Neither house of Congress is required by the Constitution to hold open sittings or publish its speeches and debates.[125] Until 1799 the Senate exercised its constitutional right to transact public business in secret; and during that period preserved no record of its debates. This policy did not win for it the confidence of the people, and until after it was in a measure abandoned, the Senate, notwithstanding the important powers conferred on it by the Constitution, was not a very influential body.

To deny the right of the people to control the government leads naturally to denial of their right to criticise those who shape its policy; since if free and unrestricted discussion and even condemnation of official conduct were allowed, no system of minority rule could long survive. This was well understood in the Federal Convention. The members of that body saw that the constitutional right of public officials to disregard the wishes of the people was incompatible with the right of the latter to drag them before the bar of public opinion. Hence some limitation of the right to criticise public officials was necessary to safeguard and preserve their official independence. This seems to have been the purpose of the Constitution in providing with reference to members of Congress that "for any speech or debate in either House they shall not be questioned in any other place."[126]

This provision may be traced to the English Bill of Rights where it was intended as a means of protecting members of Parliament against imprisonment and prosecution for opposing the arbitrary acts of the Crown. It was at first merely an assertion of the independence of the Lords and Commons as against the King, and a denial of the right of the latter to call them to account for anything said or done in their legislative capacity. But after it had accomplished its original purpose and the tyrannical power of the King had been overthrown, it was found to be serviceable in warding off attacks from another direction. It thus came about that the means devised and employed by Parliament to shield its members against intimidation and oppression at the hands of the King was later turned against the people; for Parliament in divesting the King of his irresponsible authority was desirous only of establishing its own supremacy. It jealously guarded its own prerogatives, claimed the right to govern independently, and just as formerly it had resisted the encroachments of royal authority, it now resented the efforts of the people to influence its policy by the publication and criticism of its proceedings.

A standing order passed by the House of Commons in 1728 declared "that it is an indignity to, and a breach of, the privilege of this House for any person to presume to give in written or printed newspapers, any account or minute of the debates or other proceedings; that upon discovery of the authors, printers, or publishers of any such newspaper this House will proceed against the offenders with the utmost severity."[127]

This was the attitude of Parliament down to 1771, when, after a prolonged and bitter struggle, the House of Commons was finally driven by the force of an overwhelming public sentiment to acquiesce in the publication of its proceedings.

There was, however, a small minority in the House that opposed the policy of prosecuting the representatives of the press. The following extract from the Annual Register for 1771 describes the attitude of this minority.

"Some gentlemen however did not rest their opposition on the points of decorum and prudence, but went so far as to deny the authority of the House in this respect, and said that it was an usurpation assumed in bad times, in the year 1641; that while their privileges and authority were used in defense of the rights of the people, against the violence of the prerogative, all men willingly joined in supporting them, and even their usurpations were considered as fresh securities to their independence; but now that they saw their own weapons converted to instruments of tyranny and oppression against themselves, they would oppose them with all their might, and, however they may fail in the first efforts, would finally prevail, and assuredly bring things back to their first principles. They also said that the practice of letting the constituents know the parliamentary proceedings of their representatives was founded upon the truest principles of the Constitution; and that even the publishing of supposed speeches was not a novel practice, and if precedent was a justification, could be traced to no less an authority than Lord Clarendon."[128]

"In the early years of the colonial era the right of free speech was not always well guarded. There was frequent legislation, for example, against 'seditious utterances,' a term which might mean almost anything. In 1639 the Maryland assembly passed an act for 'determining enormous offences,' among which were included 'scandalous or contemptuous words or writings to the dishonor of the lord proprietarie or his lieutenant generall for the time being, or any of the council.' By a North Carolina act of 1715 seditious utterances against the government was made a criminal offence, and in 1724 Joseph Castleton, for malicious language against Governor Burrington and for other contemptuous remarks, was sentenced by the general court to stand in the pillory for two hours and on his knees to beg the governor's pardon. A New Jersey act of 1675 required that persons found guilty of resisting the authority of the governor or councillors 'either in words or actions ... by speaking contemptuously, reproachfully, or maliciously, of any of them,' should be liable to fine, banishment, or corporal punishment at the discretion of the court. In Massachusetts even during the eighteenth century the right of free political discussion was denied by the House of Representatives as well as by the royal governor, though often unsuccessfully."[129]

"The general publication of parliamentary debates dates only from the American Revolution, and even then it was still considered a technical breach of privilege.

"The American colonies followed the practice of the parent country. Even the laws were not at first published for general circulation, and it seemed to be thought desirable by the magistrates to keep the people in ignorance of the precise boundary between that which was lawful and that which was prohibited, as more likely to avoid all doubtful actions....