[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7.  The Members]
[D. Immunities of Members and Aides]
[Â§ 18. From Arrest]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 815-826]
 
                               CHAPTER 7
 
                              The Members
 
                   D. IMMUNITIES OF MEMBERS AND AIDES
 
Sec. 18. From Arrest

    Article I, section 6, clause 1 of the Constitution states of 
Senators and Representatives that ``they shall in all cases, except 
treason, felony, and breach of the peace, be privileged from arrest 
during their attendance at the session of their respective Houses, and 
in going to and returning from the same.'' (6) Unlike the 
Speech and Debate Clause, which was not judicially defined until the 
20th century,(7) issues relating to the immunity from arrest 
were litigated soon after the adoption of the 
Constitution.(8)
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 6. See, in general, House Rules and Manual Sec. 90 (1973) (comment to 
        the constitutional provision). For Jefferson's comments, see 
        House Rules and Manual Sec. Sec. 287-292, 300-309 (1973). See 
        also, for early commentary, Story, Commentaries on the 
        Constitution of the United States, Sec. Sec. 856-862, Da Capo 
        Press (N. Y. repute. 1970). Story attributed to Congress the 
        power of contempt to punish those who unlawfully arrest 
        Members, id. at Sec. 860, but the House has no such general 
        contempt power. See Kilbourn v Thompson, 103 U.S. 189 (1881) 
        and Marshall v Gordon, 243 U.S. 521 (1917).
 7. See Sec.  16, supra.
 8. The first cases on the constitutional privilege were Coxe v 
        M'Clenachen, 3 Dall. 478 (Sup. Ct. Pa. 1798) and U.S. v Cooper, 
        4 Dall. 341 (U.S. Cir. Ct. D. Pa. 1800).
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    The immunity from arrest has been extensively discussed on the 
floor of the House, since subpenas, summonses, and arrests of Members 
while the House is in session are presented to the House as questions 
of privilege. The House has decided that a summons or subpena to a 
Member to appear in court, or before a grand jury, while the House is 
in session invades the rights and privileges of the 
House.(9) The permission of the House is required for a 
Member to attend upon a court during sessions of Congress; the House 
usually by resolution permits

[[Page 816]]

court appearance at such time as the Congress is not actually in 
session.(10) On most occasions, Representatives and Senators 
seek accommodation between their duty to appear in court and their duty 
to attend upon the sessions of Congress,(11) since the 
purpose of the clause is not for the benefit or convenience of 
individual legislators but is to prevent interference with the 
legislative process by the courts and by grand juries.(12)
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 9. See Sec. 18.1, infra.
            Subpenas, summonses, and arrests are presented as questions 
        of House privilege and not personal privilege, since they 
        affect the rights of the House collectively, its safety, 
        dignity, and integrity of proceedings. See Rule IX, House Rules 
        and Manual Sec. 661 (1973). And resolutions proposing action by 
        the House are called up under a question of the privileges of 
        the House.
            The personal privilege of the Member may also be involved, 
        however, since that privilege rests primarily on the 
        constitutional immunities. See House Rules and Manual Sec. 663 
        (1973). For an instance where a grand jury summons was raised 
        as a question of personal privilege, see 6 Cannon's Precedents 
        Sec.  586.
10. See Ch. 11, infra.
11. See Sec. Sec. 18.1, 18.3, 18.5, infra.
12. See U.S. v Brewster, 408 U.S. 501, 507 (1972); James v Powell, 274 
        N.Y.S. 2d 192, 26 App. Div. 2d 295 (1966); U.S. v Cooper, 4 
        Dall. 341 (U.S. Cir. Ct. D. Pa. 1800).
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    The Constitutional Convention adopted a privilege from arrest with 
substantially the same scope as the English parliamentary 
privilege.(13) Under the common law, the privilege did not 
apply to any indictable offenses.(14) The words ``treason, 
felony, and breach of the peace'' have been construed by the Supreme 
Court to remove from the operation of the privilege all criminal 
offenses.(15) Criminal offenses are those in which fine and/
or imprisonment are imposed as punishment.(16) Therefore, 
the immunity applies only to arrest in civil cases, which was a common 
procedure at the time of the Constitutional Convention.(17) 
Since

[[Page 817]]

arrests seldom attach in contemporary practice to civil suits, the 
clause has been described as virtually obsolete.(18)
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13. Although the parliamentary privilege from arrest may date from the 
        sixth century, the first legislative recognition appeared in 
        1603 in the statute of 1 James I, C. 13. See Taswell-Longmead, 
        English Constitutional History, 324-332 and note 5 (2d ed. 
        1881).
            The arrest immunity, like the speech and debate immunity, 
        was included in the U.S. Constitution with little debate or 
        discussion. See vol. 2, Records of the Federal Convention 140, 
        141, 156, 166, 180, 246, 254, 256, 267, 567, 593, 645; vol. 3, 
        148, 312, 384; vol. 4, 40-43 (Farrand ed. 1911).
14. Story, Commentaries on the Constitution of the United States, 
        Sec. 862, Da Capo Press (N.Y. repute. 1970); Williamson v U.S., 
        207 U.S. 425 (1908).
15. Williamson v U.S., 207 U.S. 425 (1908). The Court relied on 
        parliamentary precedents, and upon the meaning of the clause at 
        the time of the Constitutional Convention.
16. See 21 Am Jur 2d Criminal Law 1.
17. Long v Ansell, 293 U.S. 76, 82 (1934) noted that ``when the 
        Constitution was adopted, arrests in civil suits were still 
        common in America. It is only to such arrests that the 
        provision applies.''
            For an early case where a Member had been arrested in a 
        civil suit and released on bail, and his surety agreed to 
        surrender him four days after the close of the congressional 
        session, see Coxe v M'Clenachen, 3 Dall. 478 (Sup. Ct. Pa. 
        1798).
18. See U.S. Constitution Annotated, Library of Congress, S. Doc. No. 
        92-82, p. 117, 92d Cong. 2d Sess. (1972).
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    Questions have arisen, however, whether subpenas and summonses 
directed to Members of Congress, either as defendants in court cases, 
or as witnesses in civil and in criminal cases, constitute prohibited 
arrest. The rulings of the courts, both state and federal, have 
uniformly expressed the principle that a summons or subpena is not an 
arrest, and is not precluded by the Constitution.(19)
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19. ``Senator Long [served with summons as defendant in civil suit for 
        libel] contends that article I, section 6, clause 1 of the 
        Constitution, confers upon every Member of Congress, while in 
        attendance within the District, immunity in civil cases not 
        only from arrest, but also from service of process. Neither the 
        Senate, nor the House of Representatives, has ever asserted 
        such a claim in behalf of its Members. Clause 1 defines the 
        extent of the immunity. Its language is exact and leaves no 
        room for a construction which would extend the privilege beyond 
        the terms of the grant.'' Long v Ansell, 293 U.S. 76, 82 
        (1934).
            For other cases holding that Congressmen named as parties 
        in civil cases are not immune from summonses and service of 
        process, see Sec. 18.4, infra.
            For cases holding that Congressmen are not immune from 
        grand jury subpenas, to testify as witnesses, see 
        Sec. Sec. 18.1, 18.2, infra.
            For cases holding that Congressmen are not immune from 
        subpenas to testify as witnesses in criminal cases, when called 
        either by the defendant or by the government, see Sec. 18.3, 
        infra.
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    Likewise, a Senator or Representative is not exempt from service of 
civil process and attachment of a bank account,(20) may not 
have a civil suit postponed as a matter of right,(1) and is 
not immune from orders relating to the taking of a 
deposition.(2)
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20. Howard v Citizen Bank & Trust Co., 12 App. D.C. 222 (1898).
 1. Nones v Edsall, 1 Wall. 189, 18 F. Cases No. 10, 290 (U.S. Cir. Ct. 
        D.N.J. 1848). The court did grant the continuance as a matter 
        of judicial discretion.
 2. Yuma Greyhound Park, Inc. v Hardy, 472 P.2d 47 (Ariz. 1970).
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    The courts have recognized, however, that Congressmen sought to be 
summoned or subpenaed have a duty to be present at the sessions of 
Congress. Therefore, Congressmen have been allowed to accommodate their 
court appearance with their congressional duties.(3)
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 3. In James v Powell, 274 N.Y.S. 2d 192, 26 App. Div. 2d 295 (1966), 
        the court stated in reference to subpenas served upon Members 
        that where actual interference with the legislative process is 
        shown the courts will make suitable provision by way of 
        adjournment or fixing of a time and place of examination which 
        will obviate any real conflict.
            In U.S. v Cooper, 4 U.S. (4 Dall.) 341 (U.S. Cir. Ct. D. 
        Pa. 1800) the court stated that Members were not exempt from a 
        subpena to testify in a criminal case, but that nonattendance 
        would not necessarily result in an attachment for arrest. A 
        satisfactory reason could appear to the court to excuse 
        attendance.
            In Respublica v Duane, 4 Yeates 347 (Sup. Ct. Pa. 1807), 
        the court refused an attachment against Members for not obeying 
        a subpena, where it was alleged they were not in attendance 
        upon Congress. The court stated that a reasonable time to 
        respond must be given, and that the failure of a Member to 
        attend upon sessions must be proved.

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[[Page 818]]

    In at least one case, a Member who did not seek such accommodation 
was adjudged after the close of the session in contempt and ordered 
fined and imprisoned.(4)
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 4. See James v Powell, 274 N.Y.S. 2d 192, 26 App. Div. 2d 295 (1966), 
        aff'd, 277 N.Y.S. 2d 135, 18 N.Y. 2d 931, 223 N.E. 2d 562 
        (1966), motion to modify order granted, 279 N.Y.S. 2d 972, 19 
        N.Y. 2d 813, 226 N.E. 2d 705 (1967). The court stated that 
        interference with the duties of congressional attendance had 
        neither been alleged nor shown. The order for appearance later 
        became mooted in the case.
            An attachment during a session for willful failure to obey 
        a subpena might involve a civil arrest, prohibited by the 
        immunity from arrest. See 6 Cannon's Precedents Sec. 588.
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    If a Member were to be arrested in a civil suit during a session of 
Congress, Congress could free him through a writ of habeas 
corpus.(5)
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 5. Jefferson's Manual, House Rules and Manual Sec. 288 (1973). On one 
        occasion an arrested Member was freed by a House officer (see 3 
        Hinds' Precedents Sec. 2676).
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    The immunity from arrest applies not only while Congress is in 
session, but also while a Member is en route to or from the session. 
The time spent traveling must be a reasonable time, and the journey 
must not be abandoned through substantial deviations.(6) If 
a Member-elect with credentials travels to a session,(7) and 
is de

[[Page 819]]

nied a seat because of an election contest, he is entitled to the 
privilege until a reasonable time for his journey home has 
elapsed.(8) Several state court decisions have held that if 
a Member of Congress is absent from a session and his absence is not 
for official but for private business, the privilege does not apply to 
him.(9)
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 6. See Hoppin v Jenckes, 8 R.I. 453 (1867) (court stated that 40 days 
        before and after session was unreasonably long); Lewis v 
        Elmendorf, 2 Johnson's Cases 222 (Sup. Ct. N.Y. 1801) (arrest 
        upheld, Member 10 days en route after leaving home); Miner v 
        Markham, 28 F 387 (E.D. Wisc. 1886) (deviation to Milwaukee, 
        while traveling from California to Washington, D.C., 
        allowable).
            For commentary on a reasonable time for travel and 
        unallowable deviations while in transit, see Jefferson's 
        Manual, House Rules and Manual Sec. 289 (1973).
 7. Jefferson's Manual states that the privilege from arrest takes 
        place by force of election. House Rules and Manual Sec. 300 
        (1973).
 8. Dunton & Co. v Halstead, 2 Clark 236 (Diet. Ct. Phil. 1840) (after 
        loss of seat, excluded Member-elect delayed departure from 
        Washington pending granting of per diem allowance for return; 
        immunity from arrest upheld).
 9. Worth v Norton, 56 S.C. 56 (1899); compare Respublica v Duane, 4 
        Yeates 347 (Sup. Ct. Pa. 1807).
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    Delegates and Resident Commissioners are entitled to the immunity 
as well as Members.(10)
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10. Doty v Strong, 1 Pinn. 84 (Sup. Ct. Wisc. Territ. 1840).
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                         Collateral References
Congressional Immunity from Arrest, 70 U.S. L. Rev. 306 (June 1936).
Constitutional Privilege of Legislators: Exemption from Arrest and 
    Action for Defamation, 9 Minn. L. Rev. 442 (1925).
Legislative Immunity, Arrest Under Motor Vehicle Code, Limits of the 
    Legislative Immunity, 7 U. Pitt. L. Rev. 486 (1951).
Redfield, The Immunities of Congress from Process, 10 Geo. Wash. L. 
    Rev. 513 (Mar. 1942).
Whether a Member of Congress may, during a session of Congress, be 
    subpenaed as a witness in judicial proceedings (Memo of Legislative 
    Counsel, U.S. Senate), 103 Cong. Rec. 4203-05, 85th Cong. 1st 
    Sess., Mar. 22, 1957.                          -------------------

Grand Jury Summons

Sec. 18.1 The House has determined that a summons issued to a Member to 
    appear and testify before a grand jury while the House is in 
    session invades the rights and privileges of the 
    House.(11)
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11. But see Gravel v U.S., 408 U.S. 606 (1972) in which the Supreme 
        Court, in holding a legislative aide not immune from 
        questioning by a grand jury about alleged illegal acts related 
        to the activities of a Senator, implied that the Senator 
        himself would not be immune from a grand jury subpena, and 
        ruled that no constitutional or other privilege shielded the 
        aide or ``any other witness'' from questioning by a grand jury 
        about alleged illegal activities not implicating legislative 
        conduct. 408 U.S. at 628.
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    On Nov. 17, 1941, the House authorized by resolution Mr. Hamilton 
Fish, Jr., of New York, to appear and testify before a grand jury of 
the United States District Court for the District of Columbia at such 
time as the House was not sitting in ses

[[Page 820]]

sion.(12) The authorizing resolution was adopted pursuant to 
the report of a committee that the service of a summons to a Member to 
appear and testify before a grand jury while the House is in session 
does invade the rights and privileges of the House of Representatives, 
as based on article I, section 6 of the Constitution, providing 
immunities to Members against arrest and against being questioned for 
any speech and debate in either House.(13) The report 
indicated, however, that in each case the House may waive its 
privileges, attaching such conditions to its waiver as it may 
determine.
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12. H. Res. 340, from the Committee on the Judiciary, 87 Cong. Rec. 
        8933, 8934, 77th Cong. 1st Sess.
13. The report, from the Committee on the Judiciary, was read into the 
        Record at 87 Cong. Rec. 8933. The committee has been empowered 
        by H. Res. 335, 77th Cong. 1st Sess., to ``investigate and 
        consider whether the service of a subpena or any other process 
        by a court or a grand jury purporting to command a Member of 
        this House to appear and testify invades the rights and 
        privileges of the House of Representatives.''
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    After the resolution authorizing Mr. Fish to testify was adopted, 
there ensued debate on the scope of the immunities of 
Members.(14) The wording of the subpena in question was 
drawn into issue, since the subpena stated that once the Member 
appeared to testify he would not be permitted to depart from the court 
without leave of the court or of the District Attorney. The House 
determined by the adoption of the resolution that when the Congress is 
in session it is the duty of the House to prevent a conflict between 
the duty of a Member to represent his people at its session and his 
duty as a citizen to give court testimony.(15)
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14. 87 Cong. Rec. 8934, 8949-58.
15. H. Rept. No. 1415, 87 Cong. Rec. 8933 and the remarks of Mr. 
        Emanuel Celler (N.Y.), 87 Cong. Rec. 8935, 8936.
            For a critical analysis of the resolution adopted in 
        relation to the grand jury appearance of Mr. Fish, see 
        Redfield, The Immunities of Congress from Process, 10 Geo. 
        Wash. L. Rev. 513 (Mar. 1942).
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    Similarly, on Feb. 16, 1942,(16) the House authorized 
Mr. Steven A. Day, of Illinois, to appear and testify before a grand 
jury of the U.S. District Court for the District of Columbia when the 
House was not sitting in session. The summons to Mr. Day was raised as 
a question of personal privilege in the House.
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16. 88 Cong. Rec. 1267, 77th Cong. 2d Sess.
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Sec. 18.2 A Member, having received a subpena to testify for the 
    government before a

[[Page 821]]

    grand jury, refused to answer the subpena under his privilege as a 
    Member of the House, but stated he would make an effort to meet 
    with the grand jury when the House was not in session.

    On May 3, 1949,(17) Mr. Harold H. Velde, of Illinois, 
informed the House that he had been served with a subpena issued by a 
federal grand jury sitting in New York City demanding that he appear to 
testify in relation to an alleged violation of a conspiracy statute. He 
further stated:
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17. 95 Cong. Rec. 5544, 5545, 81st Cong. 1st Sess.
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        Mr. Speaker, most of the Members of the House are more familiar 
    than I with the procedure of grand juries and other courts in 
    subpenaing Members of Congress while it is in session. It appears 
    at this time that the debate and discussion and vote on labor 
    legislation here will continue during the time I am called to 
    appear before the grand jury; therefore I shall use my prerogative 
    as a Member of Congress and refuse to answer this subpena. For the 
    record, however, I want to say that I shall make every attempt to 
    meet with the grand jury in New York City and give it any 
    information I may have concerning the matters they are now 
    investigating.(18)
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18. Id. at p. 5544.
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    Parliamentarian's Note: Mr. Velde did appear before the grand jury 
in New York City the following weekend after having made telephonic 
arrangements with the foreman of the grand jury.

Subpena of Member as Witness

Sec. 18.3 Certain Members having been subpenaed by the defendant to 
    appear as witnesses in a contempt of Congress case, the House 
    adopted a resolution authorizing them to appear at such time when 
    the House was not sitting in session.(19)
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19. In U.S. v Cooper, 4 U.S. (4 Dall.) 341 (Cir. Ct. D. Pa. 1800), it 
        was held that there is no privilege such as to exempt Members 
        of Congress from the service, or obligation, of a subpena 
        obtained by a defendant in a criminal case. Justice Chase 
        stated that every man charged with an offense was entitled to 
        compulsory process to secure the attendance of his witnesses.
            See also Gravel v U.S., 408 U.S. 606, 615 (1972) (dicta 
        that Members of Congress not immune from service of process as 
        witness in a criminal case).
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    On Feb. 23, 1948, Mr. John S. Wood, of Georgia, arose to state a 
question of the privilege of the House, and laid before the House 
subpenas to testify, obtained by the defendant, in a contempt of 
Congress case, addressed to himself and to three other Members of

[[Page 822]]

the House.(20) After some debate, the House agreed to 
Resolution No. 477, authorizing the Members to appear in court at such 
time as the House was not sitting in session:
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20. 94 Cong. Rec. 1557, 1558, 80th Cong. 2d Sess.
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        Whereas Representatives John S. Wood, J. Hardin Peterson, John 
    R. Murdock, and Gerald W. Landis, Members of this House, have been 
    subpenaed to appear as witnesses before the District Court of the 
    United States for the District of Columbia to testify at 10 a.m. on 
    the 24th day of February 1948, in the case of the United States v. 
    Richard Morford, Criminal No. 366-47; and
        Whereas by the privileges of the House no Member is authorized 
    to appear and testify but by the order of the House: Therefore be 
    it
        Resolved, That Representatives John S. Wood, J. Hardin 
    Peterson, John R. Murdock, and Gerald W. Landis are authorized to 
    appear in response to the subpenas of the District Court of the 
    United States for the District of Columbia in the case of the 
    United States v. Richard Morford at such time as when the House is 
    not sitting in session; and be it further
        Resolved, That a copy of these resolutions be transmitted to 
    the said court as a respectful answer to the subpenas of the said 
    court.(1)
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 1. For similar resolutions adopted by the House upon the service of 
        subpenas to Members in congressional contempt cases, see 99 
        Cong. Rec. 1658, 83d Cong. 1st Sess., Mar. 5, 1953; 97 Cong. 
        Rec. 11571, 82d Cong. 1st Sess., Sept. 18, 1951; 97 Cong. Rec. 
        6084, 82d Cong. 1st Sess., June 4, 1951; 94 Cong. Rec. 4347, 
        80th Cong. 2d Sess., Apr. 12, 1948; 94 Cong. Rec. 4264, 80th 
        Cong. 2d Sess., Apr. 8, 1948; and 94 Cong. Rec. 2224, 80th 
        Cong. 2d Sess., Mar. 5, 1948.
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    In explanation of the resolution, Mr. Earl C. Michener, of 
Michigan, referred to the precedent set on Nov. 17, 1941, when the 
House adopted a similar resolution, in reference to grand jury 
subpenas.(2) He further stated:
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 2. See Sec. 18.1, supra.
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        First, the Constitution lodges a discretion in the House. This 
    resolution simply exercises that discretionary power. This 
    privilege can only be waived by the House, and not by the 
    individual Member. It seems that Members of some committees have 
    been voluntarily appearing in response to subpenas to appear in 
    court. No question was raised. The right of the House to function 
    and the right of Members to be present and vote must not be 
    interfered with.(3)
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 3. 94 Cong. Rec. 1559, 80th Cong. 2d Sess.
            When Members are subpenaed to appear as witnesses in civil 
        cases, where they are named as parties, the House may adopt 
        resolutions authorizing them to appear when the House is not 
        sitting in session (see 100 Cong. Rec. 10904, 83d Cong. 2d 
        Sess., July 19, 1954; 100 Cong. Rec. 1675-77, 83d Cong. 2d 
        Sess., Feb. 12, 1954).

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[[Page 823]]

Sec. 18.4 Where Members and employees of the House were subpenaed to 
    testify in a private civil suit alleging damage from acts committed 
    in the course of their official duties, the House referred the 
    matter to the Committee on the Judiciary to determine whether the 
    rights of the House were being invaded.(4)
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 4. Congressmen are not immune from the service or obligation of 
        summonses or subpenas when named as defendants in civil cases, 
        Long v Ansell, 293 U.S. 76 (1934). Contempt may lie against a 
        Congressman for refusing to obey a subpena when named as a 
        defendant in a civil case. James v Powell, 274 N.Y.S. 2d 192, 
        26 App. Div. 2d 295 (1966), aff'd, 277 N.Y.S. 2d 135, 18 N.Y. 
        2d 931, 223 N.E. 2d 562 (1966), motion to modify order granted, 
        279 N.Y.S. 2d 972, 19 N.Y. 2d 813, 226 N.E. 2d 705 (1967). See 
        also Yuma Greyhound Park, Inc. v Hardy, 472 P.2d 47 (Ariz. 
        1970); James v Powell, 250 N.Y.S. 2d 635, 43 Misc. 2d 314 
        (1964); People on Complaint of James v Powell, 243 N.Y.S. 2d 
        555, 40 Misc. 2d 593 (1963); Worth v Norton, 56 S.C. 56 (1899); 
        Howard v Citizen Bank & Trust Co., 12 App. D.C. 222 (1898); 
        Bartlett v Blair, 68 N.H. 232 (1894).
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    On Mar. 26, 1953,(5) the House was informed of the 
subpena of members and employees of the Committee on Un-American 
Activities in a civil suit contending that acts committed in the course 
of an investigation of the committee had injured the plaintiffs. The 
House by resolution (H. Res. 190) referred the matter to the Committee 
on the Judiciary to investigate whether the rights and privileges of 
the House, as based upon the immunities from arrest and of speech and 
debate, were being invaded:
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 5. 99 Cong. Rec. 2356-58, 83d Cong. 1st Sess.
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        Whereas Harold H. Velde, of Illinois; Donald L. Jackson, of 
    California; Francis E. Walter, of Pennsylvania; Morgan M. Moulder, 
    of Missouri; Clyde Doyle, of California; and James B. Frazier, Jr., 
    of Tennessee, all Representatives in the Congress of the United 
    States; and Louis J. Russell and William Wheeler, employees of the 
    House of Representatives, have been by subpenas commanded to appear 
    on Monday and Tuesday, March 30 and 31, 1953, in the city of Los 
    Angeles, Calif., and to testify and give their depositions in the 
    case of Michael Wilson et al. v Loew's Incorporated et al., an 
    action pending in the Superior Court of the State of California in 
    and for the County of Los Angeles; and
        Whereas the complaint in the aforesaid case of Michael Wilson 
    et al. v Loew's Incorporated et al., lists among the parties 
    defendant therein John S. Wood, Francis E. Walter, Morgan M. 
    Moulder, Clyde Doyle, James B. Frazier, Harold E. Velde, Barnard W. 
    Kearney, Donald L. Jackson, Charles E. Potter, Louis J. Russell, 
    and William Wheeler; and

[[Page 824]]

        Whereas part III of said complaint reads as follows:
        ``At all times herein mentioned defendant John S. Wood was the 
    chairman of the Committee on Un-American Activities, United States 
    House of Representatives; defendants Francis E. Walter, Morgan M. 
    Moulder, Clyde Doyle, James B. Frazier, Harold E. Velde, Barnard W. 
    Kearney, Donald L. Jackson, and Charles E. Potter were members of 
    the said committee; Louis J. Russell was senior investigator of 
    said committee; William Wheeler was an investigator of said 
    committee and 41 Doe, 42 Doe, 43 Doe, 44 Doe, 45 Doe, 46 Doe, 47 
    Doe, 48 Doe, 49 Doe, and 50 Doe were representatives of said 
    committee.
        ``At all times mentioned herein and with respect to the matters 
    hereinafter alleged the defendants named in the preceding paragraph 
    acted both in their official capacity with relation to said House 
    Committee on Un-American Activities and individually in nonofficial 
    capacities''; and
        Whereas part V of said complaint contains an allegation that 
    ``on and prior to March 1951 and continuously thereafter defendants 
    herein and each of them conspired together and agreed with each 
    other to blacklist and to refuse employment to and exclude from 
    employment in the motion picture industry all employees and persons 
    seeking employment in the motion-picture industry who had been or 
    thereafter were subpenaed as witnesses before the Committee on Un-
    American Activities of the House of Representatives . . .''; and
        Whereas article I, section 6, of the Constitution of the United 
    States provides: ``They (the Senators and Representatives) shall in 
    all cases, except treason, felony, and breach of the peace, be 
    privileged from arrest during their attendance at the session of 
    their respective Houses, and in going to and returning from the 
    same . . . and for any speech or debate in either House, they (the 
    Senators and Representatives) shall not be questioned in any other 
    place''; and
        Whereas the service of such process upon Members of this House 
    during their attendance while the Congress is in session might 
    deprive the district which each respectively represents of his 
    voice and vote; and
        Whereas the service of such subpenas and summons upon Members 
    of the House of Representatives who are members of a duly 
    constituted committee of the House of Representatives, and the 
    service of such subpenas and summons upon employees of the House of 
    Representatives serving on the staff of a duly constituted 
    committee of the House of Representatives, will hamper and delay if 
    not completely obstruct the work of such committee, its members, 
    and its staff employees in their official capacities; and
        Whereas it appears by reason of allegations made in the 
    complaint in the said case of Michael Wilson, et al. v Loew's 
    Incorporated, et al., and by reason of the said processes 
    hereinbefore mentioned the rights and privileges of the House of 
    Representatives may be infringed:
        Resolved, That the Committee on the Judiciary, acting as a 
    whole or by subcommittee, is hereby authorized and directed to 
    investigate and consider whether the service of the processes

[[Page 825]]

    aforementioned purporting to command Members, former Members, and 
    employees of this House to appear and testify invades the rights 
    and privileges of the House of Representatives; and whether in the 
    complaint of the aforementioned case of Michael Wilson, et al. v 
    Loew's Incorporated, et al., the allegations that Members, former 
    Members, and employees of the House of Representatives acting in 
    their official capacities as members of a committee of the said 
    House conspired against the plaintiffs in such action to the 
    detriment of such plaintiffs, and any and all other allegations in 
    the said complaint reflecting upon Members, former Members, and 
    employees of this House and their actions in their representative 
    and official capacities, invade the rights and privileges of the 
    House of Representatives. The committee may report at any time on 
    the matters herein committed to it, and until the committee shall 
    report and the House shall grant its consent in the premises the 
    aforementioned Members, former Members, and employees shall refrain 
    from responding to the subpenas or summons served upon them.
        The committee or any subcommittee thereof is authorized to sit 
    and act at such times and places within the United States, whether 
    or not the House is sitting, has recessed, or has adjourned, to 
    hold such hearings, and to require the attendance of such witnesses 
    and the production of such books, papers, and documents, and to 
    take such testimony, as it deems necessary. Subpenas may be issued 
    over the signature of the chairman or by any member designated by 
    him, and may be served by any person designated by such chairman or 
    member. The committee is authorized to inure all expenses necessary 
    for the purposes hereof, including but not limited to expenses of 
    travel and subsistence, employment of counsel and other persons to 
    assist the committee or subcommittee, and if deemed advisable by 
    the committee, to employ counsel to represent any and all of the 
    Members, former Members, and employees of the House of 
    Representatives named as parties defendant in the aforementioned 
    action of Michael Wilson, et al. v Loew's Inc., et al., and such 
    expenses shall be paid from the Contingent Fund of the House of 
    Representatives on vouchers authorized by said committee and signed 
    by the chairman thereof and approved by the Committee on House 
    Administration; and be it further
        Resolved, That a copy of these resolutions be transmitted to 
    the Superior Court of the State of California in and for the county 
    of Los Angeles as a respectful answer to the subpenas of the said 
    court addressed to the aforementioned Members, former Members, and 
    employees of the House of Representatives, or any of them.

    Mr. John W. McCormack, of Massachusetts, stated in reference to the 
resolution that ``for the House to take any other action would be 
fraught with danger, for otherwise there is nothing to stop any number 
of suits being filed against enough Members of the House, and in 
summoning them, to impair the efficiency of the House of 
Representatives or the Senate to act and function as leg

[[Page 826]]

islative bodies.'' He also stated that the fact that the Members and 
employees subpenaed were presently in California in the performance of 
their official duties was immaterial, as they were ``out there on 
official business, and committees of this body are the arms of the 
House of Representatives.'' (6)
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 6. Id. at p. 2357.
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Summons to Member as Defendant

Sec. 18.5 The receipt by a Member of a summons to appear before a court 
    for a traffic violation gave rise to a question of privilege of the 
    House, and the House authorized the Member to appear when the House 
    was not in session.(7)
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 7. For the proposition that the clause granting Congressmen immunity 
        from arrest does not apply to criminal cases and proceedings, 
        see Williamson v U.S., 207 U.S. 425 (1908) (constitutional 
        words ``treason, felony and breach of the peace'' except from 
        the privilege all criminal offenses); Gravel v U.S., 408 U.S. 
        606 (1972) (applies only to arrests in civil suits) (dictum); 
        Long v Ansell, 293 U.S. 76 (1934) (applies only to arrests in 
        civil suits) (dictum); Burton v U.S., 169 U.S. 283 (1905) (no 
        application to felonies) (dictum); U.S. v Wise, 1 Hayward and 
        Hazleton 82, 28 F Cases 16,746a (1848) (no application to 
        breach of the peace); State v Smalls, 11 S.C. 262 (1878) (no 
        application to criminal indictment in state court).
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    On Apr. 13, 1953,(8) Mr. Clare E. Hoffman, of Michigan, 
stated a question of the privilege of the House when he informed the 
House that he had been summoned to appear before a court in Maryland in 
connection with an alleged traffic violation. Mr. Hoffman stated that 
under the precedents of the House, he was unable to comply with the 
summons without the consent of the House. He then submitted a 
resolution authorizing him to appear when the House was not sitting in 
session and stated that he would at some future time which suited the 
convenience of the court appear and submit to its decision.
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 8. 99 Cong. Rec. 3013, 3014, 83d Cong. 1st Sess.
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    The House agreed to the resolution.(9)
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 9. See Legislative Immunity, Arrest Under Motor Vehicle Code, Limits 
        of the Legislative Immunity, 7 U. Pitt. L. Rev. 150 (Jan. 
        1941).
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