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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 lia. ble to action or indictment in the ordinary courts of justice, as in other cases of unauthorised arrest. 4. The court before which the process is returna. ble is bound to act as in other cases of unautho. rised proceeding, and liable also, as in other similar cases, to have their proceedings stayed 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 di. rect; 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; as a subpena 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 [ When a representative is withdrawn from .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 sena. tor is withdrawn by summons, his state loses half its voice in debate and vote, as it does on his voluntary absence.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 other. wise. 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 repre. sentatives voted a challenge given to a member of their house to be a breach of the privileges of the house ; but satisfactory apologies and acknow. ledgements being made, no further proceeding was had. The editor of the Aurora having in his paper of February 19, 1800, inserted corne para graphs 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 1. ture, and every body of men, postproses the right of self-defence; that all public functionare are essentially invented with the powers of f-OTOMAT
vation ; 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 parlia. ment 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 impractica. ble; that if our tranquillity is to be perpetually disturbed by newspaper defamation, it will not be possible to exercise our functions with the requi. site coolness and deliberation; and that we must therefore have a power to punish these disturbers of our peace and proceedings. To this it was an. swered, 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 com.. pletely, 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 government by the same state laws adopted in each state, by a law of congress; that none of these bodies, therefore, derive those pow. ers from natural or necessary right, but from ex. press law; that congress have no such naturai or necessary power, nor any powers but such as are given them by the Constitution; that that has
given them, directly, exemption from personal ar. rest, 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 neces. sary 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 function, e. g. for the punishment of con. tempts, 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 unjustifi. able disturbances or defamations, and even their own serjeant, who may appoint deputies ad libi. tum 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 inviolabi. lity 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 oceasion, 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 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 pow. ers vested in them, and thereby hang up a rule for the inspection of all, which may direct the con. duct 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 serjeant. 1 Grey, 88, 95.
The privilege of a member is the privilege of