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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 the 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, e. g. for the punishment of contempts, of affrays or tumults 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 meantime, 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 libitum to aid him, 3 Grey, 59, 147, 255, is equal to the smallest 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 make its sentence both the law and the judgment on that fact; if the offence is to be kept undefined, and to be declared only ex re nata, and according to the passions of the moment, and there be no limitation either in the manner or measure of the punishment, the condition of the citizen will be perilous indeed. Which of these doctrines is to prevail, time will decide. Where there is no fixed law, the judgment on any particular case is the law of that single case only, and dies with it. When a new and even a
similar case arises, the judgment which is to make, and at the same time apply, the law, is open to question and consideration, as are all new laws. Perhaps Congress, in the mean time, in their care for the safety of the citizens, 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.
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 intent a member, except that he cannot vote until he is sworn.—Memor. 107, 108-Dewes, 642. col. 2. 643. col. 1.-Pet. miscel. Parl.119-Lex. Parl. c. 23-2 Hats. 22. 62.
Every man must, at his peril, take notice who are members of either House returned of record. -Lex. Parl. 23, 4—Inst. 24.
On complaint of a breach of privilege, the party may either be summoned, or sent for in custody of the sergeant.-1 Grey, 88. 95.
The privilege of a member is the privilege of the House. If the member waive it without leave, it is a ground for punishing him, but cannot in effect waive the privilege of the House. 3 Grey, 140. 222.
For any speech or debate in either House, they shall not be questioned in any other place. -Const. U. S. Art. I. Sec. 6. S. P. protest of Commons to James I. 1621. 2 Rapin. No. 54.
p. 211, 212. But this is restrained to things done in the House in a Parliamentary course, 1 Rush, 663.-For he is not to have privilege contra morem parliamentarium, to exceed the bounds and limits of his place and duty.Com. p.
If an offence be committed by a member in the House, of which the House has cognizance, it is an infringement of their right for any person or court to take notice of it, till the House has punished the offender, or referred him to a due course.-Lex. Parl. 63.
Privilege is in the power of the House, and is a restraint to the 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 offences of this kind have been severely punished, by calling the person to the bar to make submission, committing him to the Tower, expelling the House, &c.-Scob. 72-Lex. Parl. c. 22.
It is a breach of order, for the Speaker to refuse to put a question which is in order.-2 Hats. 175, 176-5 Grey, 133.
And even in cases of treason, felony, and breach of the peace, to which privilege does not extend as to substance; yet, in Parliament, a member is privileged as to the mode of proceeding. The case is first to be laid before the House, that it may judge of the fact, and of the grounds of the accusation, and how far forth the
manner of the trial may concern their privilege. Otherwise it would be in the power of other branches of the government, and even of every private man, under pretences of treason, &c. to take any man from his service in the House; and so as many, one after another, as would make the House what he pleaseth-Decision of the Commons on the King's declaring Sir John Hotham a traitor-4 Rushw. 586. So when a member stood indicted of felony, it was adjudged that he ought to remain of the House till conviction. For it may be any man's case, who is guiltless, to be accused and indicted of felony, or the like crime.—23 El. 1580—D'Ewes, 283. col. 1--Lex. Parl. 133.
When it is found necessary for the public service to put a member under arrest, or when, on any public inquiry, matter comes out which may lead to affect the person of a member, it is the practice immediately to acquaint the House, that they may know the reasons for such a proceeding, and take such steps as they think proper.-2 Hats. 259. Of which, see many examples.-2 Hats. 256, 257, 258. But the communication is subsequent to the arrest.—1 Blackst. 167.
It is highly expedient, says Hatsell, 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 that 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. 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 opinion of the King, on any bill or proceeding depending in either House of Parliament, with a view to influence the votes of the members.-2 Hats. 251, 6.