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In the whole history of this government, and of the general harmonious workings of its system in the division of its sovereignty into the three distinct and co-ordinate departments of its power, the executive, the legislative, and the judicial,—each being independent of the other within its proper sphere of action, and each, by our theory of government, having no higher tribunal to call them to account for their independent action; only a single case has occurred, in the nation or in any state, in which a conflict has arisen between them, by which, one of these co-ordinate departments has attempted to coerce another, to wit: one branch of the legislative body, the assembly of the state of New York, attempting to hold the judicial department of the same state, responsible for a claimed breach of privilege of the assembly, in issuing process of arrest by attachment against a member of assembly, for contempt, in the disobedience to a subpoena issued out of a criminal court of original jurisdiction of the said state.
The case was novel, and unprecedented. It was the occasion of excitement and interest. It was discussed on the part of the assembly by a labored report by a committee of the house of assembly, in behalf of that department of the government in which the breach of privilege was claimed, and the right to inflict punishment asserted, as against the member of the court whose action was complained of. The judge appeared on the day appointed, and argued the question in defence of his co-ordinate department of the government. The result, settled no parliamentary law, or question of breach of privilege; its discussion, nevertheless presented the different views of these co-ordinate departments of the government, as to their respective powers and privileges, in such a manner as to make the report of the assembly and the argument of the judge in defence of the judiciary, a matter sufficiently important to be presented to the profession, and to the co-ordinate departments of the government for consideration, whenever it is brought in question there.
IN THE MATTER OF HON. PLATT POTTER, ARRAIGNED AT THE BAR OF
THE ASSEMBLY, FOR ALLEGED BREACH OF PRIVILEGE.
On the 21st day of January, 1870, a subpoena, requiring one Henry Ray to appear and testify as a witness in a certain criminal proceeding pending before the grand jury, at the Saratoga Oyer and Terminer, was issued under the authority of the court, the Hon. Platt Potter, a justice of the Supreme Court, presiding, and was duly served on Mr. Ray, at the city of Albany. He declined to obey its mandate, on the ground of his privilege as a member of the assembly of the state of New York. Winsor B. French, the district attorney of Saratoga county, thereupon applied to the court for, and procured, an attachment against Mr. Ray for such disobedience, upon which the latter was arrested, taken before the grand jury, and required to testify on such proceeding. The arrest of Mr. Ray created some excitement in the assembly, of which he was a member, as it was claimed to be a flagrant violation of the privilege of that body. A committee was thereupon appointed, to investigate the matter of the arrest. Subsequently the committee made a report, in which, after setting forth the facts of the arrest, and of the examination before them of Justice Potter and others, relative thereto, they proceeded as follows:
"The question therefore arises, and the only question which your committee is called upon to consider is, whether or not Mr. Ray was exempt from arrest under the process issued in this case.
The privilege of legislative bodies is as old as the common law, from which we have gathered our liberties, and by which the rights of the people have been and are to be protected. It is older than Magna Charta, older than the writ of habeas corpus, older than the courts either of law or equity, and from the parliament of a nation and legislatures of the states have come those laws and rules of practice which are calculated to secure to the citizen all the benefits and privileges conferred by the government under which he may live. Your committee, in the examination of the question, have found that, in this country, the violations of parliamentary privilege, either of members of congress or of members of state legislatures, have been rare. In the earlier history of the British parliament, when the house of commons, for long years, struggled against the prerogative of the crown, against the overbearing aris
tocracy of the lords, and against the assumption of power on the part of the courts, which were for centuries the mere servants and tools of the crown, we find many instances where the commons secured and maintained the privileges of members of that body.
In the case of Shirley v. Fagg, as far back as 1675, Mr. Fagg, a member of the house of commons, was summoned on a process, issuing from the court of chancery, to appear before the bar of the house of lords and plead to an appeal. The house of commons held this to be an unquestioned violation of its privilege, and passed, on the 18th of May, 1675, the following resolution :
Resolved, That it is the undoubtful right of this house that none of their members be summoned to attend the house of lords during the session or privileges of the parliament.' (3 Grey, 170.)
On the 20th of May, 1675, Sir Thomas Leigh, from a committee appointed by the house of commons, gave the following, among other reasons, why a member of the commons was not compelled to appear before the bar of the house of lords, and this, it will be borne in mind, was when the house of lords was sitting as a court of appeals of the British realm: 'The privilege of a member is the privilege of the house, and is a restraint to the proceedings of inferior courts, but not to the house itself;' thus implying that the house whose privilege has been violated is the only body possessing the right to pass upon the question whether such privilege has or has not been violated. (2 Grey, 399.) It is laid down as a principle in parliamentary law, in England, that the privilege of parliament extends to all cases except three-treason, felony and breach of the peace. (4 Inst. 25; Lex Parl. 381.)
Sir William Blackstone lays down the following as the privileges of parliament: 1st. They are at all times exempted from question elsewhere for anything said in their own house during the time of privilege. 2d. Neither a member himself, his wife or servants, for any matter of their own, may be arrested on mesne process, in any civil suit. 3d. Nor be detained under execution, though levied before the 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 character traduced.' (1 Blackstone, 163, 164.)
Mr. Thomas Jefferson, in his note upon this quotation of Blackstone, says: "The constitution of the United States has 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.'
Under the general authority to make all laws necessary and proper for carrying into execution the powers given them, they may provide by law the details which may be necessary for giving full effect to the enjoyment of this privilege.' He goes on and says further: The act of arrest is void ab initio. (2 Strange, 989.) The member arrested may be discharged on motion. 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. 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 its proceedings stayed or corrected.' He says further: This privilege from arrest, privileges of course against all process, the disobedience to which is punishable by an attachment of the person, (the very case in point,) 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.' He goes on to say: 'When a representative is withdrawn from his seat by summons, the people whom he represents lose their voice in the debate and vote, as they do in his voluntary absence. When a senator is withdrawn by summons, his state loses half its voice in debate and vote, as it does in his voluntary absence. The enormous disparity of evil admits of no comparison.'
In December, 1795, the house of representatives of the United States committed two persons, of the names of Randall and Whitney, for attempting to corrupt the integrity of certain members, which they considered as a contempt and breach of the privilege of the house; and the facts being proved, Whitney was detained in confinement a fortnight and Randall three weeks, and was repri
manded by the speaker. The editor of the Aurora, of Philadelphia, William Duane, was, for defamatory articles, declared to be guilty of breach of the privilege of the senate.
In the debate in the Duane case, Mr. Senator Pinckney, who opposed the proceedings, after citing the privileges of congress, says that each house has power to enforce complete order and decorum within their own chamber; to clear the galleries if an audience is unruly, and to punish their own members; to take care that no arrests except for treason, felony or breach of the peace, shall keep their members from their duty.
There can be no doubt but that the legislature of the state of New York has as extensive, if not more extensive, privileges than the congress of the United States. It is the successor of the colonial legislature, which derived its privileges from the parliamentary law of England, and is not restricted in its privileges by the constitution of the state. Mr. Pinckney, in the speech quoted above, seemed to intimate that the privileges of state legislatures were more in their discretion than those of congress.
The constitution of this state, of 1777, declares that the assembly should enjoy the same privileges, and do business in like manner as the assembly of the colony of New York of right formerly did.
It is admitted that the parliament of England, and the courts of law, have cognizance of contempts, and are authorized to punish for such contempts. It is also admitted 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 congress has no natural or necessary power, nor any powers but such as are given to it by the constitution. Therefore, the constitution expressly and directly exempts members of congress from personal arrest, and, therefore, with congress no further law is necessary, the constitution itself being the law; still, under the provision of the constitution, which confers upon congress the right to make all laws necessary and proper for carrying into execution the powers vested by the constitution in them, it would be within their power to establish any regulation of law in regard to the breach of their privilege, which they might desire. It is laid down