
1 1 Tuck. Black. Comm. App. 205, 206.
2 See Journ. of Convention, 219, 246. See also 2 Elliot's Debates, 276, 277.
304 CONSTITUTION OF THE U. STATES. [BOOK III.
against any encroachment on the part of the executive.1 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.2
§ 842. Under the colonial governments, the undue exercise of
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
1 Tucker's Black. Comm. App. 206, 207.
2 1 Black. Comm. 185 to 190; 2 Wilson's Law Lect. 154, 155; Com. Dig.
Parliament, L M. N. O. P.
CH. XII.] PRIVILEGES OF CONGRESS. 305
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
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,1 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.2 Now, however
wise or correct the maxim of Lord Bacon is in a general sense,
1 Advancement of Learning; 1 Tuck. Black. App. 200, note.
2 1 Tucker's Black. 200.
306 CONSTITUTION OF THE U. STATES. [BOOK III.
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
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
CH. XII.] PRIVILEGES OF CONGRESS. 307
colonial assemblies in general, whatever may have been thought, as to
particular exercises of it.1 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.2 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."3 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."4
§ 844. This subject has of late undergone a great deal of
in England and America; and
1 4 Black. Comm. 283, 284, 285, 286; 1 Black. Comm. 164, 165; Com. Dig.
Parliament, G. 2, 5; Burdett v. Abbott, 14 East R. I; Burtett v. Colman, 14
East R. 163; S. C. 5 Dow. Parl. Cases, 165, 199.
2 Christian's note, 1 Black. Comm. 164.
3 4 Black. Comm. 286.
4 Rawle on the Constitution, ch. 4, p. 48; 1 Kent's Comm. (2d edit.) Lect.
11, p. 221, 235.
308 CONSTITUTION OF THE U. STATES. [BOOK III.
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.1 The judgment of the
1 The learned reader is referred to Burdett v. Abbott, 14 East R. 1;
Barderr v. Colaman, 14 East R. 163; 8. C. 5 Dow. Parl. R. 165, 199; and
Anderson v. Dunn, 6 Wheat. R. 204. The question is also much discussed in
JefFerson's Manual, § 3, and 1 Tuck. Black. Comm. App. note, p. 200 to 205.
See also 1 Black. Comm. 164, 165. Mr. Jefferson, in his Manual, (§ 3,) in
commenting on the case of William Duane for a political libel, has summed
up the reasoning on each side with a manifest leaning against the power.
It presents the strength of the argument on that side, and, on that
account, deserves to be cited at large.
"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, reader 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
CH. VII.] PRIVILEGES OF CONGRESS. 309
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.1
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, or 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 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
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, for
example, 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, 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 libitun to aid him, in
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 member; 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, makes 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 willbe perilous
The reasoning of Lord Chief Justice De Grey in Rex v. Brass Crosby, (3
Wilson's R. 188,) and of Lord Ellenborough in Burdett v. Abbott, (14 East
R. 1,) is exceedingly cogent and striking against that favoured by Mr.
Jefferson. It deserves, and will requite an attentive perusal. See also
Burdett v. Abbott, 4 Taunt. B. 401; 4 Dow's Parl. Rap. 165.
1 It is necessary to premise, that the suit was brought for/else
imprisonment by a party, who had been arrested under a warrant of the
310 CONSTITUTION OF THE U. STATES. [BOOK III.
§ 845. This is not the only case, in which the house or
hag exerted the power to arrest, and punish fox a contempt committed within
the walls or the
speaker of the house of representatives, by the sergeant-at-arms, for an
alleged contempt of the house, (an attempt to bribe a member,) and tile
cause was decided upon a demurrer to the justification set up by tile
officer. After a preliminary remark upon the range of the argument by the
counsel, Mr. Justice Johnson, in delivering the opinion of the Court
proceeded as follows: "The pleadings have narrowed them down to the simple
inquiry, whether the house of representatives can take cognizance of
contempts committed against themselves, under any circumstances? The
duress complained of was sustained under a warrant issued to compel the
party's appearance, not for the actual infliction of punishment for an
offence committed. Yet it cannot be denied, that the power to institute a
prosecution must be dependent upon tile power to punish. If the house of
representatives possessed no authority to punish for contempt, the
initiating process issued in tile assertion of that authority must have
been illegal; there was a want of jurisdiction to justify it.
"It is certainly true, that there is no power given by the constitution to
either house to punish for contempts, except when committed by their own
members. Nor does the judicial or criminal power given to the United
States, in any part, expressly extend to the infliction of punishment for
contempt of either house, or any one co-ordinate branch of the government.
Shall we, therefore, decide, that no such power exists?
"It is true, that such a power, if it exists, must be derived from
implication, and the genius and spirit of our institutions are hostile to
the exercise of implied powers. Had the faculties of man been competent to
the framing of a system of government, which would have left nothing to
implication, it cannot be doubted, that the effort would have been made by
the framers of the constitution. But what is the fact? There is not in
the whole of that admirable instrument a grant of powers, which does not
draw after it others, not expressed, but vital to their exercise; not
substantive and independent, indeed, but auxiliary and subordinate.
"The idea is utopian, that government can exist without leaving the
exercise of discretion somewhere. Public security against the abuse of
such discretion must rest on responsibility, and stated appeals to public
approbation. Where all power is derived from the people, and public'
functionaries, at short intervals, deposite it at the feet of the people,
to be resumed again only at their will, individual fears may he alarmed by
the monsters of imagination, but individual liberty can be in little
CH. XII.] PRIVILEGES OF CONGRESS. 311
house. The power was exerted1 in the case of Robert Randall, in December,
1795, for an attempt to corrupt a member;2 in 1796, in the case of ---, a
"No one is so visionary, as to dispute the assertion, that the sole end
and aim of all our institutions is the safety and happiness of the citizen.
But the relation between the action and the end is not always so direct and
palpable, as to strike the eye of every observer. The science of
government is the most abstruse of all sciences; if, indeed, that can be
called a science, which has but few fixed principles, and practically
consists in little more, than the exercise of a sound discretion, applied
to the exigencies of the state, as they arise. It is the science of
"But if there is one maxim, which necessarily rides over all others, in
the practical application of government, it is, that the public
functionaries must be left at liberty to exercise the powers, which the
people have intrusted to them. The interests and dignity of those, who
created them, require the exertion of the powers indispensable to the
attainment of the ends of their creation. Nor is a casual conflict with
the rights of particular individuals any reason to be urged against the
exercise of such powers. The wretch beneath the gallows may repine at the
fate, which awaits him; and yet iris no less certain, that the laws, under
which he suffers, were made for his security. The unreasonable murmurs of
individuals against the restraints of society have a direct tendency to
produce that worst of all despotisms, which makes every individual the
tyrant over his neighbour's rights.
"That 'the safety of the people is the supreme law,' not only comports
with, but is indispensable to, the exercise of those powers in their public
functionaries, without which that safety cannot be guarded. On this
principle it is, that courts of justice are universally acknowledged to be
vested, by their very creation, with power to impose silence, respect, and
decorum, in their presence, and submission to their lawful mandates, and,
as a corollary to this proposition, to preserve themselves and their
officers from the approach of insults or pollution.
"It is true, that the courts of justice in the United States are vested,
by express statute provision, with power to fine and imprison for
contempts; but it does not follow, from this circumstance, that they would
not have exercised that power without the aid of the statute, or not, in
cases, if such should occur, to which such statute provision may not
extend. On the contrary, it is a legislative assertion of this right, as
incidental to a grant of judicial power, and can only be considered
1 By a vote of 78 yeas against 17 nays.
2 1 Tuck. Black. Comm. App. 200 to 205, note; Jefferson's Manual, §3.
312 CONSTITUTION OF THE U. STATES. [BOOK III.
lenge given to a member, which was held a breach of privilege;1 and in
May, 1832, in the case of Samuel Houston, for an assault upon a member for
either as an instance of abundant caution, or a legislative declaration,
that the power of punishing for contempts shall not extend beyond its known
and acknowledged limits of fine and imprisonment.
"But it is contended, that if this power in the house of representatives
is to be asserted on the plea of necessity, the ground is too broad, and
the result too indefinite; that the executive, and every co-ordinate, and
even subordinate, branch of the government, may resort to the same
justification, and the whole assume to themselves, in the exercise of this
power, the most tyrannical licentiousness.
"This is unquestionably an evil to be guarded against, and if the doctrine
may be pushed to that extent, it must be a bad doctrine, and is justly
"But what is the alternative? The argument obviously leads to the total
annihilation of the power of the house of representatives to guard itself
from contempts; and leaves it exposed to every indignity and interruption,
that rudeness, caprice, or even conspiracy, may meditate against it. This
result is fraught with too much absurdity not to bring into doubt the
soundness of any argument, from which it is derived. That a deliberate
assembly clothed with the majesty of the people, and charged with the care
of all, that is dear to them; composed of the most distinguished citizens,
selected and drawn together from every quarter of a great nation; whose
deliberations are required by public opinion to be conducted under the eye
of the public, and whose decisions must be clothed with all that sanctity,
which unlimited confidence in their wisdom and purity can inspire; that
such an assembly should not possess the power to suppress rudeness, or
repel insult, is a supposition too wild to be suggested. And accordingly
to avoid the pressure of these considerations, it has been argued, that the
right of the respective houses to exclude from their presence, and their
absolute control within their own walls, carry with them the right to
punish contempts committed in their presence; while the absolute
legislative power given to congress within this district, enables them to
provide by law against all other insults, against which there is any
necessity for providing.
"It is to be observed, that so far as the issue of this cause is
implicated, this argument yields all right of the plaintiff in error to a
decision in his favour; for, non constat, from the pleadings, but that this
warrant issued for an offence committed in the immediate presence of the
1 Jefferson's Manual, § 3.
CH. XII.] PRIVILEGES OF CONGRESS. 313
in his place, and afterwards printed, reflecting on the character of
Houston.1 In the former case, the house punished the offence by
imprisonment; in the
"Nor is it immaterial to notice, what difficulties the negation of this
right in the house of representatives draws after it, when it is
considered, that the concession of the power, if exercised within their
walls, relinquishes the great grounds of the argument, to wit: the want of
an express grant, and the unrestricted and undefined nature of the power
here set up. For why should the house be at liberty to exercise an
ungranted, an unlimited, and undefined power within their walls, any more,
than without them? If the analogy with individual right and power be
resorted to, it will reach no farther, than to exclusion; and it requires
no exuberance of imagination to exhibit the ridiculous consequences, which
might result from such a restriction, imposed upon the conduct of a
"Nor would their situation be materially relieved by resorting to their
legislative power within the district. That power may, indeed, be applied
to many purposes, and was intended by the constitution to extend to many
purposes indispensable to the security and dignity of the general
government; but there are purposes of a more grave and general character,
than the offences, which may be denominated contempts, and which, from
their very nature, admit of no precise definition. Judicial gravity will
not admit of the illustrations, which this remark would admit of. Its
correctness is easily tested by pursuing, in imagination, a legislative
attempt at defining the cases, to which the epithet contempt might be
"But although the offence be held undefinable, it is justly contended,
that the punishment need not be indefinite. Nor is it so.
"We are not now considering the extent, to which the punishing power of
congress, by a legislative act, may be carried. On that subject, the
bounds of their power are to be found in the provisions of the
"The present question is, what is the extent of the punishing power, which
the deliberative assemblies of the Union may assume, and exercise on the
principle of self-preservation?
"Analogy, and the nature of the case, furnish the answer the---'the least
possible power adequate to the end proposed;" which is the power of
imprisonment. It may, at first view, and from the history of the practice
of our legislative bodies, be thought to extend to other inflictions. But
every other will be found to be mere commutation for confinement; since
commitment alone is the alternative, where the individual proves
1 See the Speeches of Mr. Doddridge and Mr. Burges on this occasion.
314 CONSTITUTION OF THE U. STATES. [BOOK III.
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
contumacious. And even to the duration of imprisonment a period is imposed
by the nature of things; since the existence of the power, that imprisons,
is indispensable to its continuance; and although the legislative power
continues perpetual, the legislative body ceases to exist on the moment of
its adjournment or periodical dissolution. It follows, that imprisonment
must terminate with that adjournment.
"This view of the subject necessarily sets bounds to the exercise of a
caprice, which has sometimes disgraced deliberative assemblies, when under
the influence of strong passions or wicked leaders, but the instances of
which have long since remained on record only as historical facts, not as
precedents for imitation. In the present fixed and settled state of
English institutions, there is no more danger of their being revived,
probably, than in our own.
"But the American legislative bodies have never possessed, or pretended
to, the omnipotence, which constitutes the leading feature in the
legislative assembly of Great Britain, and which may have led occasionally
to the exercise of caprice, under rite specious appearance of merited
"If it be inquired, what security is there, that with an officer avowing
himself devoted to their will, the house of representatives will confine
its punishing power to the limits of imprisonment, and not push it to the
infliction of corporeal punishment, or even death, and exercise it in cases
affecting the liberty of speech and of the press? The reply is to be found
in the consideration, that the constitution was formed in and for an
advanced state of society, and rests at every point on received opinions
and fixed ideas. It is not a new creation, but a combination of existing
materials, whose properties and attributes were familiarly understood, and
had been determined by reiterated experiments. It is not, therefore,
reasoning upon things, as they are, to suppose, that any deliberative
assembly, constituted under it, would ever assert any other rights and
powers, than those, which had been established by long practice and
conceded by public opinion. Melancholy, also, would be that state of
distrust, which rests not a hope upon a moral influence. The most absolute
tyranny could not subsist, where men could not be trusted with power,
because they might abuse it, much less a government, which has no other
basis, than the sound morals, moderation, and good sense of those, who
compose it. Unreasonable jealousies not only blight the pleasures, but
dissolve the very texture of society.
"But it is argued, that the inference, if any, arising under the
constitution, is against the exercise of the powers here asserted by the
CH. III.] PRIVILEGES OF CONGRESS. 315
punished by imprisonment.1 Nor is there any thing peculiar in the claim
under the constitution of the United States. The same power has been
of representatives; that the express grant of power to punish their members
respectively, and to expel them, by the application of a familiar maxim,
raises an implication against the power to punish any other, than their own
"This argument proves too much; for its direct application would lead to
the annihilation of almost every power of congress. To enforce its laws
upon any subject, without the sanction of punishment, is obviously
impossible. Yet there is an express grant of power to punish in one class
of cases and one only; and all the punishing power exercised by congress in
any cases, except those, which relate to piracy and offences against the
laws of nations, is derived from implication. Nor did the idea ever occur
to any one, that the express grant in one class of cases repelled the
assumption of the punishing power in any other.
"The truth is, that the exercise of the powers given over their own
members was of such a delicate nature, that a constitutional provision
became necessary to assert, or communicate it. Constituted, as that body
is, of the delegates of confederated states, some such provision was
necessary to guard against their mutual jealousy, since every proceeding
against a representative would indirectly affect the honour or interests of
the state, which sent him.
"In reply to the suggestion, that, on this same foundation of necessity,
might be raised a superstructure of implied powers in the executive, and
every other department, and even ministerial officer of the government, it
would be sufficient to observe, that neither analogy nor precedent, would
support the assertion of such powers in any other, than a legislative or
judicial body. Even corruption any where else would not contaminate the
source of political life. In the retirement of the cabinet, it is not
expected, that the executive can be approached by indignity or insult; nor
can it ever be necessary to the executive, or any other department, to hold
a public deliberative assembly. These are not arguments; they are visions,
which mar the enjoyment of actual blessings, with the attack or feint of
the harpies of imagination.
"As to the minor points made in this case, it is only necessary to
observe, that there is nothing on the face of this record, from which it
can appear, on what evidence this warrant was issued. And we are not to
presume, that the house of representatives would have issued it without
duly establishing the fact charged on the individual. And, as to
1 Journ. of Senate, 27th March, 1800; Jefferson's Manual, § 3. See also
Burdett v. Abbott, 14 East, 1.
316 CONSTITUTION OF THE U. STATES. [BOOK III.
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.1
§ 846. The power to punish for contempts, thus asserted both
and America, is confined to punishment during the session of the
legislative body, and cannot be extended beyond it.2 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.3 Whether a fine may not be imposed, has been recently4 made
a question in a case of contempt
the distance, to which the process might reach, it is very clear, that
there exists no reason for confining its operation to the limits of the
District of Columbia. After passing those limits, we know no bounds, that
can be prescribed to its range, but those of the United States. And why
should it he restricted to other boundaries? Such are the limits of the
legislating powers of that body; and the inhabitant of Louisiana of Maine
may as probably charge them with bribery and corruption, or attempt, by
letter, to induce the commission of either, as the inhabitant 'of any other
section of the Union. If the inconvenience be urged, the reply is obvious:
there is no difficulty in observing that respectful deportment, which will
render all apprehension chimerical."
See also Rex v. Brass Crosby, 3 Wilson R. 188. -- In the convention a
proposition was made and referred to the select committee appointed to
draft the constitution giving authority to punish for contempts, and
enumerating them. The committee made no report on the subject. Journ. of
Convention, 2Oth Aug. 263, 264.
1 Bolton v. Martin, 1 Dall. R. 296. See also House of Delegates in 1784,
the case of John Warden, 1 Elliot's Debates, 69; Coffin v. Coffin, 4 Mass.
R. 1, 34, 35.
2 Dunn v. Anderson, 6 Wheat. R. 204, 230, 231.
3 Dunn v. Anderson, 6 Wheat. R. 204, 230, 231; 1 Kent's Comm. Lect. 11, p.
4 In 1831.
CH. XII.] PRIVILEGES OF CONGRESS. 317
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.1 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.2
§ 847. The sixth section of the first article contains an
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.3 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.
1 See learned article on this subject in the English Law Magazine for
July. 1831, p. 1, &c. Parliamentary Debates, 1831.
2 In Yates v. Lansing, (9 Johns. R. 417,) Mr. Justice Platt said, that
"the right of punishing for contempts by summary conviction is inherent in
all courts of justice and legislative assemblies, and is essential to their
protection and existence. It is a branch of the common law adopted and
sanctioned by our state constitution. The decision involved in this power
is in a great measure arbitrary and undefinable; and yet the experience of
ages has demonstrated, that it is perfectly compatible with civil liberty,
and auxiliary to the purest ends of justice."
3 Corn. Dig. Parliament, D. 17.
318 CONSTITUTION OF THE U. STATES. [BOOK III.
§ 848. The first clause is as follows: "The senators and
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.1 It is believed, that the practice in America
during its colonial state was, if not universally, at least generally, to
1 1 Black. Comm. 174, and Christian's note, 34; Id. Prynne on 4 Inst. 32;
Com. Dig. Parliament, D. 16.
CH. XII.] PRIVILEGES OF CONGRESS. 319
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;1 and to the senators by a
vote of seven states against three, one being divided.2 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
1 Journal of Convention, 67, 116, 117.
2 Id. 119.
320 CONSTITUTION OF THE U. STATES. [BOOK III.
the affirmative, and five in the negative, two being divided;1 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.2 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.3 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;4 and ultimately the present plan was agreed to
by a vote of nine states against two.5 Such a fluctuation of opinion
exhibits in a strong light the embarrassing considerations, which
surrounded the subject.6
§ 851. The principal reasons in favour of a compensation may
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.7 In the
1 Journ. of Convention, 142.
2 Id. 144.
3 Id. 150, 151.
4 Id. 219, §10.
5 Id. 251.
6 See Yates's Minutes, 4 Elliot's Deb. 92 to 99.
7 See 2 Elliot's Debates, 279, 280; Yates's Minutes, 4 Elliot's Deb. 92 to 99.
CH. XII.] PRIVILEGES OF CONGRESS. 321
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.1
§ 852. On the other hand, it might be, and it was, probably,
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
1 See Rawle on the constitution, ch. 18, p. 181.
322 CONSTITUTION OF THE U. STATES. [BOOK III.
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.1
§ 853. It does not become the commentator to say, whether
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
1 See Yates's Minutes, 4 Elliot's Debates, 92 to 99.
CH. XII.] PRIVILEGES OF CONGRESS. 323
station. It has been justly observed, that the principle of compensation to
those, who render services to the public, runs through the whole
§ 854. If it be proper to allow a compensation for services to
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.2
Serious evils were felt from this source under the confederation, by
which each state was to maintain its own delegates in congress;3 for it
was found, that the
1 Rawle on the Constitution, ch. 18, p. 179.
2 Elliot's Debates, 279.
3 Articles of Confederation, art. 5.
324 CONSTITUTION OF THE U. STATES. [BOOK III.
states too often were operated upon by local considerations, as
contradistinguished from general and national interests.1
§ 855. The only practical question, which seems to have been
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.2 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.3 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.4
1 2 Elliot's Debates, 279; 1 Elliot's Debates, 70, 71.
2 2 Elliot's Debates, 279, 280, 281, 282.
3 1 Elliot's Debates, 70, 71.
4 See Gov. Randolph's Letter; 3 Amer. Mus. 62, 70.
CH. XII.] PRIVILEGES OF CONGRESS. 325
§ 856. The next part of the clause regards the privilege of the
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.1 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.2
§ 857. This privilege from arrest, privileges them of course
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-
1 1 Black. Comm. 164, 165; Com. Dig. Parliament, D. 17; Jefferson's
Manual. §3, Privilege; Benyon v. Evelyn, Sir O. Bridg. R. 334.
2 1 Kent Comm Lect. 11, p. 221; Bolton v. Martin, 1 Dall. R. 296; Coffin
v. Coffin, 4 Mass R. 1.
326 CONSTITUTION OF THE U. STATES. [BOOK III.
parison.1 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.2
§ 858. The privilege of the peers of the British parliament to
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.3 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.4 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.5
§ 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.6 In the mem-
1 Jefferson's Manual, §3.
2 Id. §3.
3 Com. Dig. Parliament, D. 17; 1 Black. Comm. 165, 166.
4 1 Black. Comm. 165; Com. Dig. Parliament, D. 17.
5 Holiday v. Pitt, 2 Str. R. 985; S. C. Cas. Temp. Hard. 28; 1 Black.
Comm. 165; Christian's note, 21; Barnard v. Mordaunt, 1 Kenyon R. 125.
6 Com. Dig. Parliament, D. 17; 1 Black. Comm. 165; Jefferson's Manual, §3.
CH. XII.] PRIVILEGES OF CONGRESS. 327
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
§ 860. The effect of this privilege is, that the arrest of the
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;2 and the arrest may also be punished, as a contempt of the house.3
§ 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.4 The privilege from arrest takes place by force of the
election, and before the member has taken his seat, or is sworn.5
§ 862. The exception to the privilege is, that it shall not
extend to "treason, felony, or breach of the peace."
1 Jefferson's Manual, §3.
2 Id. §3; 2 Str. 990; 2 Wilson's R. 151; Cas. Temp. Hard. 28
3 1 Black. Comm. 164, 165, 166; Com. Dig. Parliament, D. 17; Jefferson's
4 Jefferson's Manual, §3; 2 Str. R. 986, 987.
5 Jefferson's Manual, §3; but see Com Dig. Parliament, D. 17.
328 CONSTITUTION OF THE U. STATES. [BOOK III.
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.1 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.2 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;3 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.4 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
debate, without which all other privileges would be comparatively
unimportant, or ineffectual.5 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
1 4 Inst. 25; 1 Black. Comm. 165; Com. Dig. Parliament, D. 17.
2 1 Black. Comm. 166.
3 Rex v. Wilkes, 2 Wilson's R. 151.
4 See 1 Black. Comm. 166, 167.
5 See 2 Wilson's Law Lect. 156.
CH. XII.] PRIVILEGES OF CONGRESS. 329
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.1 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.2 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.3 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.4 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
1 1 Black. Comm. 164, 165.
2 Jefferson's Manual, §3.
3 The King v. Creevy, 1 Maule & Selw. 273.
4 See the reasoning in Coffin v. Coffin, 4 Mass. R. 1.
330 CONSTITUTION OF THE U. STATES. [BOOK III.
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
§ 864. The next clause reads the disqualifications of members
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.2 It has
been deemed by one commentator an admirable provision against venality,
though not perhaps sufficiently guarded to prevent evasion.3 And it has
been elaborately vindicated by another with uncommon earnestness.4 The
reasons for excluding persons from offices, who have been concerned in
creating them, or increasing their emoluments,
1 Mr. Doddridge's Speech in the case of Houston, in May, 1832; Mr.
Burges's speech, Ibid.
2 Journ. of Convention, 214, 319, 320, 322, 333.
3 1 Tuck. Black. Comm. App. 198, 214, 215, 375.
4 Rawle on the Const. ch. 19, p. 184, &c.; 1 Wilson's Law Lect. 446 to 419.
CH. XII.] PRIVILEGES OF CONGRESS. 331
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.1
Perhaps there is quite as much wisdom in leaving the provision, where it
§ 865. It is not easy, by any constitutional or legislative
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
1 Rawle on the Constitution, ch. 19. See 1 Tuck. Black. Comm. App. 375.
332 CONSTITUTION OF THE U. STATES. [BOOK III.
these qualities in a higher form, than any other.1 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.2
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-
1 The Federalist, No. 55.
2 Elliot's Debates, 279.
CH. XII.] PRIVILEGES OF CONGRESS. 333
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
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.1
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-
1 See Rawle on the Constitution, ch. 19; The Federalist, No. 56.
334 CONSTITUTION OF THE U. STATES. [BOOK III.
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-
CH. XII.] PRIVILEGES OF CONGRESS. 335
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
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
§ 868. In the British parliament no restrictions of the former
and few of the latter, except such as have been created by statute.1 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,
1 See Black. Comm. 175, 176.
336 CONSTITUTION OF THE U. STATES [BOOK III.
notwithstanding their official character.1 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.2 Still, however, the reasoning from the British
practice has not been deemed satisfactory by the public; and the guard in-
1 1 Black. Comm. 175, 176, Christian's note, 39.
2 Rawle on the Constitution, ch. 19. p. 187.
CH. XII.] PRIVILEGES OF CONGRESS. 337
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.1 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.2 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.
1 Mr. Rawle's remarks in his Treatise on Constitutional Law, (ch. 19,) are
as full on this point, as can probably be found. See also The Federalist,
No. 55; 1 Tucker's Black. Comm. App. 198, 214, 215; 2 Elliot's Debates.
278, 279, 280, 281, 282; 1 Wilson's Law Lect. 446 to 449.
2 1 Wilson's Law Lect. 446 to 449.