SECTION II.
LEGISLATURE.
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.—Constitution of the United States, Article I., Section 1.
The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. Const. U. S., Art. I. Sect. 6.
For the powers of Congress, see the following Articles and Sections of the Constitution of the United States:—Art. I., Sec. 4, 7, 8, 9.—Art. II., Sect. 1, 2.—Art. III., Sec. 3.—Art. IV., Sec. 1, 3, 5.—And all the Amendments.
SECTION III.
PRIVILEGE.
The privileges of the 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 point 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 wife,[2] or his servants, [familiares sui] for any matter of their own, may be[3] arrested on mesne process, in any civil suit: 3d. Nor be detained under execution, though levied before the time of privilege: 4th. Nor impleaded, cited or subpœnaed, 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 one instance, indeed, it has been relaxed by 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 Blackstone, 163, 164.
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 be 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 makes all laws necessary and proper for carrying into execution the powers given them," Const. U. S. Art II. Sec. 8, they may provide 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 BI. 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 Com. 1550, Feb. 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.
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 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.
This privilege from arrest, privileges of course against all process, the disobedience 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.