[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 111th Congress]
[111st Congress]
[House Document 110-162]
[Jeffersons Manual of ParliamentaryPractice]
[Pages 128-147]
[From the U.S. Government Publishing Office, www.gpo.gov]


 

                           sec. iii--privilege


[[Page 129]]

traduced. And the period of time covered by privilege, before and after 
the session, with the practice of short prorogations under the 
connivance of the Crown, amounts in fact to a perpetual protection 
against the course of justice. In one instance, indeed, it has been 
relaxed by the 10 G. 3, c. 50, which permits judiciary proceedings to go 
on against them. That these privileges must be continually progressive, 
seems to result from their rejecting all definition of them; the 
doctrine being, that ``their dignity and 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



  For a modern discussion of privileges of Members of Parliament, see 
Report of Joint Committee on Parliamentary Privilege of the House of 
Commons (H.C. 214-1, Mar. 30, 1999).


[[Page 130]]

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 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



[[Page 131]]

emption from arrest, eundo, morando, et redeundo, the House of Commons 
themselves decided that ``a convenient time was to be understood.'' 
(1580,) 1 Hats., 99, 100. Nor is the law so strict in point of time as 
to require the party to set out immediately on his return, but allows 
him time to settle his private affairs, and to prepare for his journey; 
and does not even scan his road very nicely, nor forfeit his protection 
for a little deviation from that which is most direct; some necessity 
perhaps constraining him to it. 2 Stra., 986, 987.


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 ex





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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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 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, p. 964; Feb. 25, 
1954, p. 2281; July 1, 1955, p. 9818; Apr. 12, 1956, p. 6258; Apr. 24, 
1958, p. 7262; Apr. 29, 1958, p. 7636; Sept. 16, 1974, p. 31123; Jan. 
19, 1977, p. 1728), but on one occasion, in which 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 in which 
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, p. 80; H. Res. 1429, July 27, 1976, p. 24089). 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, p. 3046; 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

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in the district (of Maryland) where it was issued. In re Guthrie, 733 
F.2d 634 (4th Cir. 1984). If 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,


  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 thereof through the Clerk of the House 
(see, e.g., H. Res. 12, Jan. 3, 1973, p. 30). 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 in which 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 VIII, added as rule L 
in the 97th Congress (H. Res. 5, Jan. 5, 1981, pp. 98-113, see Sec. 697, 
infra).


[[Page 134]]

and authorizing the chair 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 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 also has 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), including an unreported resolution (adopted by 
special rule) regarding initiating or intervening in judicial 
enforcement of committee subpoenas (Feb. 14, 2008, p. _), which 
authority was continued and expanded in the next Congress (sec. 4(f), H. 
Res. 5, Jan. 6, 2009, p. _). For a discussion of the Office of General 
Counsel, which was established to provide legal assistance and 
representation to the House without regard to political affiliation and 
in consultation with the Bipartisan Legal Advisory Group, see clause 8 
of rule II, Sec. 670, infra.



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

  Although  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 resolutions authorizing the chair 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(j)(1) of rule 
X'') of expenses to employ such special counsel (H. Res. 1420, Aug. 26, 
1976, p. 1858; 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),





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 
other House that the Member have leave to attend, and the use of a 
subpoena is of doubtful propriety (III, 1794). However, in one case 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 135]]

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 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. 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



[[Page 136]]



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, because ``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, 19 U.S. (6 
Wheat.) 204, 226, 227 (1821)). In 1828 an assault on the President's 
secretary in the Capitol gave rise to a question of privilege that 
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 because 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 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).




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 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'' (Kilbourn v. Thompson, 103 U.S. 168, 189 (1880); 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 (1897)). The nature of the punishment that the House may 
inflict was discussed by the Court in Anderson's case (II, 1607; 
Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821)).



[[Page 137]]

the House in violating its privileges, honor, and dignity. He applied 
for habeas corpus.


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

  In the case of Marshall v. Gordon, 243 U.S. 521 (1917), the Court 
addressed the following situation:
   
Appellant, while United States Attorney for the Southern District of New 
York, conducted a grand jury investigation that led to the indictment of 
a Member of the House. 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 chair, 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 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.

  No express power to punish for contempt was granted to the House 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 that 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 distinction between 
legislative, executive, and judicial power, and repugnant to limitations 
that 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 that in 
and of themselves inherently prevent or obstruct the discharge of 
legislative duty and to compel the doing of those things that are 
essential to the performance of the legislative functions. As pointed 
out in Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821), this implied 
power in its exercise is limited to imprisonment during the session of 
the body affected by the contempt.

  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.


[[Page 138]]

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.
  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


  (See also McGrain v. Daugherty, 273 U.S. 135 (1927); Sinclair v. 
United States, 279 U.S. 263 (1929); Jurney v. MacCracken, 294 U.S. 125 
(1935); Quinn v. United States, 349 U.S. 155 (1955); Groppi v. Leslie, 
404 U.S. 496 (1972).)


[[Page 139]]

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 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



[[Page 140]]

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 
President; 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 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



[[Page 141]]

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.



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


  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'' (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 involves the privileges of the House and may be offered from 
the floor as privileged if offered by direction of the committee 
reporting the resolution (e.g., Oct. 27, 2000, p. 25200). A committee 
report to accompany such resolution may therefore be presented to the 
House without regard to the three-day availability requirement for other 
reports (see clause 4 of rule XIII; July 13, 1971, p. 24720). A 
resolution with two resolving 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); as is a resolution with one resolving clause certifying 
contemptuous conduct of several individuals (Oct. 27, 2000, p. 25200; 
contrast, Deschler-Brown, ch. 30, Sec. 49.1). A contempt resolution may 
be withdrawn as a matter of right before action thereon (Oct. 27, 2000, 
p. 25200).


[[Page 142]]

been entered into between the committee and the executive branch for 
access by the committee to the documents that Anne Gorsuch had failed to 
submit and that were the subject of the contempt citation (where the 
contempt had not yet been prosecuted) (Aug. 3, 1983, p. 22692). In other 
cases in which compliance had subsequently been attained 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, 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 the 106th 
Congress the House considered a resolution directing the Speaker to 
certify to the United States Attorney the refusal of three individuals 
to obey a subpoena duces tecum and to answer certain questions while 
appearing under subpoena before a subcommittee, which resolution was 
withdrawn before action thereon (H. Res. 657, Oct. 27, 2000, p. 25217). 
In the 110th Congress, the House adopted (by special rule) a resolution 
directing the Speaker to certify to the United States Attorney the 
refusal of White House Chief of Staff to produce douments to a 
committee, and former White House Counsel to appear, testify, and 
produce documents to a subcommittee, each as directed by subpoena (Feb. 
14, 2008, p. _).
  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 (Dec. 16, 1982, p. 31754). In the following 
Congress, 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 had

  A resolution laying on the table a message from the President 
containing certain averments inveighing disrespect toward Members of 
Congress was considered as a question of the privileges of the House as 
a breach of privilege in a formal communication to the House (VI, 330).-




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 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.


  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).


[[Page 143]]

effective only when sworn (e.g., H. Res. 26, 27; Jan. 6, 1983, p. 132). 
In one case, when a Member did not appear to take the oath, the Speaker 
with the consent of the House appointed another Member to the committee 
in his 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 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; Jan. 6, 1999, p. 42); 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.

  It is recognized in the practice of the House that a Member may be 
named to a committee before being 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



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.


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

  Although the privilege of Members of the House 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).


[[Page 144]]

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. The Speech or Debate clause is not an impediment 
to the enforcement within the House of the rule prohibiting 
personalities in debate (clause 1 of rule XVII, May 25, 1995, p. 14436).

  In United States v. Helstoski, 442 U.S. 477 (1979), the Supreme Court 
discussed the ability of either an individual Member or the entire 
Congress



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.



[[Page 145]]

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.

  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


  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 146]]




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, 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.


  Where Members of the House 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 in which 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 in which 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 XXIII). 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). After 
conviction but before the Senator's resignation, and while an appeal for 
rehearing was pending, the Senate continued its investigation (II, 
1282).




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 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.



[[Page 147]]

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.


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







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 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.
* * * * *