Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 107th Congress-Section III.Privilege

[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 107th Congress]
[107th Congress]
[House Document 106-320]
[Jeffersons Manual of ParliamentaryPractice]
[Pages 124-143]
[From the U.S. Government Printing Office, www.gpo.gov]

sec. iii--privilege

[[Page 125]]

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
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

For a modern discussion of privileges of Members of Parliament, see
Report of Joint Committee on Parliamentary Privilege of the House of
Commons (H.C. 214-1, Mar. 30, 1999).

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vide by law the details which may be necessary for giving full effect to
the enjoyment of this privilege. No such law being as yet made, it seems
to stand at present on the following ground: 1. The act of arrest is
void, ab initio. 2 Stra., 989. 2. The member arrested may be discharged
on motion, 1 Bl., 166; 2 Stra., 990; or by habeas corpus under the
Federal or State authority, as the case may be; or by a writ of
privilege out of the chancery, 2 Stra., 989, in those States which have
adopted that part of the laws of England. Orders of the House of
Commons, 1550, February 20. 3. 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. 4. 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 their proceedings
stayed or corrected by the superior courts.

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 place for any speech or debate in either
House.'' Const. U.S. Art I, Sec. 6. Under the general authority ``to
make all laws necessary and proper for carrying into execution the
powers given them,'' Const. U.S., Art. II, Sec. 8, they may pro

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to set out immediately on his return, but allows him time to settle his
private affairs, and to prepare for his journey; and does not even scan
his road very nicely, nor forfeit his protection for a little deviation
from that which is most direct; some necessity perhaps constraining him
to it. 2 Stra., 986, 987.

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 exemption from arrest, eundo,
morando, et redeundo, the House of Commons themselves decided that ``a
convenient time was to be understood.'' (1580,) 1 Hats., 99, 100. Nor is
the law so strict in point of time as to require the party

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.

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1956, p. 5991). The House, however, has declined to make a general rule
permitting Members to waive their privilege, preferring that the Member
in each case should apply for permission (III, 2660). Also in
maintenance of its privilege the House has refused to permit the Clerk
or other officers to produce in court, in obedience to a summons, an
original paper from the files, but has given the court facilities for
making copies (III, 2664, 2666; Apr. 15, 1948, p. 4552; Apr. 29, 1948,
pp. 5161, 5162; May 6, 1948, p. 5432; Jan. 18, 1950, p. 565; Feb. 8,
1950, p. 1695; Feb. 13, 1950, p. 1765; Sept. 22, 1950, p. 15636; Apr. 6,
1951, p. 3403; Apr. 12, 1951, p. 3800; Oct. 20, 1951, p. 13777; Jan. 22,
1953, p. 498; May 25, 1953, p. 5523; Jan. 28, 1954, p. 964; Feb. 25,
1954, p. 2281; July 1, 1955, p. 9818; Apr. 12, 1956, p. 6258; Apr. 24,
1958, p. 7262; Apr. 29, 1958, p. 7636; Sept. 16, 1974, p. 31123; Jan.
19, 1977, p. 1728), but on one occasion, where the circumstances
warranted such action, the Clerk was permitted to respond and take with
him certified copies of certain documents described in the subpoena (H.
Res. 601, Oct. 29, 1969, p. 32005); and on the rare occasions where the
House has permitted the production of an original paper from its files,
it has made explicit provision for its return (H. Res. 1022, 1023, Jan.
16, 1968, p. 80; H. Res. 1429, July 27, 1976, p. 24089). No officer or
employee, except by authority of the House, should produce before any
court a paper from the files of the House, nor furnish a copy of any
paper except by authority of the House or a statute (III, 2663; VI, 587;
Apr. 15, 1948, p. 4552; Apr. 30, 1948, pp. 5161, 5162; May 6, 1948, p.
5432; Jan. 18, 1950, p. 565; Feb. 8, 1950, p. 1695; Feb. 13, 1950, p.
1765; Sept. 22, 1950, p. 15636; Apr. 6, 1951, p. 3403; Apr. 12, 1951, p.
3800; Oct. 20, 1951, p. 13777; Mar. 10, 1954, p. 3046; Feb. 7, 1955, p.
1215; May 7, 1956, p. 7588; Dec. 18, 1974, p. 40925). In the 98th
Congress, the House adopted a resolution denying compliance with a
subpoena issued by a Federal Court for the production of records in the
possession of the Clerk (documents of a select committee from the prior
Congress), where the Speaker and joint leadership had instructed the
Clerk in the previous Congress not to produce such records and where the
Court refused to stay the subpoena or to allow the select committee to
intervene to protect its interest; the resolution directed the Counsel
to the Clerk to assert the rights and privileges of the House and to
take all steps necessary to protect the rights of the House (Apr. 28,
1983, p. 10417). On appeal from a subsequent district court judgment
finding the Clerk in contempt, the Court of Appeals reversed on the
ground that a subpoena to depose a nonparty witness under the Federal
Rules of Civil Procedure may only be served in the district (of
Maryland) where it was issued. In re Guthrie, 733 F.2d 634 (4th Cir.
1984). Where an official of both Houses of Congress is subpoenaed in his
official capacity, the concurrence of both Houses by concurrent
resolution is required to permit compliance (H. Con. Res. 342, July 16,
1975, pp. 23144-46).

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, p. 2224; Apr. 8, 1948, p. 4264; Apr. 12, 1948, p. 4347;
Apr. 14, 1948, p. 4461; Apr. 15, 1948, p. 4529; Apr. 28, 1948, p. 5009;
May 6, 1948, pp. 5433, 5451; Feb. 2, 1950, p. 1399; Apr. 4, 1951, p.
3320; Apr. 9, 1951, p. 3525; Apr. 12, 1951, pp. 3751, 3752; Apr. 13,
1951, p. 3915; June 4, 1951, p. 6084; June 22, 1951, p. 7001; Sept. 18,
1951, p. 11571; Sept. 27, 1951, p. 12292; Mar. 5, 1953, p. 1658; Mar.
18, 1953, p. 2085; Mar. 11, 1954, p. 3102; July 19, 1954, p. 10904; Apr.
9, 1956, p. 5970; Apr. 10,

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ees were authorized to appear in response to subpoenas duces tecum, but
prohibited the production of official papers in response thereto; the
resolution also provided that when a court found that official papers,
other than executive session material, were relevant, the court could
obtain copies thereof through the Clerk of the House (see, e.g., H. Res.
12, Jan. 3, 1973, p. 30). In the 95th Congress, the House for the first
time by resolution permitted this same type of general response whether
or not the House is in session or in adjournment if a court has found
that specific documents in possession of the House are material and
relevant to judicial proceedings. The House reserved to itself the right
to revoke this general permission in any specific case where the House
desires to make a different response (H. Res. 10, Jan. 4, 1977, p. 73;
H. Res. 10, Jan. 15, 1979, p. 19). The permission did not apply to
executive session material, such as a deposition of a witness in
executive session of a committee, which could be released only by a
separate resolution passed by the House (H. Res. 296, June 4, 1979, p.
13180). H. Res. 10 of the 96th Congress was clarified and revised later
in that Congress by H. Res. 722 (Sept. 17, 1980, pp. 25777-90) and
became the basis for rule VIII, added as rule L in the 97th Congress (H.
Res. 5, Jan. 5, 1981, pp. 98-113, see Sec. 697, infra).
A resolution routinely adopted up to the 95th Congress provided that
when the House had recessed or adjourned Members, officers, and employ

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ized the Speaker to take any steps he considered necessary, including
intervention as a party or by submission of briefs amicus curiae, in
order to protect the interests of the House before the court (H. Res.
49, Jan. 29, 1981, p. 1304). The House has also 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. 9, 1977, pp.
3966-75; H. Res. 760, Sept. 28, 1977, pp. 31329-36; H. Res. 67, Mar. 4,
1981, pp. 3529-33). For a discussion of the Office of General Counsel,
which was established to provide legal assistance and representation to
the House without regard to political affiliation and in consultation
with the Bipartisan Legal Advisory Group, see clause 8 of rule II,
Sec. 670, infra.

Sec. 291b. Judicial appearances on behalf of
House.

While 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. 118), 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 chairman 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(i)(1) of rule X'') of expenses to employ such special counsel (H. Res.
1420, Aug. 26, 1976, p. 1858; 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 Chairman 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 author

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
House of which he is a Member 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.

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satisfactory apologies and acknowledgments being made, no further
proceeding was had. * * *

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 be a breach of the privileges of the
House; but

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
House to punish for contempts, and a decision that the House by
implication has the power to punish, since ``public functionaries must
be left at liberty to exercise the powers which the people have
intrusted to them,'' and ``the interests and dignity of those who
created them require the exertion of the powers indispensable to the
attainment of the ends of their creation. Nor is a casual conflict with
the rights of particular individuals any reason to be urged against the
exercise of such powers'' (II, 1607; Anderson v. Dunn, 6 Wheaton 204).
In 1828 an assault on the President's secretary in the Capitol gave rise
to a question of privilege which involved a discussion of the inherent
power of the House to punish for contempt (II, 1615). Again in 1832,
when the House censured Samuel Houston, a citizen, for assault on a
Member for words spoken in debate (II, 1616), there was a discussion by
the House of the doctrine of inherent and implied power as opposed to
the other doctrine that the House might exercise no authority not
expressly conferred on it by the Constitution or the laws of the land
(II, 1619). In 1865 the House arrested and censured a citizen for
attempted intimidation and assault on a member (II, 1625); in 1866, a
citizen who had assaulted the clerk of a committee of the House in the
Capitol was arrested by order of the House, but as there was not time to
punish in the few remaining days of the session, the Sergeant-at-Arms
was directed to turn the prisoner over to the civil authorities of the
District of Columbia (II, 1629); and in 1870 Woods, who had assaulted a
Member on his way to the House, was arrested on warrant of the Speaker,
arraigned at the bar, and imprisoned for a term extending beyond the
adjournment of the session, although not beyond the term of the existing
House (II, 1626-1628).

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two Houses of the English Parliament, nor from the adjudged cases in
which the English courts have upheld these practices. Nor, taking what
has fallen from the English judges, and especially the later cases on
which we have just commented, is much aid given to the doctrine, that
this power exists as one necessary to enable either House of Congress to
exercise successfully their function of legislation. This latter
proposition is one that we do not propose to decide in the present case,
because we are able to decide it without passing upon the existence or
nonexistence of such a power in aid of the legislative function'' (103
U.S. 189; II, 1611). In 1894, in the case of Chapman, another
contumacious witness, the Supreme Court affirmed the undoubted right of
either House of Congress to punish for contempt in cases to which its
power properly extends under the expressed terms of the Constitution
(II, 1614; In Re Chapman, 166 U.S. 661). The nature of the punishment
which the House may inflict was discussed by the Court in Anderson's
case (II, 1607; Anderson v. Dunn, 6 Wheaton 204).

Sec. 295. Views of the court in Kilbourn's case.

In 1876 the
arrest and imprisonment by the House of Hallet Kilbourn, a contumacious
witness, resulted in a decision by the Supreme Court of the United
States that the House had no general power to punish for contempt, as in
a case wherein it was proposing to coerce a witness in an inquiry not
within the constitutional authority of the House. The Court also
discussed the doctrine of inherent power to punish, saying in
conclusion, ``We are of opinion that the right of the Houses of
Representatives to punish the citizen for a contempt of its authority or
a breach of its privileges can derive no support from the precedents and
practices of the

In the case of Marshall v. Gordon, 243 U.S. 521 (1917), the Court
addressed the following situation:

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 which 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
chairman, 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.

The court held that the proceedings concerning which the alleged
contempt was committed were not impeachment proceedings; that, whether
they were impeachment proceedings or not, the House was without power by
its own action, as distinct from such action as might be taken under
criminal laws, to arrest or punish for such acts as were committed by
appellant.

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of Commons is at variance with the view and tendency existing in this
country when the Constitution was adopted, as evidenced by the manner in
which the subject was treated in many State constitutions, beginning at
or about that time and continuing thereafter. Such commingling of powers
would be destructive of the basic constitutional distinction between
legislative, executive, and judicial power, and repugnant to limitations
which the Constitution fixes expressly; hence there is no warrant
whatever for implying such a dual power in aid of other powers expressly
granted to Congress. The House has implied power to deal directly with
contempt so far as is necessary to preserve and exercise the legislative
authority expressly granted. Being, however, a power of self-
preservation, a means and not an end, the power does not extend to
infliction of punishment, as such; it is a power to prevent acts which
in and of themselves inherently prevent or obstruct the discharge of
legislative duty and to compel the doing of those things which are
essential to the performance of the legislative functions. As pointed
out in Anderson v. Dunn, 6 Wheat. 204 this implied power in its exercise
is limited to imprisonment during the session of the body affected by
the contempt.
No express power to punish for contempt was granted to the House save
the power to deal with contempts committed by its own Members (art. I,
sec. 5). The possession by Congress of the commingled legislative and
judicial authority to punish for contempts which was exerted by the
House

The authority does not cease when the act complained of has been
committed, but includes the right to determine in the use of legitimate
and fair discretion how far from the nature and character of the act
there is necessity for repression to prevent immediate recurrence, i.e.,
the continued existence of the interference or obstruction to the
exercise of legislative power. In such case, unless there be manifest an
absolute disregard of discretion, and a mere exertion of arbitrary power
coming within the reach of constitutional limitations, the exercise of
the authority is not subject to judicial interference. The power is the
same in quantity and quality whether exerted on behalf of the
impeachment powers or of the others to which it is ancillary. The
legislative power to provide by criminal laws for the prosecution and
punishment of wrongful acts is not here involved.

The Senate may invoke its civil contempt statute (2 U.S.C. 288d) to
direct the Senate legal counsel to bring an action in Federal court to
compel a witness to comply with the subpoena of a committee of the
Senate. The House, in contrast, may either certify such a witness to the
appropriate United States Attorney for possible indictment under the
criminal contempt statute (2 U.S.C. 192) or exercise its inherent power
to commit for contempt by detaining the recalcitrant witness in the
custody of the Sergeant-at-Arms.

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(See also McGrain v. Daugherty, 273 U.S. 135 (1927); Sinclair v.
United States, 279 U.S. 263 (1929); Jurney v. MacCracken, 294 U.S. 125
(1935); Quinn v. United States, 349 U.S. 155 (1955); Groppi v. Leslie,
404 U.S. 496 (1972).)

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. * * *

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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
these bodies, therefore, derive those powers from natural or necessary
right, but from express law; that Congress have no such natural or
necessary power, nor any powers but such as are given them by the
Constitution; that that has given them, directly, exemption from
personal arrest, exemption from question elsewhere for what is said in
their House, and power over their own members and proceedings; for these
no further law is necessary, the Constitution being the law; that,
moreover, by that article of the Constitution which authorizes them ``to
make all laws necessary and proper for carrying into execution the
powers vested by the Constitution in them,'' they may provide by law for
an undisturbed exercise of their functions, e.g., for the punishment of
contempts, of affrays or tumult in their presence, &c.; but, till the
law be made, it does not exist; and does not exist, from their own
neglect; that, in the meantime, however, they are not unprotected, the
ordinary magistrates and courts of law being open and competent to
punish all unjustifiable disturbances or defamations, and even their own
sergeant, who may appoint depu

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ties ad libitum to aid him 3 Grey, 59, 147, 255, is equal to small
disturbances; that in requiring a previous law, the Constitution had
regard to the inviolability of the citizen, as well as of the Member;
as, should one House, in the regular form of a bill, aim at too broad
privileges, it may be checked by the other, and both by the President;
and also as, the law being promulgated, the citizen will know how to
avoid offense. But if one branch may assume its own privileges without
control, if it may do it on the spur of the occasion, conceal the law in
its own breast, and, after the fact committed, make its sentence both
the law and the judgment on that fact; if the offense is to be kept
undefined and to be declared only ex re nata, and according to the
passions of the moment, and there be no limitation either in the manner
or measure of the punishment, the condition of the citizen will be
perilous indeed. * * *

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

[[Page 137]]

the powers vested in them, and thereby hang up a rule for the inspection
of all, which may direct the conduct of the citizen, and at the same
time test the judgments they shall themselves pronounce in their own
case.

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

In 1837 the House declined to proceed with a bill ``defining the
offense of a contempt of this House, and to provide for the punishment
thereof'' (II, 1598). Congress has, however, prescribed that a witness
summoned to appear before a committee of either House who does not
respond or who refuses to answer a question pertinent to the subject of
the inquiry shall be deemed guilty of a misdemeanor (2 U.S.C. 192).

A resolution directing the Speaker to certify to the U.S. Attorney the
refusal of a witness to respond to a subpoena issued by a House
committee involves the privileges of the House and may be offered from
the floor as privileged if offered by direction of the committee
reporting the resolution (e.g., Oct. 27, 2000, p. ----). A committee
report to accompany such resolution may therefore be presented to the
House without regard to the three-day availability requirement for other
reports (see clause 4 of rule XIII; July 13, 1971, p. 24720). A
resolution with two resolve clauses separately directing the
certification of the contemptuous conduct of two individuals is subject
to a demand for a division of the question as to each individual
(contempt proceedings against Ralph and Joseph Bernstein, Feb. 27, 1986,
p. 3061); as is a resolution with one resolve clause certifying
contemptuous conduct of several individuals (Oct. 27, 2000, p. ----,
contrast, Deschler-Brown Precedents, vol. 14, ch. 30, sec. 49.1). A
contempt resolution may be withdrawn as a matter of right before action
thereon (Oct. 27, 2000, p. ----).

[[Page 138]]

dents, vol. 4, ch. 15, sec. 21). In the 98th Congress, the House adopted
a privileged resolution directing the Speaker to certify to the United
States Attorney the refusal of a former official of the executive branch
to obey a subpoena to testify before a subcommittee (H. Res. 200, May
18, 1983, p. 12720). In the 107th Congress the House considered a
resolution directing the Speaker to certify to the United States
Attorney the refusal of three individuals to obey a subpoena duces tecum
and to answer certain questions while appearing under subpoena before a
subcommittee, which resolution was withdrawn before action thereon (H.
Res. 657, Oct. 27, 2000, p. ----).
In the 97th Congress, the House adopted a resolution directing the
Speaker to certify to the United States Attorney the failure of an
official of the executive branch (Anne M. Gorsuch, Administrator,
Environmental Protection Agency) to submit executive branch documents to
a House subcommittee pursuant to a subcommittee subpoena; this was the
first occasion on which the House cited an executive official for
contempt of Congress (H. Res. 632, H. Rept. 97-968, Dec. 16, 1982, p.
31754). In the following Congress, the 98th, the House adopted (as a
question of privilege) a resolution reported from the same committee
certifying to the United States Attorney the fact that an agreement had
been entered into between the committee and the executive branch for
access by the committee to the documents which Anne Gorsuch had failed
to submit and which were the subject of the contempt citation (where the
contempt had not yet been prosecuted) (Aug. 3, 1983, p. 22692). In other
cases where compliance had subsequently been attained in the same
Congress, the House has adopted privileged resolutions certifying the
facts to the United States Attorney to the end that contempt proceedings
be discontinued (see Deschler's Prece

A resolution laying on the table a message from the President
containing certain averments inveighing disrespect toward Members of
Congress was considered as a question of the privileges of the House as
a breach of privilege in a formal communication to the House (VI, 330).-

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.

The Constitution of the United States limits the broad Parliamentary
privilege to the time of attendance on sessions of Congress, and of
going to and returning therefrom. In a case wherein a Member was
imprisoned during a recess of Congress, he remained in confinement until
the House, on assembling, liberated him (III, 2676).

[[Page 139]]

----); they have been excluded (I, 449, 464, 474, 550, 551; VI, 56; Mar.
1, 1967, pp. 4997-5038), and in one case a Member-elect was expelled (I,
476; II, 1262). The names of Members who have not been sworn are not
entered on the roll from which the yeas and nays are called for entry on
the Journal (V, 6048; VIII, 3122), nor are such Members-elect permitted
to vote or introduce bills.

It is recognized in the practice of the House that a Member may be
named to a committee before he is sworn, and in some cases Members have
not taken the oath until long afterwards (IV, 4483), although in the
modern practice Members-elect have been elected to standing committees
effective only when sworn (H. Res. 26, 27; Jan. 6, 1983, p. 132). In one
case, wherein a Member did not appear to take the oath, the Speaker with
the consent of the House appointed another Member to the committee place
(IV, 4484). The status of a Member-elect under the Constitution
undoubtedly differs greatly from the status of a Member-elect under the
law of Parliament. In various inquiries by committees of the House this
question has been examined, with the conclusions that a Member-elect
becomes a Member from the very beginning of the term to which he was
elected (I, 500), that he is as much an officer of the Government before
taking the oath as afterwards (I, 185), and that his status is
distinguished from that of a Member who has qualified (I, 183, 184).
Members-elect may resign or decline before taking the oath (II, 1230-
1233, 1235; Jan. 6, 1999,

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.

On Complaint of a breach of privilege, the party may either be
summoned, or sent for in custody of the sergeant. 1 Grey, 88, 95.

The privilege of a Member is the privilege of the House. If the Member
waive it without leave, it is a ground for punishing him, but cannot in
effect waive the privilege of the House. 3 Grey, 140, 222.

Although the privilege of Members of the House is limited by the
Constitution, these provisions of the Parliamentary law are applicable,
and persons who have attempted to bribe Members (II, 1599, 1606),
assault them for words spoken in debate (II, 1617, 1625) or interfere
with them while on the way to attend the sessions of the House (II,
1626), have been arrested by order of the House by the Sergeant-at-Arms,
``Wherever to be found.'' The House has declined to make a general rule
to permit Members to waive their privilege in certain cases, preferring
to give or refuse permission in each individual case (III, 2660-2662).

[[Page 140]]

sion of legislative intent, and there was no evidence of that in the
legislative history of the statute.

In United States v. Helstoski, 42 U.S. 477 (1979), the Supreme Court
discussed the ability of either an individual Member or the entire
Congress to waive the protection of the Speech or Debate Clause. The
Court found first, that the Member's conduct in testifying before a
grand jury and voluntarily producing documentary evidence of legislative
acts protected by the Clause did not waive its protection. Assuming,
without deciding, that a Member could waive the Clause's protection
against being prosecuted for a legislative act, the Court said that such
a waiver could only be found after an explicit and unequivocal
renunciation of its immunity, which was absent in this case. Second,
passage of the official bribery statute, 18 U.S.C. 201, did not amount
to an institutional waiver of the Speech or Debate Clause for individual
Members. Again assuming without deciding whether Congress could
constitutionally waive the Clause for individual Members, such a waiver
could be shown only by an explicit and unequivocal expres

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 the
offender or referred him to a due course. Lex. Parl., 63.

Privilege is in the power of the House, and is a restraint to the
proceeding of inferior courts, but not of the House itself. 2 Nalson,
450; 2 Grey, 399. For whatever is spoken in the House is subject to the
censure of the House; and offenses of this kind have been severely
punished by calling the person to the bar to make submission, committing
him to the tower, expelling the House, &c. Scob., 72; L. Parl., c. 22.

[[Page 141]]

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.

Where the Clerk, presiding during organization of the House, declined
to put a question, a Member put the question from the floor (I, 67).

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., 586. So, when a member stood indicted for felony, it
was adjudged that he ought to remain of the House till conviction; for
it may be any man's case, who is guiltless, to be accused and indicted
of felony, or the like crime. 23 El., 1580; D'Ewes, 283, col. 1; Lex.
Parl., 133.

Where Members of the House have been arrested by the State authorities
the cases have not been laid first before the House; but when the House
has learned of the proceedings, it has investigated to ascertain if the
crime charged was actually within the exceptions of the Constitution
(III, 2673), and in one case where it found a Member imprisoned for an
offense not within the exceptions it released him by the hands of its
own officer (III, 2676).

[[Page 142]]

victed 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 (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), and on
conviction resigned (II, 1282). In this case the Senate, after the
conviction, took steps looking to action although an application for
rehearing on appeal was pending (II, 1282).

Sec. 306. Practice as to Members indicted or
convicted.

The House has not usually taken action in the infrequent
instances where 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 con

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
proceeding, and take such steps as they think proper. 2 Hats., 259. Of
which see many examples. Ib., 256, 257, 258. But the communication is
subsequent to the arrest. 1 Blackst., 167.

[[Page 143]]

to them in the usual parliamentary manner. 2 Hats., 252; 4 Inst., 15;
Seld. Jud., 53.

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

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 view to influence the votes of the
members, 2 Hats., 251, 6.
* * * * *