[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 105th Congress] [105th Congress] [House Document 104-272] [Jeffersons Manual of ParliamentaryPractice] [Pages 120-139] [From the U.S. Government Printing Office, www.gpo.gov] sec. iii.--privilege. [[Page 121]] one instance, indeed, it has been relaxed by the 10 G. 3, c. 50, which permits judiciary proceedings to go on against them. That these privileges must be continually progressive, seems to result from their rejecting all definition of them; the doctrine being, that ``their dignity and independence are preserved by keeping their privileges indefinite; and that `the maxims upon which they proceed, together with the method of proceeding, rest entirely in their own breast, and are not defined and ascertained by any particular stated laws.' '' 1 Blackst., 163, 164.
Sec. 287. Privileges of members of Parliament. | The privileges of members of Parliament, from small and obscure beginnings, have been advancing for centuries with a firm and never yielding pace. Claims seem to have been brought forward from time to time, and repeated, till some example of their admission enabled them to build law on that example. We can only, therefore, state the points of progression at which they now are. It is now acknowledged, 1st. That they are at all times exempted from question elsewhere, for anything said in their own House; that during the time of privilege, 2d. Neither a member himself, his, order H. of C. 1663, July 16, wife, nor his servants (familiares sui), for any matter of their own, may be, Elsynge, 217; 1 Hats., 21; 1 Grey's Deb., 133, arrested on mesne process, in any civil suit: 3d. Nor be detained under execution, though levied before time of privilege: 4th. Nor impleaded, cited, or subpoenaed in any court: 5th. Nor summoned as a witness or juror: 6th. Nor may their lands or goods be distrained: 7th. Nor their persons assaulted, or characters traduced. And the period of time covered by privilege, before and after the session, with the practice of short prorogations under the connivance of the Crown, amounts in fact to a perpetual protection against the course of justice. In |
Sec. 288. Privilege of Members of Congress under the Constitution. | It was probably from this view of the encroaching character of privilege that the framers of our Constitution, in their care to provide that the laws shall bind equally on all, and especially that those who make them shall not exempt themselves from their operation, have only privileged ``Senators and Representatives'' themselves from the single act of ``arrest in all cases except treason, felony, and breach of the peace, during their attendance at the session of their respective Houses, and in going to and returning from the same, and from being questioned in any other place for any speech or debate in either House.'' Const. U.S. Art I, Sec. 6. Under the general authority ``to make all laws necessary and proper for carrying into execution the powers given them,'' Const. U.S., Art. II, Sec. 8, they may provide by law the details which may be necessary for giving full effect to the enjoyment of this privilege. No such law being as yet made, it |
Sec. 289. Privilege as to going and returning. | The time necessary for going to, and returning from, Congress, not being defined, it will, of course, be judged of in every particular case by those who will have to decide the case. While privilege was understood in England to extend, as it does here, only to exemption from arrest, eundo, morando, et redeundo, the House of Commons themselves decided that ``a convenient time was to be understood.'' (1580,) 1 Hats., 99, 100. Nor is the law so strict in point of time as to require the party to set out immediately on his return, but allows him time to settle his private affairs, and to prepare for his journey; and does not even scan his |
Sec. 290. Privilege of Members as related to rights of courts to summon witnesses and jurors. | This privilege from arrest, privileges, of course, against all process the disobedience to which is punishable by an attachment of the person; as a subpoena ad respondendum, or testificandum, or a summons on a jury; and with reason, because a Member has superior duties to perform in another place. When a Representative is withdrawn from his seat by summons, the 40,000 people whom he represents lose their voice in debate and vote, as they do on his voluntary absence; when a Senator is withdrawn by summons, his State loses half its voice in debate and vote, as it does on his voluntary absence. The enormous disparity of evil admits no comparison. |
Sec. 291a. Attitude of the House as to demands of the courts. | The House has decided that the summons of a court to Members to attend and testify constituted a breach of privilege, and directed them to disregard the mandate (III, 2661); but in other cases wherein Members informed the House that they had been summoned before the District Court of the United States for the District of Columbia or other courts, the House authorized them to respond (III, 2662; Feb. 23, 1948, p. 1557; Mar. 5, 1948, p. 2224; Apr. 8, 1948, p. 4264; Apr. 12, 1948, p. 4347; Apr. 14, 1948, p. 4461; Apr. 15, 1948, p. 4529; Apr. 28, 1948, p. 5009; May 6, 1948, pp. 5433, 5451; Feb. 2, 1950, p. 1399; Apr. 4, 1951, p. 3320; Apr. 9, 1951, p. 3525; Apr. 12, 1951, pp. 3751, 3752; Apr. 13, 1951, p. 3915; June 4, 1951, p. 6084; June 22, 1951, p. 7001; Sept. 18, 1951, p. 11571; Sept. 27, 1951, p. 12292; Mar. 5, 1953, p. 1658; Mar. 18, 1953, p. 2085; Mar. 11, 1954, p. 3102; July 19, 1954, p. 10904; Apr. 9, 1956, p. 5970; Apr. 10, 1956, p. 5991). The House, however, has declined to make a general rule permitting Members to waive their privilege, preferring that the Member in each case should apply for permission (III, 2660). Also in maintenance of its privilege the House has refused to permit the Clerk or other officers |
Sec. 291b. Judicial appearances on behalf of House. | While the statutes provide that the Department of Justice may represent any officer of the House or Senate in the event of judicial proceedings against such officer in relation to the performance of official duties (see 2 U.S.C. 118), and that the Department of Justice shall generally represent the interests of the United States in Court (28 U.S.C. 517), the House has on occasion authorized special appearances on its own behalf by special counsel when the prerogatives or powers of the House have been questioned in the courts. The House has adopted privileged resolu- |
Sec. 292. Attitude of one House as to demands of the other for attendance or papers. | When either House desires the attendance of a Member of the other to give evidence it is the practice to ask the House of which he is a Member that the Member have leave to attend, and the use of a subpoena is of doubtful propriety (III, 1794). But in one case, at least, the Senate did not consider that its privilege forbade the House to summon one of its officers as a witness (III, 1798). But when the Secretary of the Senate was subpoenaed to appear before a committee of the House with certain papers from the files of the Senate, the Senate discussed the question of privilege before empowering him to attend (III, 2665). For discussion of the means by which one House may prefer a complaint against a Member or officer of the other, see Sec. 373, infra. |
Sec. 293. Power of the House to punish for contempts. | So far there will probably be no difference of opinion as to the privileges of the two Houses of Congress; but in the following cases it is otherwise. In December, 1795, the House of Representatives committed two persons of the name of Randall and Whitney for attempting to corrupt the integrity of certain Members, which they considered as a contempt and breach of the privileges of the House; and the facts being proved, Whitney was detained in confinement a fortnight and Randall three weeks, and was reprimanded by the Speaker. In March, 1796, the House of Representatives voted a challenge given to a Member of their House to be a breach of the privileges of the House; but satisfactory apologies and acknowledgments being made, no further proceeding was had. * * * |
Sec. 294. Decision of the court in Anderson's case. | The cases of Randall and Whitney (II, 1599-1603) were followed in 1818 by the case of John Anderson, a citizen, who for attempted bribery of a Member was arrested, tried, and censured by the House (II, 1606). Anderson appealed to the courts and this procedure finally resulted in a discussion by the Supreme Court of the United States of the right of the House to punish for contempts, and a decision that the House by implication has the power to punish, since ``public functionaries must be left at liberty to exercise the powers which the people have intrusted to them,'' and ``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'' (II, 1607; Anderson v. Dunn, 6 Wheaton 204). In 1828 an assault on the President's secretary in the Capitol gave rise to a question of privilege which involved a discussion of the inherent power of the House to punish for contempt (II, 1615). Again in 1832, when the House censured Samuel Houston, a citizen, for assault on a Member for words spoken in debate (II, 1616), there was a discussion by the House of the doctrine of inherent and implied power as opposed to the other doctrine that the House might exercise no authority not expressly conferred on it by the Constitution or the laws of the land (II, 1619). In 1865 the House arrested and censured a citizen for attempted intimidation and assault on a member (II, 1625); in 1866, a citizen who had assaulted the clerk of a committee of the House in the Capitol was arrested by order of the House, but as there was not time to punish in the few remaining days of the session, the Sergeant-at-Arms was directed to turn the prisoner over to the civil authorities of the District of Columbia (II, 1629); and in 1870 one Woods, who had assaulted a Member on his way to the House, was arrested on warrant of the Speaker, arraigned at the bar, and imprisoned for a term extending beyond the adjournment of the session, although not beyond the term of the existing House (II, 1626-1628). |
Sec. 295. Views of the court in Kilbourn's case. | In 1876 the arrest and imprisonment by the House of Hallet Kilbourn, a contumacious witness, resulted in a decision by the Supreme Court of the United States that the House had no general power to punish for contempt, as in a case wherein it was proposing to coerce a witness in an inquiry not within the constitutional authority of the House. The Court also discussed the doctrine of inherent power to punish, saying in conclusion, ``We are of opinion that the right of the Houses of Representatives to punish the citizen for a contempt of its authority or a breach of its privileges can derive no support from the precedents and practices of the two Houses of the English Parliament, nor from the adjudged cases in which the English courts have upheld these practices. Nor, taking what has fallen from the English judges, and especially the later cases on which we have just commented, is much aid given to the doctrine, that this power |
Sec. 296. Decision of the court in Marshall v. Gordon. | In the case of Marshall v. Gordon, 243 U.S. 521, the Court stated: Appellant while United States Attorney for the Southern District of New York conducted a grand jury investigation which led to the indictment of a Member of the House of Representatives. Acting on charges of misfeasance and nonfeasance made by the Member against appellant in part before the indictment and renewed with additions afterward, the House by resolution directed its Judiciary Committee to make inquiry and report concerning appellant's liability to impeachment. Such inquiry being in progress through a subcommittee, appellant addressed to the subcommittee's chairman, and gave to the press, a letter, charging the subcommittee with an endeavor to probe into and frustrate the action of the grand jury, and couched in terms calculated to arouse the indignation of the members of that committee and those of the House generally. Thereafter, appellant was arrested in New York by the Sergeant at Arms pursuant to a resolution of the House whereby the letter was characterized as defamatory and insulting and as tending to bring that body into public contempt and ridicule, and whereby appellant in writing and publishing such letter was adjudged to be in contempt of the House in violating its privileges, honor, and dignity. He applied for habeas corpus. |
Sec. 297. Jefferson's statement of arguments for inherent power to punish for contempt. | * * * The editor of the Aurora having, in his paper of February 19, 1800, inserted some paragraphs defamatory of the Senate, and failed in his appearance, he was ordered to be committed. In debating the legality of this order, it was insisted, in support of it, that every man, by |
Sec. 298. Statement of arguments against the inherent power to punish for contempts. | * * * 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 |
Sec. 299. Jefferson's suggestion that a law might define procedure in cases of contempt. | * * * Which of these doctrines is to prevail, time will decide. Where there is no fixed law, the judgment on any particular case is the law of that single case only, and dies with it. When a new and even a similar case arises, the judgment which is to make and at the same time apply to the law, is open to question and consideration, as are all new laws. Perhaps Congress in the mean time, in their care for the safety of the citizen, as well as that for their own protection, may declare by law what is necessary and proper to enable them to carry into execution the powers vested in them, and thereby hang up a rule for the inspection of all, which may direct the conduct of the citizen, and at the same time test the judgments they shall themselves pronounce in their own case. |
Sec. 300. Status of Memberelect as to privilege, oath, committee service, etc. | Privilege from arrest takes place by force of the election; and before a return be made a Member elected may be named of a committee, and is to every extent a Member except that he cannot |
Sec. 301. Relations of Members and others to privilege. | Every man must, at his peril, take notice who are members of either House returned of record. Lex. Parl., 23; 4 Inst., 24. |
Sec. 302. Parliamentary law as to questioning a Member in another place for speech or debate. | For any speech or debate in either House, they shall not be questioned in any other place. Const. U.S., I, 6; S. P. protest of the Commons to James I, 1621; 2 Rapin, No. 54, pp. 211, 212. But this is restrained to things done in the House in a parliamentary course. 1 Rush, 663. For he is not to have privilege contra morem parliamentarium, to exceed the bounds and limits of his place and duty. Com. p. |
Sec. 303. Relation of the courts to parliamentary privilege. | If an offense be committed by a member in the House, of which the House has cognizance, it is an infringement of their right for any person or court to take notice of it till the House has punished the offender or referred him to a due course. Lex. Parl., 63. |
Sec. 304. Breach of privilege to refuse to put a question which is in order. | Privilege is in the power of the House, and is a restraint to the proceeding of inferior courts, but not of the House itself. 2 Nalson, 450; 2 Grey, 399. For whatever is spoken in the House is subject to the censure of the House; and offenses of this kind have been severely punished by calling the person to the bar to make submission, committing him to the tower, expelling the House, &c. Scob., 72; L. Parl., c. 22. It is a breach of order for the Speaker to refuse to put a question which is in order. 1 Hats., 175-6; 5 Grey, 133. |
Sec. 305. Parliamentary law of privilege as related to treason, felony, etc. | And even in cases of treason, felony, and breach of the peace, to which privilege does not extend as to substance, yet in Parliament a member is privileged as to the mode of proceeding. The case is first to be laid before the House, that it may judge of the fact and of the ground of the accusation, and how far forth the manner of the trial may concern their privilege; otherwise it would be in the power of other branches of the government, and even of every private man, |
Sec. 306. Practice as to Members indicted or convicted. | The House has not usually taken action in the infrequent instances where Members have been indicted for felony, and in one or two instances Members under indictment or pending appeal on conviction have been appointed to committees (IV, 4479). The House has, however, adopted a resolution expressing the sense of the House that Members convicted of certain felonies should refrain from participation in committee business and from voting in the House until the presumption of innocence is reinstated or until re-elected to the House (see H. Res. 128, Nov. 14, 1973, p. 36944), and that principle has been incorporated in the Code of Official Conduct (clause 10 of rule XLIII). A Senator after indictment was omitted from committees at his own request (IV, 4479), and a Member who had been convicted in one case did not appear in the House during the Congress (IV, 4484, footnote). A Senator in one case withdrew from the Senate pending his trial (II, 1278), and on conviction resigned (II, 1282). In this case the Senate, after the conviction, took steps looking to action although an application for rehearing on appeal was pending (II, 1282). |
Sec. 307. Parliamentary law as to arrest of a Member. | When it is found necessary for the public service to put a Member under arrest, or when, on any public inquiry, matter comes out which may lead |
Sec. 308. A breach of privilege for one House to encroach or interfere as to the other. | It is highly expedient, says Hatsel, for the due preservation of the privileges of the separate branches of the legislature, that neither should encroach on the other, or interfere in any matter depending before them, so as to preclude, or even influence, that freedom of debate which is essential to a free council. They are, therefore, not to take notice of any bills or other matters depending, or of votes that have been given, or of speeches which have been held, by the members of either of the other branches of the legislature, until the same have been communicated to them in the usual parliamentary manner. 2 Hats., 252; 4 Inst., 15; Seld. Jud., 53. |
Sec. 309. Relations of the Sovereign to the Parliament and its Members. | Thus the King's taking notice of the bill for suppressing soldiers, depending before the House; his proposing a provisional clause for a bill before it was presented to him by the two Houses; his expressing displeasure against some persons for matters moved in Parliament during the debate and preparation of a bill, were breaches of privilege, 2 Nalson, 743; and in 1783, December 17, it was declared a breach of fundamental privileges, &c., to report any opinion or pretended |