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IMPORTANCE OF RULES.
SEC. 1. THE IMPORTANce of adheRING TO RUles.
Mr. Onslow, the ablest among the Speakers of the House of Commons, used to say, "it was a maxim he "had often heard when he was a young man, from "old and experienced members, that nothing tended "more to throw power into the hands of administra❝tion, and those who acted with the majority of the "House of Commons, than a neglect of, or departure "from, the rules of proceeding: that these forms, as ❝instituted by our ancestors, operated as a check and "control on the actions of the majority, and that they "were, in many instances, a shelter and protection to "the minority, against the attempts of power." So far the maxim is certainly true, and is founded in good sense, that as it is always in the power of the majority, by their numbers, to stop any improper measures proposed on the part of their opponents, the only weapons by which the minority can defend themselves against similar attempts from those in power, are the forms and rules of proceeding, which have been adopted as they were found necessary, from time to time, and are become the law of the House; by a strict adherence to which, the weaker party can only be protected from those irregularities and abuses, which these forms were intended to check, and which the wantonness of power is but too often apt to suggest to large and successful majorities. 2 Hats. 171, 172.
And whether these forms be in all cases the most rational or not, is really not of so great importance.
It is much more material that there should be a rule to go by, than what that rule is; that there may be a uniformity of proceeding in business, not subject to the caprice of the Speaker, or captiousness of the members. It is very material that order, decency, and regularity be preserved in a dignified public body. 2 Hats. 149.
SEC. II. LEGISLATURE.
All Legislative power herein granted, shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives, Constitution of the United States, Art. 1. Sect. 1.
The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. Constitution of the United States, Art. 1, Sect. 6.
For the powers of Congress, see the following Articles and Sections of the Constitution of the United States. I. 4. 7. 8. 9. II. 1. 2. III. 3. IV. 1, 3, 5. and all the amendments.
SEC. III. PRIVILEGE.
The privileges of the 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 point of progression at which they now are. It is now acknowledged, 1st. That they are at all times exempted from question elsewhere for any thing said in their own house; that during the time of privilege, 2d. Neither a member himself, his wife, or his servants, [familiares sui] for any matter of their own, may be arrested on mesne process, in any civil suit:
* Order of the House of Commons, 1663, July 16. † Elsynge 217, 1 Hats. 21. 1 Grey's Deb. 133.
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 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 in"dependence are preserved by keeping their privi"leges indefinite; and that the maxims upon which "they proceed, together with the method of proceed"ing, rest entirely in their own breast, and are not "defined, and ascertained by any particular stated "laws.' ""1 Blackst. 163, 164,
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 a 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. 1. Sec. 6. Under the general authority "to make all laws necessary and proper for carrying into execution the powers given them," Const. Ü. S. Art. 2. 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 seems to stand at present on the following ground. 1. The act
of arrest is void, ab initio.* 2. The member arrested may be discharged on motion. 1 Bl. 166. 2 Stra. 990. or by habeas corpus under the Federal or State authority, as the case may be; or by a writ of privilege out of the Chancery, 2 Stra. 989, in those States which have adopted that part of the laws of England. Orders of the House of Commons, 1550, February 20. 3. The arrest being unlawful, is a trespass for which the officer and others concerned are liable to action or indictment in the ordinary courts of justice, as in other cases of unauthorized arrest. 4. The court before which the process is returnable is bound to act as in other cases of unauthorized proceeding, and liable also, as in other similar cases, to have their proceedings staid or corrected by the superior courts.
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 road very nicely, nor forfeit his protection for a little deviation from that which is most direct; some necessity perhaps constraining him to it. 2 Stra. 986, 987.
This privilege from arrest, privileges of course against all process, the disobedience to which is punishable by an attachment of the person; so 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:
* 2 Stra. 989.
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.
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 Dec. 1795, the H. of R. 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 H. of R. 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. 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 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, render 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