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Very likely he was right regarding New York, where venal men were numerous enough to embolden each other, and brazen defiance of morality brought little if any disgrace. In Massachusetts and three quarters of the rest of the States bribery is ordinarily so rare that the few guilty men are shamed into hiding their offenses. Bribery is one of the hardest things to prove, and in this particular most legislators are likely to depart from the habit of mankind in general and to remember that a man is innocent until he is proved guilty. For such exceptional charity there is exceptional reason. Men are rarely elected to public office unless they have some amiable qualities, and many succeed chiefly because they are gifted with the elements of popularity. It follows that a Legislature is peculiarly addicted to good-fellowship. Even the rogues are likeable rogues. Furthermore, their votes count just as much as any other votes, and nobody, however upright, cares to invite hostility to the measures he has at heart by alienating good-will unless that is clearly demanded. Also it has to be admitted that however praiseworthy in theory may be the informer and the accuser, in the actual relations of life human nature does not warm toward them. To pretend otherwise, is hypocrisy.

All this discourages censoriousness. It makes legislators reluctant to attribute guilt to each other, makes them slow to pass sentence, makes even the most righteous of them hesitate to crucify an associate. So it is not, in my judgment, quite the case, as Mr. Roosevelt thought it, that constituents can easily find out the character of a member by inquiring from his fellows. In the doubtful instances a legislator is likely to give the benefit of the doubt to his fellow-member, and not impugn his motives if inquiry is made.

CHAPTER XX

PRIVILEGE

PARLIAMENTARY "privileges" were intentionally left indefinite. Speaker Thorpe's case, in the reign of Henry VI, became famous by bringing out the reason for this. Thorpe, who was Speaker of the House of Commons, was sued by Richard, Duke of York, in the recess of Parliament. The plaintiff obtained a judgment and execution, upon which Thorpe was arrested and committed to the Fleet prison. After the recess the whole House of Commons presented a petition to the Lords, for the "enlargement" of their Speaker. The Lords thereupon propounded a question to the judges, and Sir John Fortescue, replying in the name of his brethren, declared that "they ought not to make answer to that question: for it hath not been used aforetime that the justices should in any wise determine the privileges of the high court of Parliament. For it is so high and mighty in its nature, that it may make law: and that which is law, it may make no law and the determination and knowledge of that privilege belongs to the Lords of Parliament, and not to the justices."

Blackstone after citing this goes on to say that privilege of Parliament was principally established in order to protect its members, not only from being molested by their fellow-subjects, but also more especially from being oppressed by the power of the Crown. "If therefore all the privileges of Parliament were once to be set down and ascertained, and no privilege to be allowed but what was so defined and determined, it were easy for the executive power to devise some new case, not within the line of privilege, and under pretence thereof, to harass any refractory member and violate the freedom of Parliament. The dignity and independence of the two Houses are therefore in great measure preserved by keeping their privilege indefinite." 1

In a sense it may still be true that privilege is whatever Parliament or any other legislature may choose to make it, yet

1 Commentaries, 1, 164.

Constitutions, statutes, and precedents so restrict the power that at least the customary lines of its exercise are fairly well established. For a classification of these, let us follow Hatsell, who found the principal view that the House of Commons seem always to have had in the several declarations of their Privileges, was to secure to themselves, (1) their right of attendance in Parliament, unmolested by threats or insults of private persons; (2) their thoughts and attention undisturbed by any concern for their goods or estate; (3) their personal presence in the House, not to be withdrawn, either by the summons of inferior courts, by the arrest of their bodies in civil causes, or, what was of more importance, by commitment by orders from the Crown, for any supposed offenses.1

Hatsell cites various English cases of arrest for affronting members. For example, take this entry: "On the 12th of February, 1620, Mr. Lovell complains, that one Dayrell had threatened his person: He is ordered to be sent for by the Serjeant; the same day he is brought to the Bar, but denying that he spake the words charged upon him, he is ordered to attend again the next day with his witnesses; he accordingly attends on the 13th, but one of his witnesses being a woman, Mr. Crewe and Sir Edward Coke oppose her being called in, very gravely objecting, on the authority of St. Bernard, 'That a woman ought not to speak in the congregation.' A Committee is therefore appointed to go out, and examine her at the door; and Sir Edward Gyles reports the examination, and Dayrell is ordered to be committed to the Serjeant, and then to come and acknowledge his fault, which if he does not do, then to be committed to the Tower." 2

Typical of the American cases is that of A. P. Field, who in 1865 assaulted Representative William D. Kelley, of Pennsylvania, with a knife at a hotel in Washington. The House agreed to a resolution reported by a committee, to the effect that Field had been convicted of a breach of privilege "in the attempt, by language of intimidation and bullying, to deter [Kelley] from the free and fearless exercise of his rights, and in following up the attempt with assault." Thereupon Field was reprimanded at the bar by the Speaker.

The theory that a member of Congress has in such matters rights beyond those of any other citizen, was contested by a 1 Precedents, 1, 205.

2 Ibid., 1, 194.

minority of the House Judiciary Committee in 1870, when Patrick Woods assaulted Representative Charles H. Porter, in Richmond, Virginia, while he was returning to Washington. The minority argued among other things that Congress derived no power whatever from English parliamentary law; that members were exempt only as provided in the Constitution; that they have the same protection as all other citizens for their rights of person and property, no more and no less. These arguments did not prevail, for Woods was sentenced to imprisonment for three months. It is to be noticed that one consideration advanced by the majority of the Judiciary Committee in this case was that assault on members might interfere with the presence of a quorum, and that "assaulting and maiming members might become an inconvenient but sure method of changing a majority in the House in high party times, especially where that majority was not large." The inconvenience of this, particularly to the members maimed, would seem to be beyond cavil.

CRITICISM, SLANDER, LIBEL

WITHIN the right of attendance unmolested by threat or insult, comes the question of criticism. One of the dearest privileges of the citizen is that of scolding public servants. They have not always endured it as meekly as is now their wont. Time was when they resented it and used their power to punish. On the 15th of April, 1559, one Trower, a servant to the Master of Rolls, was ordered to attend, to answer for certain evil words spoken by him against the House. "He attends on the 17th, and is charged with saying, against the state of the House, 'That if a Bill were brought in for women's wyers in their pastes, they would dispute it and go to the question'; for which offence, though he denied the words, he is committed to the Serjeant's keeping." "Paste" is defined by the Standard Dictionary as: (1) A bridal wreath; (2) Lace, trimming, gimp. Apparently ours has not been the only age when lawmakers have been charged with contentious trifling.

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In 1586 Bland, a currier, was brought to the bar for using what were adjudged contumelious expressions against the House for something it had done in a matter of little moment. He was discharged by reason of his poverty, on making sub

1 Hatsell, Precedents, 1, 190.

mission and paying a fine of twenty shillings, thus getting off more lightly than Doctor Harris, parson of Blechingley, who toward the end of the reign of James I got into trouble by taking a hand in trying to elect Henry Lovell to Parliament. When the parson appeared before the Committee of Elections and Privileges, his testimony brought him a reprimand, whereupon he preached a sermon criticising the committee and charging the opposing witnesses with falsehood. On the ground, among other things, of "scandalizing the proceedings and justice of the said committee," he was obliged to confess his fault on his knees in the House, to be sharply admonished, and again to witness his fault on beginning his next sermon, "desiring the love of his neighbors and promising reformation." 1

Hatsell gives us a specimen of the epithets that cut to the quick: "On the 21st of February, 1628, one Burgess, who had called some of the Parliament men, 'Hell-hounds and Puritans,' is ordered to be presently sent for by the Serjeant; and a Warrant likewise for the parties that are witnesses against him." 2

Even the good name of previous Parliaments was protected. When, in 1614, Mr. Martin, counsel for the Virginia Company, in a speech at the bar of the House had offended it by "taxing" the last Parliament, he was brought to the bar and reprimanded by the Speaker, whereupon was made "a very humble submission."

13

These were all resentments of slander upon individual members or a committee or the House as a whole. Perhaps it was not until 1714 that anybody suffered for criticizing measures. Then Sir Richard Steele, the author, was expelled for writing articles in the "Crisis" and the "Englishman," "maliciously insinuating that the Protestant succession in the house of Hanover was in danger under Her Majesty's administration," the proceeding being, according to Lord Mahon, "a most fierce and unwarrantable stretch of party violence." For a considerable time, and especially during the reign of Anne, the House of Commons assumed a regular censorship over the press. Asgill was expelled on the pretext of an absurd book, "On the Possibility of Avoiding Death." Defoe was prosecuted by the House of Commons for his "Shortest Way with Dissenters." Tutchin, 1 John Glanville, Reports of Certain Cases, etc., 45. 2 Precedents, 1, 204. 3 Ibid., 1, 191.

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