of provision. Blackstone said it covered forty days before and forty after the session. Bradley, C. J., in an exhaustive examination of the subject in Hoppin v. Jenckes, 8 R.I. 453 (1867), concluded the weight of authority overbalanced Blackstone and that by the law of England "it was for a reasonable or convenient time, and not for a period of forty days and more." Such the court held to be the test that should be applied in the case of a member of Congress. Rhode Island itself allows privilege only during the session and two days before and after. More than half the States with constitutional provisions on the subject allow privilege only during the session. A dozen also allow fifteen days before and after, with some variations, and a few have exceptional provisions of no significance, unless it be in the case of five States that seem to shield the legislator throughout his term of office. The Wisconsin Constitution says: "Members of the Legislature shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest." California, Washington, and Arizona use the same. words. Michigan says: "Senators and Representatives shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest." Inasmuch as technically membership continues from the time of taking the oath until the next Legislature convenes (there being always the chance of a special session), in these States members would appear to be immune whether the Legislature is sitting or not.

Although in olden times Parliament enjoyed the invention of humiliating forms of punishment for those who hurt its pride or interfered with its members, nothing but imprisonment, save an occasional fine, has of late years been inflicted by lawmaking bodies. Question has arisen over the length of time of imprisonment. The English conclusion, generally accepted here, has been that the offender may not be kept in confinement beyond the term of the House sentencing him. The reason for this, as given in the case of Anderson v. Dunn (6 Wheaton, 204), is that "the existence of the power that imprisons is indispensable to its continuance." In the next breath the Court said that "the legislative power continues perpetual," and most laymen would suppose this met the condition the Court had just imposed, but it went on to identify "the legislative body" with "the legislative power," by saying: "The legislative body ceases to exist on the moment of its adjournment or periodical

dissolution. It follows that imprisonment must terminate with the adjournment." The three months to which Patrick Woods was sentenced by the national House was a specific sentence unusual. In that case the time of sentence expired before the term of the Congress imposing it.

The privilege of exemption from arrest is to-day of far less practical consequence than of old, as arrest or seizure of the person is now rarely authorized except for crime, and all crimes of a serious nature are included within the description of treason, felony, or breach of the peace. Yet occasionally it becomes of importance, as for example in the case of Justice Platt Porter of the New York Supreme Court who in 1870 was summoned to the bar of the Assembly to answer for an alleged breach of privilege in causing an attachment to be issued against Henry Ray, a member, and requiring him to appear before the grand jury. Mr. Ray had been subpoenaed to attend as a witness before the grand jury, but had not obeyed, whereupon the attachment was issued, and he was compelled to attend the grand jury, and give evidence in a pending criminal proceeding. This was deemed by the Assembly a breach of the privilege of its members. The Judge appeared and presented his defense, protesting, however, against the power of the Assembly to inquire into his judicial acts, and saying he came as an individual, not as a judge to defend his judicial action.

He characterized the act of the Assembly as an "aggressive assumption of power," and said that if one department of this government possesses the power to command obedience of another of co-extensive and equal power-if the legislative can usurp the authority to hold in awe or punish the judicial — then indeed have we a despotism, and not a government of freedom. "If for an official act, if for a judicial act of a judge, this House possesses the power to punish, even for a mistaken judgment, where is the boasted protection to an independent judiciary? He denied that Mr. Ray had been arrested on civil process, averring it was criminal process, issued on behalf of the people to enforce the criminal law.

In the end the Assembly resolved that he was mistaken as to the privileges of the House, and that he did commit a breach of privilege; "but this House do not believe that any intention or desire to interfere with the independence or dignity of the House actuated him in the performance of that which he deemed

his official duty." This closed the incident as far as he was concerned. What doubt there may have been as to the privilege was removed by a statute of 1892, reading: "A member of the Legislature shall be privileged from arrest in a civil action or proceeding other than for a forfeiture or breach of trust in public office or employment, while attending upon its session, or for fourteen days before and after each session, or while absent for not more than fourteen days during the session, with the leave of the House of which he is a member. An officer of either House shall be privileged from arrest in such a civil action or proceeding while in actual attendance upon the House. Either House shall have the power to discharge from arrest any of its members or officers arrested in violation of his privilege from arrest." 1

A more recent case was that of Williamson, a member of Congress, who in 1905 was found guilty of conspiring to commit the crime of subornation of perjury in proceedings for the purchase of public land. He protested against sentence on the ground that he would thereby be deprived of his constitutional right to go to, attend at, and return from the ensuing session of Congress. Having been sentenced to pay a fine and to imprisonment for ten months, he took the matter to the Supreme Court of the United States, where Justice White, for the Court, held that the words "treason, felony, and breach of the peace" should be construed in the same sense as those words were commonly used and understood in England as applied to parliamentary privilege, and as excluding from the privilege all arrests and prosecutions for criminal offenses, and confining the privilege to arrests in civil cases. On other grounds the decision of the lower court was reversed.2

It is to be borne in mind that the privilege of freedom from arrest is not primarily for the benefit of the member, but is grounded on considerations of public interest. As Jefferson said in his Manual, "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 of no 1 C. Z. Lincoln, Const. Hist. of New York, iv, 607, 612. ? Williamson v. United States, 207 U.S. 425 (1908).

comparison." Now that the constituency of a Representative in Congress is five or six times as large as when Jefferson wrote, the loss he described has become so much the more serious, if numbers determine, but of course the principle is the same whatever the size of the constituency. It was for like reason of public interest that in 1787 the Massachusetts General Court resolved "that the right of granting writs of protection to persons who have business pending at the General Court, and whose attendance there, on examination by Committee or otherwise, appears to be necessary, is a right incident to either House," and that either House had the right to order its Clerk to issue such writ, "in the same way as heretofore has been the usual custom." Such a custom has long since passed into desuetude, but doubtless could be revived should occasion arise. Indeed it is safe to say that lawmaking bodies would be sustained in any reasonable assertion of privilege evidently necessary to the proper performance of their duties.

The privilege extends to officers of Congress. In 1800 a spectator, one James Lane, who in the gallery applauded by clapping his hands, was by order of the Speaker taken into custody by the Sergeant-at-Arms and detained for two hours. Lane got a warrant for the arrest of the Sergeant-at-Arms, whereupon it was resolved that the arrest and confinement of an officer of the House of Representatives for an act performed by him in its service and in obedience to its orders must be deemed a high breach of privilege.

CHAPTER XXI

CONTEMPT

THERE would be advantage if "contempt" and "privilege" could be discriminated sharply. It would be well to confine "privilege" to the rights of individual members and to use "contempt" for an invasion of the collective rights of a legislative body. However, the words have been so often used by investigating committees and in findings as if they had something in common, and they have been so confounded in Constitutions and statutes, that perhaps scientific precision is now impracticable. This may be my excuse for having as a matter of convenience treated together individual criticism and collective criticism. Yet it may in general be well to consider contempt from the collective point of view, as willful disobedience of the orders of a legislative body, or disorderly or contumacious behavior in its presence.

Whether the power to punish for contempt inheres in every legislative body, has been the subject of much discussion. There is no question whatever that Parliament has the power. In Burdett v. Abbott, 51 Geo. III, 1811 (14 East, 1), and in Sheriff's of Middlesex Case, 3 Vict., 1840 (11 Ad. & Ell., 273; 39 Eng. C.L.), it was held that either House may commit for contempt, and in the latter case that no court will, inquire into the grounds of such commitment. Sir Erskine May says that since 1547 the power of commitment by the House of Commons has been exercised more than a thousand times. But is it clear that other legislative bodies may commit without specific authorization by Constitution or statute?

In the leading English case of Kielly v. Carson (4 Moore P.C. 63), decided in 1841, the question rose by reason of the fact that the offense had been committed against a provincial legislature. Kielly was said to have used reproaches, in gross and threatening language, toward John Kent, one of the members of the House of Assembly of Newfoundland. He was brought before the House, where he added to his offense by boisterous and violent language, and was finally committed to