§ 233. Privileges of Members of Congress.

The first clause of the sixth section of Article I of the Constitution provides: "The Senators and Representatives shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place."

The exemption from arrest thus given is now of little importance as arrest of the person is now almost never authorized except for crimes which fall within the classes exempt from the privi lege. The words "treason, felony and breach of the peace" have been construed to mean all indictable crimes.23

Having decided in Kilbourn v. Thompson that the investigation, in aid of which Kilbourn's testimony had been demanded, was in reference to a matter concerning which Congress had not the power to legislate, and that, therefore, the order for Kilbourn's Constitution that is so clear and emphatic should be sought to be annulled or suspended in the manner attempted by the passage of this bill. The emoluments of the Secretary of State were increased by the Fifty-ninth Congress. The occupant of that office has been regularly receiving these emoluments. We believe that the mischief undertaken to be provided against by this provision of the Constitution clearly embraces the act of appointing one of the said United States Senators to the office of the Secretary of State. It might be said, and truly, that this mischief is remote in any event; however this may be, it contained sufficient danger for the framers of the Constitution to provide against it. If the Constitution prohibits it, surely it can not be argued that if this prohibition can be so easily overcome by the device of reducing the salary below what in the judgment of the Congress it should be, with the hope which in this case is almost a certainty, of the salary being restored to its present amount, that that would not be clear evasion of the plain provision of the Constitution. The office of the Secretary of State will be probably held for eight years by its next incumbent, and a designing Senator, which the Constitution seeks to provide against, could reasonably anticipate, that although his salary would be temporarily reduced in the closing years of his senatorial term, at the expiration of that term it would, through his influence, be restored to the amount to which it was placed by the Congress of which he was a member, and thus he would receive the higher salary from at least two to probably eight years."

23 Williamson v. United States, 207 U. S. 425; 28 Sup. Ct. Rep. 163; 52 L. ed. 278; Hinds, Precedents of the House of Representatives, § 2673. 24 103 U. S. 168; 26 L. ed. 377.

imprisonment had been void for want of jurisdiction, the court go on to consider the personal liability of the individual members voting for and participating in the commitment for contempt. Having pointed out that these individual members had undoubtedly, by their speeches, reports and notes, approved and authorized the imprisonment of Kilbourn, and having quoted the constitutional clause with reference to the exemption of members of Congress from arrest, and from being questioned as to any speech or debate, the court ask: "Is what the defendants did in the matter in hand covered by this provision? Is a resolution offered by a member, speech or debate, within the meaning of the clause? Does its protection extend to the report which they made to the House, of Kilbourn's delinquency? To the expression of opinion that he was in contempt of the authority of the House? To their vote in favor of the resolution under which he was imprisoned? If these questions be answered in the affirmative, they cannot be brought in question for their action in a court of justice or in any other place. And yet if a report, or a resolution, or a vote, is not speech or debate, of what value is the constitutional protection? We may perhaps find some aid in ascertaining the meaning of this provision, if we can find out its source, and fortunately in this there is no difficulty. For while the framers of the Constitution did not adopt the lex et consuetudo of the English Parliament as a whole, they did incorporate such parts of it, and with it such privileges of Parliament, as they thought proper to be applied to the two Houses of Congress."

After reviewing the English case of Stockdale v. Hansard, and the early Massachusetts case of Coffin v. Coffin25 and the dictum of Story in his Commentaries (§ 866) the court say: "It seems to us that the views expressed in the authorities we have cited are sound and are applicable to this case. It would be a narrow view of the constitutional provision to limit it to words spoken in debate. The reason of the rule is as forcible in its application to written reports presented in that body by its committees,

25 4 Mass. 1.

to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting, whether it is done vocally or by passing between the tellers. In short, to things generally done in a session of the House by one of its members in relation to the business before it. It is not necessary to decide here that there may not be things done, in the one House or the other, of an extraordinary character, for which the members who take part in the act may be held legally responsible. If we could suppose the members of these bodies so far to forget their high functions and the noble instrument under which they act as to imitate the Long Parliament in the execution of the Chief Magistrate of the Nation, or to follow the example of the French Assembly in assuming the function of a court for capital punishment, we are not prepared to say that such an utter perversion of their powers to a criminal purpose would be screened from punishment by the constitutional provision for freedom of debate. In this, as in other matters which have been pressed on our attention, we prefer to decide only what is necessary to the case in hand, and we think the plea set up by those of the defendants who were members of the House is a good defense."

As regards the freedom of the members of Congress from prosecution for words spoken in either House, no comment is needed, except to observe that this privilege does not extend to the outside publication by a member of libelous matter spoken in Congress.26 As Story observes: "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." 27

It may further be observed that the constitutional immunity extends to witnesses appearing before committees of Congress, and, probably, to petitions, and other addresses to that body.as

26 King v. Creery, 1 Maule & Selw. 273.

27 Commentaries, § 863.

28 See Columbia Law Rev. Feb. 1910, the excellent paper of Mr. Van Vechten Veeder, entitled "Absolute Immunity in Defamation: Legislative and Executive Proceedings.”

CHAPTER XXXVIII.

ELECTION OF MEMBERS OF CONGRESS.1

§ 234. Their Apportionment among the States.

The Constitution provides that the House of Representatives shall be composed of members chosen every second year by the people of the several States, and that they shall be apportioned among the States according to their several populations, the whole number of persons in each State, excluding Indians not taxed, being counted. The Fourteenth Amendment provides, however, that "when the right to vote at any election for the choice of electors for President and Vice-President of the United States, representatives in Congress, the executive or judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twentyone years of age and citizens of the United States, or in any way abridged except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion

1 The Senate and House of Representatives are spoken of as two “Houses” of Congress, the Senate being often termed the Upper House, and the House of Representatives, the Lower House, or, simply the "House."

2 The original provision of the Constitution (Art. 8, Sec. 88, Cl. 3) was as follows: "Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.”

By section 2 of the Fourteenth Amendment, it is provided that Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.” This amendment thus leaves it within the constitutional power of the States to place such restrictions as they may choose upon the exercise of the suffrage within their limits, but subject to a reduction of the number of representatives to which they are entitled in Congress to the extent to which the right to vote is denied to adult male inhabitants, citizens of the United States.

The Fifteenth Amendment, adopted two years later, places the absolute prohibition upon the States that "the right of citizens of the United States to vote shall not be denied or abridged on account of race, color or previous condition of servitude."

By some it has been argued that the Fifteenth Amendment is to be construed as repealing the clause of the Fourteenth Amendment relating to the reduction of the representation of the States, in that it renders constitutionally impossible the action which it was the object of that clause to deter the States from taking. This argument, though it has had the support of eminent authority, cannot be considered a sound one, for the clause of the Fourteenth Amendment provides for a reduction not simply in cases where adult male inhabitants, citizens of the United States, are denied the right to vote because of race, color or previous condition of servitude, but for any cause whatever, saving for participation in rebellion or other crime.

As is well known, most of the Southern States have, by various provisions adopted in their several constitutions, in large measure eliminated the negro vote. This has led to a certain amount of agitation both in the public press and in Congress for the enforcement of the reduction of representation clause of the Fourteenth Amendment, but as yet no decisive steps have been taken.*

3 E. g. Senator John Sherman, Recollections, I, 450. See also article by Mr. Emmet O'Neal in North American Review, Vol. 181, p. 530.

4 In the platform of the Republican party adopted by the National Convention in 1904 it was declared: "We favor such congressional action as shall determine whether, by special discriminations, the elective franchise in any State has been unconstitutionally limited, and, if such be the case, we demand that representation in Congress and in the Electoral College shall be propor tionally reduced, as directed by the Constitution of the United States."