[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 105th Congress]
[105th Congress]
[House Document 104-272]
[Jeffersons Manual of ParliamentaryPractice]
[Pages 120-139]
[From the U.S. Government Publishing Office, www.gpo.gov]


 

                          sec. iii.--privilege.


[[Page 121]]

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 independence are preserved by keeping their privileges 
indefinite; and that `the maxims upon which they proceed, together 
with the method of proceeding, rest entirely in their own breast, 
and are not defined and ascertained by any particular stated laws.' '' 
1 Blackst., 163, 164.


Sec. 287. Privileges of members of 
Parliament.

  The  privileges of 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 points 
of progression at which they now are. It is now acknowledged, 1st. That 
they are at all times exempted from question elsewhere, for anything 
said in their own House; that during the time of privilege, 2d. Neither 
a member himself, his, order H. of C. 1663, July 16, wife, nor his 
servants (familiares sui), for any matter of their own, may be, Elsynge, 
217; 1 Hats., 21; 1 Grey's Deb., 133, arrested on mesne process, in any 
civil suit: 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 



[[Page 122]]

seems to stand at present on the following ground: 1. The act of arrest 
is void, ab initio. 2 Stra., 989. 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 stayed or corrected by the superior 
courts.


Sec. 288. Privilege of Members of Congress under the 
Constitution.

  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 
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 I, Sec. 6. Under the general authority ``to 
make all laws necessary and proper for carrying into execution the 
powers given them,'' Const. U.S., Art. II, 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 



[[Page 123]]

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.


Sec. 289. Privilege as to going and returning.

  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 





Sec. 290. Privilege of Members as related to rights of 
courts to summon witnesses and jurors.

  This  privilege from arrest, 
privileges, of course, against all process the disobedience to which is 
punishable by an attachment of the person; as 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; 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.



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to produce in court, in obedience to a summons, an original paper from 
the files, but has given the court facilities for making copies (III, 
2664, 2666; Apr. 15, 1948, p. 4552; Apr. 29, 1948, pp. 5161, 5162; May 6, 
1948, p. 5432; Jan. 18, 1950, p. 565; Feb. 8, 1950, p. 1695; Feb. 13, 1950, 
p. 1765; Sept. 22, 1950, p. 15636; Apr. 6, 1951, p. 3403; Apr. 12, 1951, 
p. 3800; Oct. 20, 1951, p. 13777; Jan. 22, 1953, p. 498; May 25, 1953, 
p. 5523; Jan. 28, 1954, pp. 964-65; Feb. 25, 1954, pp. 2281-82; July 1, 
1955, pp. 9818-19; Apr. 12, 1956, p. 6258; Apr. 24, 1958, p. 7262; Apr. 29, 
1958, p. 7636; Sept. 16, 1974, p. 31123; Jan. 19, 1977, pp. 1728-29), but on 
one occasion, where the circumstances warranted such action, the Clerk 
was permitted to respond and take with him certified copies of certain 
documents described in the subpoena (H. Res. 601, Oct. 29, 1969, p. 
32005); and on the rare occasions where the House has permitted the 
production of an original paper from its files, it has made explicit 
provision for its return (H. Res. 1022, 1023, Jan. 16, 1968, pp. 80-81; 
H. Res. 1429, July 27, 1976, pp. 24089-90). No officer or employee, 
except by authority of the House, should produce before any court a 
paper from the files of the House, nor furnish a copy of any paper 
except by authority of the House or a statute (III, 2663; VI, 587; Apr. 
15, 1948, p. 4552; Apr. 30, 1948, pp. 5161, 5162; May 6, 1948, p. 5432; 
Jan. 18, 1950, p. 565; Feb. 8, 1950, p. 1695; Feb. 13, 1950, p. 1765; 
Sept. 22, 1950, p. 15636; Apr. 6, 1951, p. 3403; Apr. 12, 1951, p. 3800; 
Oct. 20, 1951, p. 13777; Mar. 10, 1954, pp. 3046-47; Feb. 7, 1955, p. 
1215; May 7, 1956, p. 7588; Dec. 18, 1974, p. 40925). In the 98th 
Congress, the House adopted a resolution denying compliance with a 
subpoena issued by a Federal Court for the production of records in the 
possession of the Clerk (documents of a select committee from the prior 
Congress), where the Speaker and joint leadership had instructed the 
Clerk in the previous Congress not to produce such records and where the 
Court refused to stay the subpoena or to allow the select committee to 
intervene to protect its interest; the resolution directed the Counsel 
to the Clerk to assert the rights and privileges of the House and to 
take all steps necessary to protect the rights of the House (Apr. 28, 
1983, p. 10417). On appeal from a subsequent district court judgment 
finding the Clerk in contempt, the Court of Appeals reversed on the 
ground that a subpoena to depose a nonparty witness under the Federal 
Rules of Civil Procedure may only be served in the district (of 
Maryland) where it was issued. In re Guthrie, 733 F.2d 634 (4th Cir. 
1984). Where an official of both Houses of Congress is subpoenaed in his 
official capacity, the concurrence of both Houses by concurrent 
resolution is required to permit compliance (H. Con. Res. 342, July 16, 
1975, pp. 23144-46).


Sec. 291a. Attitude of the House as to demands of the 
courts.

  The  House has decided that the summons of a court to Members to 
attend and testify constituted a breach of privilege, and directed them 
to disregard the mandate (III, 2661); but in other cases wherein Members 
informed the House that they had been summoned before the District Court 
of the United States for the District of Columbia or other courts, the 
House authorized them to respond (III, 2662; Feb. 23, 1948, p. 1557; 
Mar. 5, 1948, p. 2224; Apr. 8, 1948, p. 4264; Apr. 12, 1948, p. 4347; 
Apr. 14, 1948, p. 4461; Apr. 15, 1948, p. 4529; Apr. 28, 1948, p. 5009; 
May 6, 1948, pp. 5433, 5451; Feb. 2, 1950, p. 1399; Apr. 4, 1951, p. 
3320; Apr. 9, 1951, p. 3525; Apr. 12, 1951, pp. 3751, 3752; Apr. 13, 
1951, p. 3915; June 4, 1951, p. 6084; June 22, 1951, p. 7001; Sept. 18, 
1951, p. 11571; Sept. 27, 1951, p. 12292; Mar. 5, 1953, p. 1658; Mar. 
18, 1953, p. 2085; Mar. 11, 1954, p. 3102; July 19, 1954, p. 10904; Apr. 
9, 1956, p. 5970; Apr. 10, 1956, p. 5991). The House, however, has 
declined to make a general rule permitting Members to waive their 
privilege, preferring that the Member in each case should apply for 
permission (III, 2660). Also in maintenance of its privilege the House 
has refused to permit the Clerk or other officers 



[[Page 125]]

thereof through the Clerk of the House 
(see, e.g., H. Res. 12, Jan. 3, 1973, pp. 30-31). In the 95th Congress, 
the House for the first time by resolution permitted this same type of 
general response whether or not the House is in session or in 
adjournment if a court has found that specific documents in possession 
of the House are material and relevant to judicial proceedings. The 
House reserved to itself the right to revoke this general permission in 
any specific case where the House desires to make a different response 
(H. Res. 10, Jan. 4, 1977, p. 73; H. Res. 10, Jan. 15, 1979, p. 19). The 
permission did not apply to executive session material, such as a 
deposition of a witness in executive session of a committee, which could 
be released only by a separate resolution passed by the House (H. Res. 
296, June 4, 1979, p. 13180). H. Res. 10 of the 96th Congress was 
clarified and revised later in that Congress by H. Res. 722 (Sept. 17, 
1980, pp. 25777-90) and became the basis for rule L added in the 97th 
Congress (H. Res. 5, Jan. 5, 1981, pp. 98-113, see Sec. 946, infra).
  A resolution routinely adopted up to the 95th Congress provided that 
when the House had recessed or adjourned Members, officers, and 
employees were authorized to appear in response to subpoenas duces 
tecum, but prohibited the production of official papers in response 
thereto; the resolution also provided that when a court found that 
official papers, other than executive session material, were relevant, 
the court could obtain copies 


[[Page 126]]

tions authorizing the chairman of a 
subcommittee to intervene in any judicial proceeding concerning 
subpoenas duces tecum issued by that committee, authorizing the 
appointment of a special counsel to carry out the purposes of such a 
resolution, and providing for the payment from the contingent fund (now 
referred to as ``applicable accounts of the House described in clause 
1(h)(1) of rule X'') of expenses to employ such special counsel (H. Res. 
1420, Aug. 26, 1976, pp. 1858-59; H. Res. 334, May 9, 1977, pp. 13949-
52), authorizing the Sergeant at Arms to employ a special counsel to 
represent him in a pending action in federal court in which he was named 
as a defendant, and providing for the payment from the contingent fund 
of expenses to employ such counsel (H. Res. 1497, Sept. 2, 1976, p. 
28937), and authorizing the Chairman of the Committee on House 
Administration to intervene as a party in a pending civil action in the 
U.S. Court of Claims, to defend on behalf of the House the 
constitutional authority to make laws necessary and proper for executing 
its constitutional powers, authorizing the employment of special counsel 
for such purpose, and providing for the payment from the contingent fund 
of expenses to employ such counsel (H. Res. 884, Nov. 2, 1977, p. 
36661). The House has authorized the Speaker to take any steps he 
considered necessary, including intervention as a party or by submission 
of briefs amicus curiae, in order to protect the interests of the House 
before the court (H. Res. 49, Jan. 29, 1981, p. 1304). The House has 
also on occasion adopted privileged resolutions, reported from the 
Committee on Rules, authorizing standing or select committees to make 
applications to courts in connection with their investigations (H. Res. 
252, Feb. 9, 1977, pp. 3966-75; H. Res. 760, Sept. 28, 1977, pp. 31329-
36; H. Res. 67, Mar. 4, 1981, pp. 3529-33).


Sec. 291b. Judicial appearances on behalf of 
House.

  While  the statutes provide that the Department of Justice may 
represent any officer of the House or Senate in the event of judicial 
proceedings against such officer in relation to the performance of 
official duties (see 2 U.S.C. 118), and that the Department of Justice 
shall generally represent the interests of the United States in Court 
(28 U.S.C. 517), the House has on occasion authorized special 
appearances on its own behalf by special counsel when the prerogatives 
or powers of the House have been questioned in the courts. The House has 
adopted privileged resolu-





Sec. 292. Attitude of one House as to demands of the 
other for attendance or papers.

  When  either House desires the attendance of 
a Member of the other to give evidence it is the practice to ask the 
House of which he is a Member that the Member have leave to attend, and 
the use of a subpoena is of doubtful propriety (III, 1794). But in one 
case, at least, the Senate did not consider that its privilege forbade 
the House to summon one of its officers as a witness (III, 1798). But 
when the Secretary of the Senate was subpoenaed to appear before a 
committee of the House with certain papers from the files of the Senate, 
the Senate discussed the question of privilege before empowering him to 
attend (III, 2665). For discussion of the means by which one House may 
prefer a complaint against a Member or officer of the other, see 
Sec. 373, infra.



[[Page 127]]



Sec. 293. Power of the House to punish for contempts.

  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 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 Representatives 
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. * * *




Sec. 294. Decision of the court in Anderson's 
case.

  The  cases of Randall and Whitney (II, 1599-1603) were followed in 
1818 by the case of John Anderson, a citizen, who for attempted bribery 
of a Member was arrested, tried, and censured by the House (II, 1606). 
Anderson appealed to the courts and this procedure finally resulted in a 
discussion by the Supreme Court of the United States of the right of the 
House to punish for contempts, and a decision that the House by 
implication has the power to punish, since ``public functionaries must 
be left at liberty to exercise the powers which the people have 
intrusted to them,'' and ``the interests and dignity of those who 
created them require the exertion of the powers indispensable to the 
attainment of the ends of their creation. Nor is a casual conflict with 
the rights of particular individuals any reason to be urged against the 
exercise of such powers'' (II, 1607; Anderson v. Dunn, 6 Wheaton 204). 
In 1828 an assault on the President's secretary in the Capitol gave rise 
to a question of privilege which involved a discussion of the inherent 
power of the House to punish for contempt (II, 1615). Again in 1832, 
when the House censured Samuel Houston, a citizen, for assault on a 
Member for words spoken in debate (II, 1616), there was a discussion by 
the House of the doctrine of inherent and implied power as opposed to 
the other doctrine that the House might exercise no authority not 
expressly conferred on it by the Constitution or the laws of the land 
(II, 1619). In 1865 the House arrested and censured a citizen for 
attempted intimidation and assault on a member (II, 1625); in 1866, a 
citizen who had assaulted the clerk of a committee of the House in the 
Capitol was arrested by order of the House, but as there was not time to 
punish in the few remaining days of the session, the Sergeant-at-Arms 
was directed to turn the prisoner over to the civil authorities of the 
District of Columbia (II, 1629); and in 1870 one Woods, who had 
assaulted a Member on his way to the House, was arrested on warrant of 
the Speaker, arraigned at the bar, and imprisoned for a term extending 
beyond the adjournment of the session, although not beyond the term of 
the existing House (II, 1626-1628).



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exists as one necessary to enable either House 
of Congress to exercise successfully their function of legislation. This 
latter proposition is one that we do not propose to decide in the 
present case, because we are able to decide it without passing upon the 
existence or nonexistence of such a power in aid of the legislative 
function'' (103 U.S. 189; II, 1611). In 1894, in the case of Chapman, 
another contumacious witness, the Supreme Court affirmed the undoubted 
right of either House of Congress to punish for contempt in cases to 
which its power properly extends under the expressed terms of the 
Constitution (II, 1614; In Re Chapman, 166 U.S. 661). The nature of the 
punishment which the House may inflict was discussed by the Court in 
Anderson's case (II, 1607; Anderson v. Dunn, 6 Wheaton 204).


Sec. 295. Views of the court in Kilbourn's case.

  In  1876 the 
arrest and imprisonment by the House of Hallet Kilbourn, a contumacious 
witness, resulted in a decision by the Supreme Court of the United 
States that the House had no general power to punish for contempt, as in 
a case wherein it was proposing to coerce a witness in an inquiry not 
within the constitutional authority of the House. The Court also 
discussed the doctrine of inherent power to punish, saying in 
conclusion, ``We are of opinion that the right of the Houses of 
Representatives to punish the citizen for a contempt of its authority or 
a breach of its privileges can derive no support from the precedents and 
practices of the two Houses of the English Parliament, nor from the 
adjudged cases in which the English courts have upheld these practices. 
Nor, taking what has fallen from the English judges, and especially the 
later cases on which we have just commented, is much aid given to the 
doctrine, that this power 




Sec. 296. Decision of the court in Marshall v. Gordon.

  In the case of Marshall v. Gordon, 243 U.S. 521, the Court stated:
   
Appellant while United States Attorney for the Southern District of New 
York conducted a grand jury investigation which led to the indictment of 
a Member of the House of Representatives. Acting on charges of 
misfeasance and nonfeasance made by the Member against appellant in part 
before the indictment and renewed with additions afterward, the House by 
resolution directed its Judiciary Committee to make inquiry and report 
concerning appellant's liability to impeachment. Such inquiry being in 
progress through a subcommittee, appellant addressed to the 
subcommittee's chairman, and gave to the press, a letter, charging the 
subcommittee with an endeavor to probe into and frustrate the action of 
the grand jury, and couched in terms calculated to arouse the 
indignation of the members of that committee and those of the House 
generally. Thereafter, appellant was arrested in New York by the 
Sergeant at Arms pursuant to a resolution of the House whereby the 
letter was characterized as defamatory and insulting and as tending to 
bring that body into public contempt and ridicule, and whereby appellant 
in writing and publishing such letter was adjudged to be in contempt of 
the House in violating its privileges, honor, and dignity. He applied 
for habeas corpus.


  The court held that the proceedings concerning which the alleged 
contempt was committed were not impeachment proceedings; that, whether 
they were impeachment proceedings or not, the House was without power by 
its own action, as distinct from such action as might be taken under 
criminal laws, to arrest or punish for such acts as were committed by 
appellant.


[[Page 129]]

distinction between legislative, executive, and judicial 
power, and repugnant to limitations which the Constitution fixes 
expressly; hence there is no warrant whatever for implying such a dual 
power in aid of other powers expressly granted to Congress. The House 
has implied power to deal directly with contempt so far as is necessary 
to preserve and exercise the legislative authority expressly granted. 
Being, however, a power of self-preservation, a means and not an end, 
the power does not extend to infliction of punishment, as such; it is a 
power to prevent acts which in and of themselves inherently prevent or 
obstruct the discharge of legislative duty and to compel the doing of 
those things which are essential to the performance of the legislative 
functions. As pointed out in Anderson v. Dunn, 6 Wheat., 204 this 
implied power in its exercise is limited to imprisonment during the 
session of the body affected by the contempt.
  No express power to punish for contempt was granted to the House of 
Representatives save the power to deal with contempts committed by its 
own Members (art. I, sec. 5). The possession by Congress of the 
commingled legislative and judicial authority to punish for contempts 
which was exerted by the House of Commons is at variance with the view 
and tendency existing in this country when the Constitution was adopted, 
as evidenced by the manner in which the subject was treated in many 
State constitutions, beginning at or about that time and continuing 
thereafter. Such commingling of powers would be destructive of the basic 
constitutional 

  The authority does not cease when the act complained of has been 
committed, but includes the right to determine in the use of legitimate 
and fair discretion how far from the nature and character of the act 
there is necessity for repression to prevent immediate recurrence, i.e., 
the continued existence of the interference or obstruction to the 
exercise of legislative power. In such case, unless there be manifest an 
absolute disregard of discretion, and a mere exertion of arbitrary power 
coming within the reach of constitutional limitations, the exercise of 
the authority is not subject to judicial interference. The power is the 
same in quantity and quality whether exerted on behalf of the 
impeachment powers or of the others to which it is ancillary. The 
legislative power to provide by criminal laws for the prosecution and 
punishment of wrongful acts is not here involved.

  The Senate may invoke its civil contempt statute (2 U.S.C. 288d) to 
direct the Senate legal counsel to bring an action in Federal court to 
compel a witness to comply with the subpoena of a committee of the 
Senate. The House, in contrast, may either certify such a witness to the 
appropriate United States Attorney for possible indictment under the 
criminal contempt statute (2 U.S.C. 192) or exercise its inherent power 
to commit for contempt by detaining the recalcitrant witness in the 
custody of the Sergeant-at-Arms.


  (See also McGrain v. Daugherty, 273 U.S. 135; Sinclair v. United 
States, 279 U.S. 263; Jurney v. MacCracken, 294 U.S. 125; Groppi v. 
Leslie, 404 U.S. 496.)


[[Page 130]]

the law of nature, and every body of men, possesses the right of 
self-defense; 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 therefore have a power to punish these 
disturbers of our peace and proceedings. * * *


Sec. 297. Jefferson's statement of arguments for 
inherent power to punish for contempt.

  * * *  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 



[[Page 131]]

Government by the same State laws adopted in each 
State, by a law of Congress; that none of these bodies, therefore, 
derive those powers from natural or necessary right, but from express 
law; that Congress have no such natural or necessary power, nor any 
powers but such as are given them by the Constitution; that that has 
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 authorizes 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 meantime, 
however, 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 Presi-

[[Page 132]]

dent; and also as, the law being promulgated, the citizen will know how to 
avoid offense. 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 offense is to be kept 
undefined and to be declared only ex re nata, and according 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. * * *


Sec. 298. Statement of arguments against the inherent 
power to punish for contempts.

  * * *  To this it was answered, 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 completely, 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 





Sec. 299. Jefferson's suggestion that a law might define 
procedure in cases of contempt.

  * * *  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 to 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 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.



[[Page 133]]

(II, 1598). Congress has, however, prescribed that a witness 
summoned to appear before a committee of either House who does not 
respond or who refuses to answer a question pertinent to the subject of 
the inquiry shall be deemed guilty of a misdemeanor (2 U.S.C. 192). A 
resolution directing the Speaker to certify to the U.S. Attorney the 
refusal of a witness to respond to a subpoena issued by a House 
committee may be offered from the floor as privileged, since the 
privileges of the House are involved, and a committee report to 
accompany the resolution may therefore be presented to the House without 
regard to the 3-day availability requirement for other reports (see 
clause 2(l)(6) of rule XI; July 13, 1971, pp. 24720-23). A resolution 
with two resolve clauses separately directing the certification of the 
contemptuous conduct of two individuals is subject to a demand for a 
division of the question as to each individual (contempt proceedings 
against Ralph and Joseph Bernstein, Feb. 27, 1986, p. 3061). In the 97th 
Congress, the Committee on Energy and Commerce filed a report (H. Rept. 
97-898) on proceedings against the Secretary of the Interior James G. 
Watt for withholding subpoenaed documents and for failure to answer 
questions relating to reciprocity under the Mineral Lands Leasing Act. 
Also in the 97th Congress, the House adopted a resolution directing the 
Speaker to certify to the United States Attorney the failure of an 
official of the executive branch (Anne M. Gorsuch, Administrator, 
Environmental Protection Agency) to submit executive branch documents to 
a House subcommittee pursuant to a subcommittee subpoena; this was the 
first occasion on which the House cited an executive official for 
contempt of Congress (H. Res. 632, Dec. 16, 1982, p. 31754). In the 
following Congress, the 98th, the House adopted (as a question of 
privilege) a resolution reported from the same committee certifying to 
the United States Attorney the fact that an agreement has been entered 
into between the committee and the Executive Branch for access by the 
committee to the documents which Anne Gorsuch had failed to submit and 
which were the subject of the contempt citation (where the contempt had 
not yet been prosecuted) (Aug. 3, 1983, p. 22692). In other cases where 
subsequent compliance had been accomplished in the same Congress, the 
House has adopted privileged resolutions certifying the facts to the 
United States Attorney to the end that contempt proceedings be 
discontinued (see Deschler's Precedents, vol. 4, ch. 15, sec. 21). In 
the 98th Congress, the House adopted a privileged resolution directing 
the Speaker to certify to the United States Attorney the refusal of a 
former official of the executive branch to obey a subpoena to testify 
before a subcommittee (H. Res. 200, May 18, 1983, p. 12720).-
  In 1837 the House declined to proceed with a bill ``defining the 
offense of a contempt of this House, and to provide for the punishment 
thereof'' 


[[Page 134]]

vote until he is sworn, Memor., 107, 108. D'Ewes, 642, col. 2; 643, col. 1. 
Pet. Miscel. Parl., 119. Lex. Parl., c. 23.2 Hats., 22, 62.



Sec. 300. Status of Memberelect as to privilege, 
oath, committee service, etc.

  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 extent a Member except that he cannot 


  The Constitution of the United States limits the broad Parliamentary 
privilege to the time of attendance on sessions of Congress, and of 
going to and returning therefrom. In a case wherein a Member was 
imprisoned during a recess of Congress, he remained in confinement until 
the House, on assembling, liberated him (III, 2676).


  It is recognized in the practice of the House that a Member may be 
named to a committee before he is sworn, and in some cases Members have 
not taken the oath until long afterwards (IV, 4483), although in the 
modern practice Members-elect have been elected to standing committees 
effective only when sworn (H. Res. 26, 27; Jan. 6, 1983, p. 132). In one 
case, wherein a Member did not appear to take the oath, the Speaker with 
the consent of the House appointed another Member to the committee place 
(IV, 4484). The status of a Member-elect under the Constitution 
undoubtedly differs greatly from the status of a Member-elect under the 
law of Parliament. In various inquiries by committees of the House this 
question has been examined, with the conclusions that a Member-elect 
becomes a Member from the very beginning of the term to which he was 
elected (I, 500), that he is as much an officer of the Government before 
taking the oath as afterwards (I, 185), and that his status is 
distinguished from that of a Member who has qualified (I, 183, 184). 
Members-elect may resign or decline before taking the oath (II, 1230-
1233, 1235); they have been excluded (I, 449, 464, 474, 550, 551; VI, 
56; Mar. 1, 1967, pp. 4997-5038), and in one case a Member-elect was 
expelled (I, 476; II, 1262). The names of Members who have not been 
sworn are not entered on the roll from which the yeas and nays are 
called for entry on the Journal (V, 6048; VIII, 3122), nor are such 
Members-elect permitted to vote or introduce bills.



Sec. 301. Relations of Members and others to 
privilege.

  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.


[[Page 135]]

not in effect waive the privilege of the House. 3 Grey, 140, 222.

  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 can-

  Although the privilege of Members of the House of Representatives is 
limited by the Constitution, these provisions of the Parliamentary law 
are applicable, and persons who have attempted to bribe Members (II, 
1599, 1606), assault them for words spoken in debate (II, 1617, 1625) or 
interfere with them while on the way to attend the sessions of the House 
(II, 1626), have been arrested by order of the House by the Sergeant-at-
Arms, ``Wherever to be found.'' The House has declined to make a general 
rule to permit Members to waive their privilege in certain cases, 
preferring to give or refuse permission in each individual case (III, 
2660-2662).


  In United States v. Helstoski, 42 U.S. 477 (1979), the Supreme Court 
discussed the ability of either an individual Member or the entire 
Congress to waive the protection of the Speech or Debate Clause. The 
Court found first, that the Member's conduct in testifying before a 
grand jury and voluntarily producing documentary evidence of legislative 
acts protected by the Clause did not waive its protection. Assuming, 
without deciding, that a Member could waive the Clause's protection 
against being prosecuted for a legislative act, the Court said that such 
a waiver could only be found after an explicit and unequivocal 
renunciation of its immunity, which was absent in this case. Second, 
passage of the official bribery statute, 18 U.S.C. 201, did not amount 
to an institutional waiver of the Speech or Debate Clause for individual 
Members. Again assuming without deciding whether Congress could 
constitutionally waive the Clause for individual Members, such a waiver 
could be shown only by an explicit and unequivocal expression of 
legislative intent, and there was no evidence of that in the legislative 
history of the statute.


[[Page 136]]



Sec. 302. Parliamentary law as to questioning a Member in 
another place for speech or debate.

  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, pp. 
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 parliamentarium, to exceed the bounds and limits of his 
place and duty. Com. p.




Sec. 303. Relation of the courts to parliamentary 
privilege.

  If  an offense 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.





Sec. 304. Breach of privilege to refuse to put a question which 
is in order.

  Privilege is in the power of the House, and is a restraint to the 
proceeding of inferior courts, but not 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 offenses 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. 1 Hats., 175-6; 5 Grey, 133.



  Where the Clerk, presiding during organization of the House, declined 
to put a question, a Member put the question from the floor (I, 67).


[[Page 137]]

under pretenses of treason, &c., to take any man from his service in the 
House, and so, as many, one after another, as would make the House what 
he pleaseth. Dec'l of the Com. on the King's declaring Sir John Hotham a 
traitor. 4 Rushw., 586. So, when a member stood indicted for felony, it 
was adjudged that he ought to remain of the House till conviction; for 
it may be any man's case, who is guiltless, to be accused and indicted 
of felony, or the like crime. 23 El., 1580; D'Ewes, 283, col. 1; Lex. 
Parl., 133.



Sec. 305. Parliamentary law of privilege as related to 
treason, felony, etc.

  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 privileged as to the mode of proceeding. The case 
is first to be laid before the House, that it may judge of the fact and 
of the ground of the accusation, and how far forth the manner of the 
trial may concern their privilege; otherwise it would be in the power of 
other branches of the government, and even of every private man, 


  Where Members of the House of Representatives have been arrested by 
the State authorities the cases have not been laid first before the 
House; but when the House has learned of the proceedings, it has 
investigated to ascertain if the crime charged was actually within the 
exceptions of the Constitution (III, 2673), and in one case where it 
found a Member imprisoned for an offense not within the exceptions it 
released him by the hands of its own officer (III, 2676).



Sec. 306. Practice as to Members indicted or 
convicted.

  The  House has not usually taken action in the infrequent 
instances where Members have been indicted for felony, and in one or two 
instances Members under indictment or pending appeal on conviction have 
been appointed to committees  (IV,  4479).  The  House  has,  however, 
adopted a resolution expressing the sense of the House that Members 
convicted of certain felonies should refrain from participation in 
committee business and from voting in the House until the presumption of 
innocence is reinstated or until re-elected to the House (see H. Res. 
128, Nov. 14, 1973, p. 36944), and that principle has been incorporated 
in the Code of Official Conduct (clause 10 of rule XLIII). A Senator 
after indictment was omitted from committees at his own request (IV, 
4479), and a Member who had been convicted in one case did not appear in 
the House during the Congress (IV, 4484, footnote). A Senator in one 
case withdrew from the Senate pending his trial (II, 1278), and on 
conviction resigned (II, 1282). In this case the Senate, after the 
conviction, took steps looking to action although an application for 
rehearing on appeal was pending (II, 1282).



[[Page 138]]

to affect the person of a member, it is the practice immediately to 
acquaint the House, that they may know the reasons for such a 
proceeding, and take such steps as they think proper. 2 Hats., 259. Of 
which see many examples. Ib., 256, 257, 258. But the communication is 
subsequent to the arrest. 1 Blackst., 167.


Sec. 307. Parliamentary law as to arrest of a 
Member.

  When  it is found necessary for the public service to put a Member 
under arrest, or when, on any public inquiry, matter comes out which may 
lead 




Sec. 308. A breach of privilege for one House to encroach 
or interfere as to the other.

  It  is highly expedient, says Hatsel, for 
the due preservation of the privileges of the separate branches of the 
legislature, that neither should encroach on the other, or interfere in 
any matter depending before them, so as to preclude, or even influence, 
that freedom of debate which is essential to a free council. They are, 
therefore, not to take notice of any bills or other matters depending, 
or of votes that have been given, or of speeches which have been held, 
by the members of either of the other branches of the legislature, until 
the same have been communicated to them in the usual parliamentary 
manner. 2 Hats., 252; 4 Inst., 15; Seld. Jud., 53.



[[Page 139]]

opinion of the King on any bill or proceeding depending in 
either House of Parliament, with a view to influence the votes of the 
members, 2 Hats., 251, 6.

* * * * *



Sec. 309. Relations of the Sovereign to the Parliament 
and its Members.

  Thus  the King's taking notice of the bill for suppressing 
soldiers, depending before the House; his proposing a provisional clause 
for a bill before it was presented to him by the two Houses; his 
expressing displeasure against some persons for matters moved in 
Parliament during the debate and preparation of a bill, were breaches of 
privilege, 2 Nalson, 743; and in 1783, December 17, it was declared a 
breach of fundamental privileges, &c., to report any opinion or 
pretended