[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 116th Congress]
[116th Congress]
[House Document 115-177]
[Jeffersons Manual of ParliamentaryPractice]
[Pages 130-150]
[From the U.S. Government Publishing Office, www.gpo.gov]
sec. iii--privilege
[[Page 131]]
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 |
| 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 |
| 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 |
| 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. |
| 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, |
| 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. 5503), 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(k)(1) of rule X'') of expenses to employ such special counsel (H. Res. 1420, Aug. 26, 1976, p. 27858; 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 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 to protect the interests of the House before the court (H. Res. 49, Jan. 29, 1981, p. 1304) or to submit briefs amicus curiae (H. Res. 639, Mar. 17, 2016, p. _ (see Apr. 18, 2016, p. _ for notification to the House of the filing of a brief pursuant to this authorization)). The House has authorized the Speaker to initiate or intervene in civil actions regarding the failure of the President or any other employee of the executive branch to implement a given law and authorized the Office of General Counsel to represent the House in such matters and to employ outside counsel (H. Res. 676, July 30, 2014, p. 13363), which authority was continued in the next Congress (sec. 3(f)(2), H. Res. 5, Jan. 6, 2015, p. _). The House has also authorized the Speaker to intervene in an existing case and appellate proceedings arising therefrom, and to intervene or appear in any other similar case in order to defend a particular law, and has authorized the Office of General Counsel to represent the House in such matters and to employ outside counsel (sec. 103(n), H. Res. 6, Jan. 3, 2019, p. _; title III, H. Res. 6, Jan. 9, 2019, p. _). The House 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. |
| 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. |
| 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 voted a challenge given to a Member of their House to |
| 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 |
| Sec. 295. Views of the court in Kilbourn's case. | In 1876 the arrest and imprisonment by the House of Hallet Kilbourn, a |
| Sec. 296. Decision of the court in Marshall v. Gordon. | 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 House in violating its privileges, honor, and dignity. He applied for habeas corpus. |
| 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 must therefore have a power to punish these disturbers of our peace and proceedings. * * * |
| 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 |
| 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 |
| 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. |
| 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. |
| 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 |
| Sec. 304. Breach of privilege to refuse to put a question which is in order. | 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. |
| 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., |
| 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, along with the principle that Members indicted for certain felonies should resign from committees and party caucus or conference leadership positions until the charges have been dismissed or reduced to less than a felony (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 pro |
| 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. |
| 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 |