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113. The Senators and Representatives receive a compensation for their services, ascertained by law, and paid out of the Treasury of the United States.
114. In England, the members of Parliament receive no compensation; their services being considered merely honorary. It seems, however, to harmonize best with the genius of a republican government to adopt the contrary practice. Without compensation an undue advantage would be given to the rich. Men of talents, who were not favored by fortune, might be deterred from seeking or accepting a position whose expenses they could ill support. And, if they did obtain a seat in the national councils, their necessities might expose them to pecuniary temptations.
115. The Congress of the Confederation were paid by their respective states; but the Senators and Representatives under the Constitution are paid out of the Treasury of the United States—the amount being
determined by an act of Congress. Under the first system it was thought the members of Congress were too much the mere agents and advocates of state interests, instead of being the impartial umpires and guardians of justice and the general good. To avoid this evil, to prevent too much dependence on the states, the Constitution changed the mode of payment from the states to the United States.
Freedom from Arrest.
116. The Senators and Representatives are, in all cases, except treason, felony, and breach of the peace, 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 are not to be questioned in any other place.
117. The privilege of members of Congress from arrest, except for the offences mentioned in the preceding section, is founded upon important public reasons. They are exempted while going, because it is necessary that they should reach the scene of their labors; they are exempted while there, because if they could be withdrawn from their seats at the suit of creditors, or by any other merely civil process, such as a summons to testify as witnesses, or to serve as jurors, the voice of their constituents would be lost, and the public interests, perhaps, suffer serious inconvenience; they are exempted while returning, because, having gone from home in the . service of the public, it is proper that the public should insure their return to it safe from interruption. 118. It has also been held that this privilege from arrest extends to one duly commissioned as a member, though Congress should decide, upon investigation, that he is not entitled to a seat. In going and returning a member is not restricted to a precise number of days, but the law allows him a reasonable time. Nor is he restricted to the most direct route, and any little deviation from it will be presumed to have been directed by some superior convenience or necessity. Neither does the law compel him to set out on his return immediately upon the adjournment; but allows him time to settle his private affairs, and to prepare for his journey. 119. If the immunity from arrest is disregarded, the member thus unlawfully arrested will at once be discharged on application to a court of justice. He may also maintain an action against the party making the arrest, or procure his indictment for the trespass. The aggressor may also be punished by the House for contempt. But the privileges of a member are not so extensive that his suits cannot be forced to a trial and decision while the session of Congress continues. While privileged from arrests both on judicial and mesne process, and from the
service of a summons or other civil process while in attendance on their public duties, none of the reasons on which this privilege is allowed can extend it to the right to continue a cause pending in court.
Immunity of Debate.
120. For any speech or debate in either house, the members are not to be questioned in any other place. The object of this clause is to secure the utmost freedom in the discussion of public measures. It is a moot question, however, whether a member, who publishes his speech which contains libellous matter, is liable to an action and prosecution therefor, as in common cases of libel? Though a member may not be questioned elsewhere for any slander he may utter in debate, it is contended that the publication of such slander is an independent act, not at all connected with the discharge of his duties, and not protected by the privilege granted him by the Constitution. But where Congress direct the publication of their debates, as is at present the case, the responsibility of the individual member would seem clearly to cease, because the publication of his speech is not his act, but the act of the body to which he belongs.
Disability to hold Office.
121. No Senator or Representative can, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which has been created, or the emoluments whereof have been increased, during such time. And no person, holding any office under the United States, can be a member of either House of Congress during his continuance in office.
122. It was intended by the first part of this clause to prevent Congress from creating new offices or increasing the emoluments of old ones from personal considerations; and by the second part to guard against improper bias on the part of its members. Hence, a member of Congress appointed to an office under the United States, must resign his seat. If he accepts the office without such resignation, it operates as a forfeiture of his seat. On the other Thand, an officer of the United States, if elected a member of Congress, must resign his office, though his continuing to execute its duties after his election does not operate as a disqualification; it only being necessary that he should resign his office prior to taking his seat. In other words, a person cannot at the same time be a member of Congress and hold office under the United States. The acceptance of a military commission in a volunteer regiment, mustered into the service of the United States, operates as a forfeiture of his seat.