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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 authorises them "to make all laws necessary and proper for carrying into execution the powers vested by the constitution in them," they may provide by law for an undisturbed exercise of their functions, e. g. for the punishment of contempts, of affrays or tumult in their presence, &c. but, till the law be made, it does not exist; and does not exist, from their own neglect; that, in the mean time, however, that they are not unprotected, the ordinary magistrates and courts of law being open and competent to punish all unjustifiable disturbances or defamations, and even their own sergeant, who may appoint deputies ad libitum to aid him, 3 Grey, 59, 147, 255, is equal to small disturbances; that in requiring a previous law, the constitution had regard to the inviolability of the citizen, as well as of the 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 accord

ing 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 tne 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.]

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. D'Ewes, 642, col. 2. 643, col. 1. Pet. Miscel. Parl. 119. Lex. Parl. c. 25. 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. I. 6. S. P. protest of the 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 parliamentariam, 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 hot 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. L. 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, 6. 5 Grey, 133.

And even in cases of treason, felony and breach of the peace, to which privilege does not extend as to substance, yet in parliament a member is

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ing 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 tne 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 pow ers 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 memin elected may be named of a committee, and every intent a member, exc vote until he is sworn. M

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