morum, to punish the thousand peccadillos of its members. There are times, when this duty would be no sinecure.

(13) Its capacities as the Grand Inquest of the State.

The House of Delegates is the Grand Inquest of the State; and as such, may enquire into all complaints, grievances, and offences whatsoever; may call and examine witnesses in relation thereto; and may commit any person for any crime, to the public gaol, to remain there until discharged in due course of law. (8) (4) Its control over the revenue of the State.

The House of Delegates has the exclusive power of appointing the Treasurer of the State; but where vacancies occur in the recess, they may be filled, until the meeting of the Assembly, by the appointment of the Governor and Council. It may also examine and pass all accounts of the State, relative to the col lection and expenditure of State revenue; or appoint auditors to state and adjust them; and in the investigation of these, as well as of all other proper subjects for its inquiry, it may call for all public or official papers and records, and send for all persons whose presence it may deem necessary. (9)

(8) Constitution, art. 10th.

(9) Constitution, art. 10th. See 2d vol. chapter, "of the Treasury of the State," where the causes, nature, and past exercise of these powers are fully examined.

CHAPTER XII.

THE PRIVILEGES AND DISABILITIES OF MEMBERS OF ASSEMBLY.

THE privileges and disabilities of the members of Assembly are such as are necessarily incident to their office, or are expressly connected with it for the purpose of securing its purity and efficiency. They are not mere personal privileges, which the member may claim or waive, or disabilities of which he may relieve himself, at his pleasure. His official privileges are not his, but those of the people whom he represents; and his waiver or surrender of them cannot deprive his constituents of the right to enforce their observance. His disabilities modify and restrict his agency, and he can no more relieve himself from their operation, than can he who accepts a qualified agency convert it into one unqualified. These general considerations at once indicate the nature and objects of these privileges and disabilities, and determine their extent. They shew us why it is, that the privi leges of the member are protected, and infractions of them punished by the house to which he belongs. The house is the organ of the people, and as such protects the privileges of the people's agent. In the preceding chapter, we have seen the power of the houses to protect themselves and their members. We are now to consider the privileges and disabilities of the members, solely with reference to themselves; and this will of course exclude those, which, although they relate to the members, are yet only the privilege of the houses.

It is to be regretted that the same precision, with which the powers of the houses are defined, was not observed as to the privileges of the members. The latter have been suffered to rest upon implication. The doctrine of Judge Blackstone, "that the dignity and independence of the legislature can only be pre

served by keeping its privileges indefinite," is not sustained even by the annotators on his work: and if we examine the reasons upon which he has founded it, we discover that, whatever their force in England, they do not apply to our government. The privileges of the English parliament are given, not merely to protect its members in the discharge of their public duties, from unwarrantable interruptions by their fellow subjects, but also to preserve its independence against the aggressions of the crown: and hence it is feared, that if they were once minutely defined, it would be easy for the crown to devise some mode of violating them, not falling within the defined cases. The expansive nature of parliamentary privilege has therefore been considered as its only effectual security: and the manner in which the English Parliament has obtained its privileges, gives great force to the doctrine, as applied to that body. They have all been extorted, and were originally regarded as encroachments. To use the language of Mr. Jefferson, "they have been advancing for centuries with a firm and never yielding pace. Claims have been brought forward from time to time, and repeated until some example of their admission enabled them to build law on that admission." There may, therefore, be some show of reason in this doctrine, as applied to the English parliament; but there is none, in reference to our constitution. The Executive here is the mere dependant of the Legislature; and has neither the will nor the power to encroach upon its liberties. Hence, as all rules of action in republican governments, they should be expressly granted and well defined.

The common privileges of the members of Assembly consist in (1) Exemption from legal process in certain cases-(2) Freedom of debate (3) Exemption from military duty, and from service as jurors.

(1) Their exemption from legal process.

This exemption is not expressly granted by any part of our Constitution or laws. The 12th section of the Constitution empowers each house of Assembly to punish by imprisonment, any person guilty of a breach of privilege, by arresting on civil process any of its members, during its session, or whilst they are on their way to or from it. This power, of itself, operates as a grant of privilege to that extent but does it also operate as a restric

tion of it to the cases in which the house may punish? It is certain, that if our Constitution had been silent as to this privilege, it would yet have existed as the necessary incident of the office. It results from it because it is necessary to its exercise; and if it were denied, a state of things might be imagined, in which, for the promotion of private interests, or the gratification of individual feeling, the business of legislation would be wholly suspended. Although it would require an extraordinary concurrence of circumstances to produce such a result, yet even the possibility of it must be guarded against, when fraught with such alarming consequences. The arrest and detention of a single member, is the loss of his vote and influence on behalf of those whom he represents. Hence the privilege has arisen, and it has been held to extend, by implication, not merely to ordinary legislatures, but also to extraordinary legislative assemblies, such as conventions to reform or adopt constitutions. (1)

Yet, although it would arise by necessary implication, it is equally true, that where there is an express grant, the implication ceases, and the grant operates as a denial of all not granted and it therefore only remains to inquire, whether the grant of the power to punish in these defined cases produces the same effect, as would an express grant of privilege limited to them. If so, the only exemption of the member from legal process, relates to arrests eundo, redeundo, et morando. It is true that in general the privilege of the member is the privilege of the House; but the 12th section relates only to the power to punish. The privilege, or the infractions of it, may not be of such a nature as to require the interposition of the House. The member may be summoned as a witness, or as a party to a suit and although the service of the summons may violate his privilege, yet, as it is not compulsory until fol lowed up by attachment, it is unnecessary for the House to interfere until the attachment comes. He may be arrested on civil process before the meeting of the Assembly, and detained. in custody after its session commences. In such cases as the latter, the original arrest is legal, and the House has no power to

(1) 1st. Dallas's Rep. 297.

punish: yet, after the session commences, the consequences and mischiefs are the same as if the member were arrested during the session. This is a case without the strict letter of the Constitution; and if the privilege is thus limited, the member might remain in custody. These possible cases lead us to the inference, that the power of the Houses to punish exists only to reach the extreme and urgent cases: and that it does not necessarily limit this privilege, but leaves us at liberty to give to it the latitude, which reason and precedent indicate as essential to the proper exercise of the office.

The privilege does not, and never should extend, to exemption from criminal process of any kind. In such cases, public interests are in conflict; and the superior interest of society, is that which is maintained by the punishment of the member for offences against its security, peace, or good order. He has, therefore, no privilege and the only privilege of the House is its right to be informed of his detention, and of the causes of it. (2)

:

In civil cases, there is some contrariety of opinion as to its extent. As it existed in England about the commencement of the eighteenth century, it exempted members of Parliament not only from arrest, but also from the service of any legal process in civil cases, during the time of privilege. It has been so restricted by various statutes, that it now merely exempts from arrest on civil process and leaves them subject to all process not requiring an arrest. But the abuses which occasioned this restriction in England, could never flow from the privilege in this State. The original exemption of members of Parliament, almost operated as a perpetual bar to all civil process against them. The duration of the Parliament then depended upon the pleasure of the king: and the privilege subsisted for such a time after its prorogation or adjournment, and before its re-assemblage, as generally to cover the whole interval between its sessions. But here it operates only during the session of Assembly, and the time necessary in going and returning from it, which never exceeds three months. This temporary suspension of private right, cannot be put in competition with the public inconvenience which might arise from subjecting the member to civil process, even where it did not occasion an

(2) 1st Black. 169; Jefferson's Manual, 25.