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-power to punish offenders, to impose disciplinary regulations upon its members, or to enforce obedience to its commands. These powers are so essential to the authority of a legislative assembly, that it cannot well exist without them; and they are consequently to be regarded as belonging to every such assembly as a necessary incident. The privileges and powers of a legislative assembly, are therefore so far connected together, that the latter are the necessary complement of the former. a

At an early day, in England, the House of Commons, under the claim of privilege, had so far arrogated to themselves power, as to exercise exclusive jurisdiction in all cases coming directly before them; and even in cases in which they were only incidentally concerned, they denied to all other tribunals, the right to question their power, not only, but they claimed the right to determine for themselves, what the law of privilege actually was, and, to declare it from time to time to be, whatever their will and pleasure, and their claimed prerogative, dictated it to be. But this arrogant pretence was carried to such an extent, and the usurpation became so odious, that both the judicial, and legislative authorities, were called in, to correct, restrain, modify, and limit this unauthorized abuse of assumed power. So that, since the statutes of 13 William III, and 10 George III, which abridged the powers and privileges of parliament, the courts have taken notice of, declare, and decide, the extent of these powers and privileges, whenever they arise in court; though without prejudice to the right of the house itself to decide upon the question in an equally conclusive manner, if the case comes within their jurisdiction.

In this country, so far as privileges of legislative bodies, or of the individual members thereof are concerned, they are believed to be substantially the same, as now modified they exist in England; but the powers of legislative bodies, and in some of the states their privileges, rest upon constitutional, or statute provisions. Therefore, though a legislative assembly may be said to judge exclusively of its privileges, it is only so to certain intents and purposes. b

In England, since the year 1700, and statute of 10 George III, in 1770, the powers and privileges of the two houses, have been so well

a Cushing on Legislative Assemblies, § 533. b Coffin v. Coffin, 4 Mass. 32

defined, regulated and limited by statute direction, and judicial construction, that they are now as well defined, established and known, as any portions of the common law; and this common law, before the American revolution, was adopted and admitted in this country, as controlling and applicable to the colonial and provincial legislatures. Since the revolution, portions of this common law has been adopted into the national; and also into some of the state constitutions; in other states, it is regulated and limited in their statutes; with such omissions and restrictions, additions and modifications, as the new and changed circumstances, and more free and liberal institutions have made necessary to a new and improved order of things.

In some of these constitutions and statutes, certain powers and privileges are enumerated in affirmative language; sometimes accompanied by a general provision covering all other necessary powers and privileges; in some, negative words are used in reference to particular powers; in some, and especially in the state of New York, there is an express provision in the statute, giving certain privileges to members of the legislature, which, by legal construction, excludes all other privileges, so far as regards third persons, and as to all persons except individual members of the body themselves, and to the collective body of the assembly; and as to their powers, if not expressed, they are such well known principles of parliamentary law as are known to themselves, to the courts, and to all other persons. An uncontrolled power in a legislative assembly, equally here, as in England, would be dangerous to the liberties of the citizen.

Cases can well be supposed, perhaps may have existed, where an uncontrolled power in a legislative assembly may work great injustice. Such cases, however, ought to be the exceptions. Justice Story, in his work on the constitution, a in regard to this point, has wisely said, that "Public bodies, like private persons, are occasionally under the dominion of strong passions and excitements; impatient, irritable and impetuous. The habit of acting together, produces a strong tendency to what, for the want of a better word, may be called the corporation spirit, or what is so happily expressed in a foreign phrase, l'esprit du corps. Certain popular leaders a Story on Const. § 550.

often acquire an extraordinary ascendancy over the body, by their talents, their eloquence, their intrigues, or their cunning. Measures are often introduced in a hurry, and debated with little care, and examined with less caution. The very restlessness of many minds, produces an impossibility of debating with much deliberation, when a measure has a plausible aspect, and enjoys a momentary favor. Nor is it infrequent, to overlook well founded objections to a measure, not only because the advocates of it have little desire to bring them in review, but because the opponents are often seduced into a credulous silence. A legislative body, is not ordinarily apt to mistrust its own powers, and far less the temperate exercise of those powers. As it prescribes its own rules for its own deliberations, it easily relaxes them whenever any pressure is made for an immediate decision. If it feels no check but its own will, it rarely has the firmness to insist upon holding a question long enough under its own view, to see and mark it in all its bearings and relations, &c."

Among the subjects or offences which a legislative assembly may adjudge to be a contempt, and for which they may inflict punishment, and thus interfere with personal liberty of the citizen, is that of a breach of privilege of the house, or of one of its members. It is highly important for preservation of order, and for the protection of legislative bodies in the due and proper discharge of their duties for the state, that they, and each of its component members, should possess freedom of action, and be fully protected in their persons; that they should not be withdrawn or prevented from attendance by causes of a less important character; but, that for a certain time, at least, they should be excused from obeying any other call, not so immediately necessary for the services of the state; and hence it has always been admitted, that the members of a legislative assembly, during their service and attendance as such, are entitled to be exempted from several duties, and not considered as liable to some legal processes to which other citizens are by law obliged to pay obedience. a

They are entitled by acknowledged parliamentary law, not only to the right of free attendance, but to be protected in the free enjoyment of the right of speech, debate, and determination in refer

a Cushing's Legislative Assembly, § 529.

ence to all subjects, upon which they may rightfully be called upon to deliberate and act; and it is established as a general principle of parliamentary law, that no member of a legislative body can be questioned or punished by any other court or authority, but only by the assembly itself of which he is a member, for anything said or done by him in that capacity. These rights and immunities, belong not only to the member himself directly, but also indirectly to the assembly itself. But since the day of the English statutes above referred to, neither house of the British parliament have ever gone the length of claiming an exemption from the operation of criminal laws; or of attempting to protect themselves from any prosecution for treason, felony, or breach of peace; and down as late as 1831, Lord Brougham declared, a "That the true ground to use in regard to the law of privilege, is, that it never extends to protect from punishment, though it may extend to protect from civil process, and that it never extends to protect from civil process when the object of the process is the delivery up of a person wrongfully detained from a party, and that it is upon this ground, that the jurisdiction of the courts can safely and securely rest."

It can hardly be warranted in this work, to trace the various discrepancies and differences existing in constitutional provisions and statutes relating to parliamentary law in the several states of the Union. To do it justice, it would alone fill a volume.

In this country, though the same general principles of parliamentary law prevail as in England from whence we derived it, yet what are called the law of privileges of legislative assemblies, varies in different states of the Union, and is different between the assemblies of the several states, and that of the national assembly. There is no such thing, in this country, as a settled and uniform law of privilege of members to legislative assemblies. In the national legislature, the law of privilege is secured, and defined, by the express provisions of the national constitution. In some of the independent states it is secured and defined in their state constitutions; in others only by statute. Among these, the law of privilege is not expressed in language entirely uniform. In the state of New York the privilege of members is conferred a Mr Long, Wellesley's case, 2 Rals. & 3 Mylne 673.

by statute in the following words: a "Every member of the legislature shall be privileged from arrest on civil process, during his attendance at the session of the house to which he shall belong, except on process issued in any suit brought against him for any forfeiture, misdemeanor, or breach of trust in any office or place of public trust held by him. He shall enjoy the like privilege for the space of fourteen days previous to such session, and also while going and returning from such session, provided such time do not exceed fourteen days; and also during any adjournments that do not exceed fourteen days; and also while absent from the session by leave of the house. These privileges, also extend to officers of the house while in actual attendance, and each house has the power to punish as a contempt, and by imprisonment, a breach of its privileges, or of the privileges of its members, the arresting of a member, and for other disorderly conduct against its rules or orders therein specified."

This power of judging, and of inflicting punishment for an adjudged contempt, or breach of privilege committed against themselves, and judged of by themselves, however dangerous in theory, inasmuch as these bodies, thus become their own accusers, witnesses and judges, is found by experience, to have been subject to very little abuse. Their own self-respect, and a due respect to public opinion, public censure, and public criticism to which they are amenable, it is believed, will generally restrain them from unreasonable acts of injustice to the individual citizen. Perhaps the only danger to be apprehended, is, in times of high political excitement, when bodies of this kind, controlled by popular and unprincipled leaders, excite a spirit, which Judge Story calls, l'esprit du corps, against some supposed violator of privileges or dignity of the body.

A more real and serious danger to the integrity of the government, and to a co-ordinate branch of the sovereignty of the government, is when the legislative assembly, in either body of it, shall attempt to exercise this seemingly unlimited power of punishment for contempts, upon the representatives of another co-ordinate and coextensive department of the sovereign power of the state.

a 1 Rev. Stat. 154.

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