privilege is confined to any precise time, the rule being that the party is entitled to it for a convenient time, redeundo.1 § 862. The privilege of members of Parliament formerly extended also to their servants and goods, so that they could not be arrested. But so far as it went to obstruct the ordinary course of justice in the British courts, it has since been restrained. In the members of Congress the privilege is strictly personal, and does not extend to their servants or property. It is also, in all cases, confined to a reasonable time, eundo, morando, et ad propria redeundo, instead of being limited by a precise number of days. It was probably from a survey of the abuses of privilege which for a long time defeated in England the purposes of justice, that the Constitution has thus marked its boundary with a sedulous caution.3 § 863. The effect of this privilege is, that the arrest of the member is unlawful, and a trespass ab initio, for which he may maintain an action, or proceed against the aggressor by way of indictment. He may also be discharged by motion to a court of justice, or upon a writ of habeas corpus; and the arrest may also be punished as a contempt of the House." § 864. In respect to the time of going and returning, the law is not so strict in point of time as to require the party to set out immediately on his return, but allows him time to settle his private affairs, and to prepare for his journey. Nor does it nicely scan his road, nor is his protection forfeited by a little deviation from that which is most direct, for it is supposed that some superior convenience or necessity directed it. The privilege from arrest takes place by force of the election, and before the member has taken his seat or is sworn.7 § 865. The exception to the privilege is, that it shall not extend to "treason, felony, or breach of the peace." These words are the same as those in which the exception to the privilege of 1 Holiday v. Pitt, 2 Str. R. 985; s. c. Cas. Temp. Hard. 28; 1 Black. Comm. 165, Christian's Note, 21; Barnard v. Mordaunt, 1 Kenyon, R. 125. § 3. 2 Com. Dig. Parliament, D. 17; 1 Black. Comm. 165; Jefferson's Manual, § 3. 8 Jefferson's Manual, § 3. ✦ Jefferson's Manual, § 3; 2 Str. 990; 2 Wilson's R. 151; Cas. Temp. Hard. 28. 5 1 Black. Comm. 164, 165, 166; Com. Dig. Parliament, D. 17; Jefferson's Manual, Jefferson's Manual, § 3; 2 Str. R. 986, 987. 7 Jefferson's Manual, § 3; but see Com. Dig. Parliament, D. 17. Parliament is usually expressed at the common law, and were doubtless borrowed from that source. Now, as all crimes are offences against the peace, the phrase "breach of the peace" would seem to extend to all indictable offences, as well those which are in fact attended with force and violence, as those which are only constructive breaches of the peace of the govern ment, inasmuch as they violate its good order. And so, in truth, it was decided in Parliament, in the case of a seditious libel published by a member (Mr. Wilkes), against the opinion of Lord Camden and the other judges of the court of common pleas, and, as it will probably now be thought, since the party spirit of those times has subsided, with entire good sense and in furtherance of public justice. It would be monstrous that any member should protect himself from arrest or punishment for a libel, often a crime of the deepest malignity and mischief, while he would be liable to arrest for the pettiest assault or the most insignificant breach of the peace. 3 § 866. The next great and vital privilege is the freedom of speech and debate, without which all other privileges would be comparatively unimportant or ineffectual. This privilege, also, is derived from the practice of the British Parliament, and was in full exercise in our colonial legislatures, and now belongs to the legislature of every State in the Union as matter of constitutional right. In the British Parliament it is a claim of immemorial right, and is now further fortified by an act of Parliament; and it is always particularly demanded of the king in person by the speaker of the House of Commons at the opening of every new Parliament. But this privilege is strictly confined to things done in the course of parliamentary proceedings, and does not cover things done beyond the place (a) and limits of duty.7 Therefore, although a speech delivered in the House of Commons is privileged, and the member cannot be questioned respecting it elsewhere, yet, if he publishes his speech, and it contains libellous matter, he is liable to an action and prosecution there 1 4 Inst. 25; 1 Black. Comm. 165; Com. Dig. Parliament, D. 17. 21 Black. Comm. 166. 4 See 1 Black. Comm. 166, 167. 1 Black. Comm. 164, 165. (a) This includes committee rooms and all authorized places of meeting. Goffin 8 Rex v. Wilkes, 2 Wilson's R. 151. v. Donnelly, 6 Q. B. D. 307; Coffin v. Cof- for, as in common cases of libel.1 (a) And the same principles seem applicable to the privilege of debate and speech in Congress. 1 The King v. Creevy, 1 Maule and Selw. 273. (a) This would now be too broad a statement. A member of Parliament may certainly circulate among his constituents a speech made by him in Parliament. Wason v. Walter, L. R. 4 Q. B. 73, 95; Davison v. Duncan, 7 El. & B. 223, 229. (For the law of England before legislation see Stockdale v. Hansard, 9 Ad. & E. 1; Wason v. Walter, supra.) And it may be doubted whether any such qualification of the privilege as that suggested can be worked in this country. Practically, the qualification is everywhere ignored, if it exists. Members of Congress, if not of the State legislatures, act upon the supposition that the circulation, by themselves, of their speeches is (prima facie) privileged, and that the privilege is not limited in territory. And if such circulation is privileged, it cannot be limited in that way without absurd consequences. A member of the House of Representatives delivers a speech there containing defamatory reflections upon some one; on the next day he is transferred to the Senate, and the same speech with the same reflections, is delivered thero. Must tho speaker be confined to the particular district which he represented in the house, in circulating the first speech, while he has the whole State for the second ? Again, the subject of the reflections themselves may concern the whole country, as in the case of an impeachment; in such a case shall one who represents a very poor and degenerate constituency, e. g., the lower part of New York city, have the right to circulate his speech there, where it will probably have no effect for any purpose, and be cut off from circulating it among more enlightened people? Again, if a "fair report" of the proceed ings of the body may be published (without malice) by newspapers circulating generally, how can it be that a member of that body must not circulate his own speech, assuming that it contains or is accompanied with a fair report of the proceedings, beyond his constituency? Once more, a member's constituency is migratory part of the year, as from June till October; must the member withhold his speeches during that time for fear that if he sends them for distribution, addressed generally to the postmaster of a summer resort of his constituents, copies may be delivered to persons not of his district or State? It is plain, then, that any concession that a member of the legislature may send his speeches to his constituents is a yielding, in this country, of the whole argument against privilege in such cases. And, further, the existence of a privilege itself for the circulation of a speech by the person who made it, is in ordinary cases warranted and required by the gen eral rule already referred to, by which fair reports of the proceedings may be privileged. "In ordinary cases," we say, for generally the printed speech contains a sufficient report of the occasion. The real difficulty, so far as there is any difficulty, is with the circulation of speeches which would not be privileged on the footing of a publication, e. g., in the newspapers, of a fair report of the proceedings. And in regard to that case, it is hard to see any reason which can justify circulation among a member's constituency withont justifying circulation generally. It is hard to justify either. The true rule, it is apprehended, should be to put the circulation of speeches altogether upon the footing of fair reports, justifying the speaker only as he would be justified as the publisher of a newspaper reporting to the world the proceedings of the legislature. It is now too late, however it may have been sixty years ago, to question a privilege of "fair reports;" and as for the doctrine of privilege itself, that is funda No man ought to have a right to defame others under color of a performance of the duties of his office. And if he does so in the actual discharge of his duties in Congress, that furnishes no reason why he should be enabled, through the medium of the press, to destroy the reputation and invade the repose of other citizens. It is neither within the scope of his duty nor in furtherance of public rights or public policy. Every citizen has as good a right to be protected by the laws from malignant scandal and false charges and defamatory imputations, as a member of Congress has to utter them in his seat. If it were otherwise, a man's character might be taken away without the possibility of redress, either by the malice, or indiscretion, or overweening self-conceit of a member of Congress. It is proper, however, to apprise the learned reader that it has been recently insisted in Congress by very distinguished lawyers, that the privilege of speech and debate in Congress does extend to publication of the speech of the member. And they ground themselves upon an important distinction arising from the actual differences between English and American legislation. In the former the publication of the debates is not strictly lawful, except by license of the House. In the latter it is a common right, exercised and supported by the direct encouragement of the body. This reasoning deserves a very attentive examination.2 § 867. The next clause regards the disqualifications of members of Congress, and is as follows: "No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which 1 See the reasons in Coffin v. Coffin, 4 Mass. R. 1. 2 Mr. Doddridge's Speech in the case of Houston, in May, 1832; Mr. Burges's Speech, Ibid. mental. Society could not long exist if to do harm, whether in self-protection or in the discharge of duty, were not permitted. It is only necessary that the justification should be limited to the reasonable requirements of the particular case; I may do harm to my neighbor only in so far as may reasonably appear to be necessary in the discharge of duty or in protecting myself, my family, or my property. The privilege in question is of course of the kind called prima facie; that is, it exists on the footing that the act of the sonder was not malicious, not done, e. g. with an indirect motive of wrong. (As to malice in that sense see Stevens v. Midland Ry. Co., 10 Ex. 356; Abrath v. Northeastern Ry. Co., 11 Q. B. D. 440, 450, Bowen, L. J.; s. c. 11 App. Cas. 247.) But the mere sending a speech beyond one's constituency, far from estab lishing, could not even, in reason, be evidence of malice. shall have been created, or the emoluments whereof shall have been increased, during such time. And no person, holding any office under the United States, shall be a member of either house of Congress during his continuance in office." This clause does not appear to have met with any opposition in the convention, as to the propriety of some provision on the subject, the principal question being as to the best mode of expressing the disqualifications. It has been deemed by one commentator an admirable provision against venality, though not, perhaps, sufficiently guarded to prevent evasion. And it has been elaborately vindicated by another with uncommon earnestness. 3 The reasons for excluding persons from offices who have been concerned in creating them, or increasing their emoluments, are to take away, as far as possible, any improper bias in the vote of the representative, and to secure to the constituents some solemn pledge of his disinterestedness. The actual provision, however, does not go to the extent of the principle, for his appointment is restricted only "during the time for which he was elected," thus leaving in full force every influence upon his mind, if the period of his election is short or the duration of it is approaching its natural termination. It has sometimes been matter of regret that the disqualification had not been made coextensive with the supposed mischief, and thus have forever excluded members from the possession of offices created, or rendered more lucrative, by themselves. Perhaps there is quite as much wisdom in leaving the provision where it now is. § 868. It is not easy, by any constitutional or legislative enactments, to shut out all or even many of the avenues of undue or corrupt influence upon the human mind. The great securities for society those on which it must forever rest in a free governmentare responsibility to the people through elections, and personal character and purity of principle. Where these are wanting there never can be any solid confidence or any deep sense of duty. Where these exist they become a sufficient guaranty against all sinister influences, as well as all gross offences. It has been remarked with equal profoundness and sagacity, that, 1 Journ. of Convention, 214, 319, 320, 322, 323. 21 Tuck. Black. Comm. App. 198, 214, 215, 375. 8 Rawle on the Const. ch. 19, p. 184, &c. ; 1 Wilson's Law Lect. 446 to 449. 4 Rawle on the Const. ch. 19. See 1 Tuck. Black. Comm. App. 375. |