purpose of putting an end to the session, are in fact continuations and not terminations of it.1 604. But though a member in the exercise of the functions of his office may speak, write, or vote, in any manner that he deems proper, and may consequently give utterance, with impunity, to what would subject a private person to a prosecution for libel or slander; yet he will not therefore be justified in printing and publishing what he has spoken, if it contains matter injurious to the character of an individual; 2 not even if the publication is intended to correct a misrepresentation contained in a report of his speech previously published without his authority or sanction.3 SECTION IV. PRIVILEGE OF FRANKING. 605. The last personal privilege, to be noticed, is that of sending and receiving letters and other communications of a similar nature, through the public post-office, free of postage; a privilege, which has been enjoyed by members of parliament in England, for many years, at first by the indulgence of the crown, but now by law. In this country, the franking privilege is usually conferred, by law, upon the members, and certain of the officers, of both branches of the congress of the United States, upon the delegates of territories in the lower branch, and upon such other persons, as congress may choose to compliment in that manner;5 that body having exclusive jurisdiction, by the constitution, to establish postoffices and post-roads. It is a breach of privilege to counterfeit or forge a frank. When a member or officer desires to make use of this privilege, he writes his name and the title of his office on the back of the letter, over the superscription, sometimes with the addition of the word "free." SECTION V. PERSONAL DISABILITIES INCIDENT TO MEMBERSHIP. 606. It seems proper, by way of supplement to the subject of the personal privileges of members, to take some notice of the disabilities to which they are subjected by the federal and by many 1 Appendix, X. lege. The franking privilege in England, it is 2 The King v. Lord Abingdon, Espinasse's believed, has lately been abolished by law, Reports, 226. except in regard to sending certain parlia 3 The King v. Creevy, Maule & Selwyn's mentary papers through the post-office during Reports, I. 273. 4 See Dwarris, I. 107, and Parl. Hist. XXIII. 56, for the history of the origin of this privi the sitting of parliament. See May, 398. 5 Gordon's Digest, section 990. of the State constitutions, as a consequence of their official char acter. 607. The constitution of the United States provides, that no member during the time for which he is elected shall be appointed to any civil office, under the authority of the United States, which shall have been created, or the emoluments of which shall have been increased, during such time. A similar provision is inserted in the constitutions of Pennsylvania, Delaware, New Jersey, and Maryland; and also in those of Maine, Virginia, Alabama, Indiana, Louisiana, Kentucky, and Missouri, with the addition of an exception of such offices as may be filled by elections by the people. In Kentucky and Louisiana, Mississippi and Ohio, the same disability is extended for one year beyond the term of office.1 CHAPTER THIRD. OF THE COLLECTIVE OR AGGREGATE PRIVILEGES OF A LEGISLA TIVE ASSEMBLY. 608. Where the collective privileges of a legislative assembly are invaded, the means of enforcing them are various, according to circumstances. If private persons are the offenders, they may be punished for a contempt; and so in some cases, where they have an official character. But where the parties concerned are beyond the reach of the assembly, it can do nothing more than to protest against the breach of privilege, and, also, if it thinks proper, suspend all its own functions, until the cause has been removed, or it has received satisfaction. 609. Where the breach of privilege is also an offence against the laws, and cognizable by the ordinary tribunals, as by assaulting a member, or libelling the assembly, there may be a prosecution at 1 See Story's Commentaries on the Constitution, II. § 330, 331, 332, for some interesting and judicious observations on the subject of these disabilities of members. The author concludes with the following remark: "The history of our State governments, (to go no further) will scarcely be thought by any in genuous mind to afford any proofs, that the absence of such a disqualification has rendered State legislation less pure, or less intelligent; or that the existence of such a disqualification would have retarded one rash measure, or introduced one salutary scruple into the elements of a popular or party strife." law, as well as a proceeding and punishment by the assembly itself. 610. The rights and immunities, incident to or conferred upon a legislative assembly, considered as an aggregate body, are founded in the same general reason, upon which those of the individual members rest, namely, to enable the assembly to perform the functions with which it is invested, in a free, intelligent, and impartial manner. 611. The privileges of this kind, which belong to each branch of a legislative assembly, may be classified and arranged under the following heads, namely: 1. To judge of the returns, elections, and qualifications of its members: 2. To choose its own officers and remove them at pleasure: 3. To establish its own rules of proceeding: 4. To have the attendance and service of its members: 5. To be secret in its proceedings and debates: 6. To preserve its own honor, dignity, purity, and efficiency, by the expulsion of an unworthy, or the discharge of an incompetent, member: 7. To protect itself and its members from personal violence: 8. To protect itself and its members from libellous and slanderous attacks: 9. To protect itself and its members from corruption : 10. To require information touching public affairs, from the public officers: 11. To require the opinion of the judges and other law-officers, on important occasions: 12. To investigate, by the testimony of witnesses or otherwise, any subject or matter, in reference to which it has power to act; and, consequently, to protect parties, witnesses, and counsel, in their attendance, when summoned, or having occasion to attend for that purpose: 13. To be free from all interference of the other coördinate branch, and of the executive and judiciary departments, in its proceedings on any matter depending before it. 1, 2. Elections; Officers. 612. It is not only a principle of parliamentary law, but is declared also in the greater number of our constitutions, that every legislative assembly is to be the sole and exclusive judge of the returns, elections, and qualifications of its own members. The same thing may be said of the choice and removal of its own officers. These subjects have already been sufficiently treated of elsewhere. 3. Rules of Proceeding. 613. In addition to what has already been incidentally stated concerning the rules of proceeding which are in use in our legislative assemblies, it may be remarked here, that, in all the American constitutions, except those of North Carolina and Georgia, it is expressly provided, that each assembly shall determine the rules of its proceeding. Two important differences, between the two houses of the British parliament, and our legislative assemblies, in respect to the rules by which they are respectively governed, seem to result from the establishment of this principle. The first is, that the system of standing orders, by which one house of parliament binds its successors, does not prevail here at all. The other is, that each assembly, until it adopts rules and orders for itself, (and it usually adopts those of its predecessors,) is without any other rules for its government, than those which result from the common parliamentary law.1 614. The principle, that each branch of a legislative assembly has a right to determine its own rules, is deemed so important that where it is inserted in the constitution of a State, it has been doubted, whether it was competent for the legislature of such State, by law, to provide rules for the government of its respective branches, which should bind them and supersede their authority to make rules for themselves.2 4. Attendance and Service of its Members. 615. This subject, so far as relates to the right and duty of members to attend, has been already considered; and it has been seen, that members are privileged, to a certain extent, against all detentions by means of legal process, by which they would be withdrawn from the performance of their duty in this respect. But this personal privilege is subordinate to that of the assembly itself; it cannot be waived without the consent of the assembly; and, when a member is improperly detained, not only may he himself insist 1 The subject of rules and orders is treated 2 Cong. Globe, XXI. 1372, 1373. of at length in the fourth part. upon his privilege, but the assembly of which he is a member may send for and set him at liberty, by its own officers, and may also punish as for a contempt all persons privy to or engaged in such detention. 616. It seems formerly in England to have been considered the privilege of the houses of lords and commons, to be previously informed of the case of a member, about to be arrested for a cause to which his privilege did not extend, before the arrest took place, in order that the house might judge of the fact and of the grounds of the accusation, and how far the manner of the trial might concern their privileges; for the reason, that otherwise "it would be in the power of other branches of the government, and even of every private man, under pretences of treason, etc., to take any man from his service in the house, and so as many, one after another, as would make the house what he pleased;"1 and the propriety of this manner of proceeding has been repeatedly recognized by the several temporary statutes for suspending the habeas corpus act; by which it is provided that no member of either house shall be detained, until the matter of which he stands suspected shall have been first communicated to the house of which he is a member, and the consent thereof obtained for his commitment or detention.2 617. But, since the revolution, however, whenever the king or any of his ministers, or persons employed by him, finds it necessary for the public service to put a member of the house of commons under arrest; or that in any public inquiry, matter comes out, which may tend to affect the person of a member, or to require the seizure of his papers; it has been the uniform practice immediately to acquaint the house of commons, that they may know the reasons for such proceeding, and take such steps as they may think proper; and Hatsell adds, that as there is no privilege, of which the house of commons has been or ought to be more jealous, than the security of the persons of the members, "that they shall be under no undue restraint from being able to attend their duty in parliament," it is highly expedient, that whenever the public necessity appears to the ministers of the crown to justify any breach of this privilege, they should as soon as possible acquaint the house with the steps they have taken, and the grounds and reasons which induced them thereto.3 618. From the uniform practice to the contrary, it appears that 1 Jefferson's Manual, § 3. 2 Dwarris, 1, 9, 8; Blackstone's Comm. I. 167; Hammond, 72. 3 Hatsell, II. 365. |