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is imposed as a punishment, it must terminate with the final adjournment of the house, and if the prisoner be not then discharged by its order, he may be released on habeas corpus.1

By common parliamentary law, the members of the legislature are privileged from arrest on civil process during the session of that body, and for a reasonable time before and after, to enable them to go to and return from the same. By the constitutions of some of the States this privilege has been enlarged, so as to exempt the persons of legislators from any service of civil process, and in others their estates are exempt from attachment for some prescribed period. For any arrest contrary to the parliamentary law or to these provisions, the house of which the person arrested is a member may give summary relief by ordering his discharge, and if the order is not complied with, by punishing the persons concerned in the arrest as for a contempt of its authority. The remedy of the member, however, is not confined to this mode of relief. His privilege is not the privilege of the house merely, but of the people, and is conferred to enable him to discharge the trust confided to him by his constituents; and if the house neglect to interfere, the court from which the process issued should set it aside on the facts being represented, and any court. or officer having authority to issue writs of habeas corpus

may also inquire into the case, and release the party [* 135] from the unlawful imprisonment."

Each house must also be allowed to proceed in its own way in

1 Jefferson's Manual, § 18; Prichard's Case, 1 Lev. 165; 1 Sid. 245; T. Raym. 120.


Senators and representatives shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest. They shall not be subject to any civil process during the session of the legislature, or for fifteen days next before the commencement and after the termination of each session." Const. of Mich. art. 4, § 7. A like exemption from civil process is found in the Constitutions of Kansas, Nebraska, Alabama, Arkansas, California, Missouri, Mississippi, Wisconsin, Indiana, Oregon, and Colorado. Exemption from arrest is not violated by the service of citations or declara

tions in civil cases. Gentry v. Griffith, 27 Tex. 461; Case v. Rorabacker, 15 Mich. 537.

8 The Constitution of Rhode Island provides that "the person of every member of the General Assembly shall be exempt from arrest, and his estate from attachment, in any civil action, during the session of the General Assembly, and two days before the commencement and two days after the termination thereof, and all process served contrary hereto shall be void." Art. 4, § 5.

4 Coffin v. Coffin, 4 Mass. 27.

5 On this subject, Cushing on Law and Practice of Parliamentary Assemblies, §§ 546-597, will be consulted with profit.

the collection of such information as may seem important to a proper discharge of its functions, and whenever it is deemed desirable that witnesses should be examined, the power and authority to do so is very properly referred to a committee, with any such powers short of final legislative or judicial action as may seem necessary or expedient in the particular case. Such a committee has no authority to sit during a recess of the house which has appointed it, without its permission to that effect; but the house is at liberty to confer such authority if it see fit. A refusal to appear or to testify before such committee, or to produce books or papers, would be a contempt of the house; but the committee cannot punish for contempts; it can only report the conduct of the offending party to the house for its action. The power of the committee will terminate with the final dissolution of the house appointing it.

Each house keeps a journal of its proceedings, which is a public record, and of which the courts are at liberty to take judicial notice. If it should appear from these journals that any act did

1 See Tillinghast v. Carr, 4 Mc- ishment for failure to give informaCord, 152.

2 Branham v. Lange, 16 Ind. 497; Marshall v. Harwood, 7 Md. 466. See also parliamentary cases, 5 Gray, 374; 9 Gray, 350; 1 Chandler, 50.

3 In re Falvey, 7 Wis. 630; Burnham v. Morrissey, 14 Gray, 226. But the privilege of a witness to be exempt from a compulsory disclosure of his own criminal conduct is the same when examined by a legislative body or committee as when sworn in court. Emery's Case, 107 Mass. 172. In the Matter of Kilbourn (May, 1876), Chief Justice Carter, of the Supreme Court of the District of Columbia, discharged on habeas corpus a person committed by the House of Representatives for a contempt in refusing to testify; holding that as the refusal was an indictable offence by statute, a trial therefor must be in the courts, and not elsewhere. If this is correct, the necessities of legislation will require a repeal of the statute; for if, in political cases, the question of pun

tion must be left to a jury, few convictions are to be expected, and no wholesome fear of the consequences of a refusal. On questions of conflict between the legislature and the courts in matters of contempt, the great case of Stockdale v. Hansard, 9 Ad. & El. 1, s. c. 3 Per. & Dav. 330, is of the highest interest. See May, Const.

Hist. c. 7.

Spangler v. Jacoby, 14 Ill. 297; Turley v. Logan Co., 17 Ill. 151; Jones v. Hutchinson, 43 Ala. 721; State v. Moffit, 5 Ohio, 358; Miller v. State, 3 Ohio, N. s. 475; Fordyce v. Godman, 20 Ohio, N. s. 1; People v. Supervisors of Chenango, 8 N. Y. 317; People v. Mahaney, 13 Mich. 481; Southwark Bank v. Commonwealth, 2 Penn. St. 446; McCulloch v. State, 11 Ind. 430; Osborn v. Staley, 5 W. Va. 85; s. c. 17 Am. Rep. 28; State v. Platt, 2 S. C. N. s. 150; s. c. 16 Am. Rep. 647; Moody v. State, 48 Ala. 115; Gardner v. The Collector, 6 Wall. 499; South Ottawa

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not receive the requisite majority, or that in respect to it the legislature did not follow any requirement of the constitution, or that in any other respect the act was not constitutionally adopted, the courts may act upon this evidence, and adjudge the statute void. But whenever it is acting in the apparent performance of legal functions, every reasonable presumption is to be made in favor of the action of a legislative body; it will not be presumed in any case, from the mere silence of the journals, that either house has exceeded its authority, or disregarded a *constitutional requirement in the passage of legislative [* 136] acts, unless where the constitution has expressly required

the journals to show the action taken, as, for instance, where it requires the yeas and nays to be entered.2

The law also seeks to cast its protection around legislative sessions, and to shield them against corrupt and improper influences, also Prescott v. Trustees, &c., 19 Ill.

r. Perkins, 94 U. S. Rep. 260. The presumption always is, when the act, as signed and enrolled, does not show the contrary, that it has gone through all necessary formalities; but this presumption may be overthrown by the journals. Berry r. Baltimore, &c. R. R. Co., 41 Md. 446; 8. c. 20 Am. Rep. 69; Green v. Weller, 32 Miss. 650. And see Opinions of Justices, 52 N. H. 622; Hensoldt Petersburg, 63 Ill. 157; Larrison v. Peoria, &c. R. R. Co., 77 I. 12; People v. Commissioners of Highways, 54 N. Y. 276; English v. Oliver, 28 Ark. 317; State v. Swift, 10 Nev. 176. In a few States the ruling is contra. See Sherman v. Story, 30 Cal. 253; People v. Burt, 43 Cal. 560; Louisiana Lottery Co. v. Richoux, 23 La. Ann. 743; s. c. 8 Am. Rep. 602; Blessing v. Galveston, 42 Tex. 641. It has been held that where the constitution requires previous notice of an application for a private act, the courts cannot go behind the act to inquire whether the notice was given. Brodnax v. Groom, 64 N. C. 244. See People v. Hurlbut, 24 Mich. 44; Day v. Stet. son, 8 Me. 365.

1 See cases cited in preceding note;



2 Miller v. State, 3 Ohio, N. 475; McCulloch v. State, 11 Ind. 424; Supervisors v. People, 25 Ill. 181. But where a statute can only be enacted by a certain majority, e. g. two-thirds, it must affirmatively appear by the printed statute or the act on file that such a vote was had. People v. Commissioners of Highways, 54 N. Y. 276. It seems that, in Illinois, if one claims that a supposed law was never passed, and relies upon the records to show it, he must prove them. Illinois Cent. R. R. Co. v. Wren, 43 Ill. 77; Grob v. Cushman, 45 Ill. 119; Bedard v. Hall, 44 Ill. 91. The court will not act upon the admission of parties that an act was not passed in the constitutional manner. Happel v. Brethauer, 70 Ill. 166.

The Constitution of Alabama, art. 4, § 27, requires the presiding officer of each house, in the presence of the house, to sign them "after the titles have been publicly read immediately before signing, and the fact of signing shall be entered on the journal.” This seems a very imperative require


by making void all contracts which have for their object to influence legislation in any other manner than by such open and public presentation of facts, arguments and appeals to reason as are recognized as proper and legitimate with all public bodies. While counsel may be properly employed to present the reasons in favor of any public measure to the body authorized to pass upon it, or to any of its committees empowered to collect facts and hear arguments, and parties interested may lawfully contract to pay for this service,1 yet to secretly approach the members of such a body with a view to influence their action at a time and in a manner that do not allow the presentation of opposite views, is improper and unfair to the opposing interest; and a contract to pay for this irregular and improper service would not be enforced by the law.2

1 See Wildey v. Collier, 7 Md. 273; Bryan v. Reynolds, 5 Wis. 200; Brown v. Brown, 34 Barb. 533; Russell v. Burton, 66 Barb. 539.

2 This whole subject was very fully considered in the case of Frost v. Inhabitants of Belmont, 6 Allen, 152, which was a bill filed to restrain the payment by the town of demands to the amount of nearly $9,000, which the town had voted to pay as expenses in obtaining their act of incorporation. By the court, Chapman, J.: “ It is to be regretted that any persons should have attempted to procure an act of legislation in this Commonwealth, by such means as some of these items indicate. By the regular course of legislation, organs are provided through which any parties may fairly and openly approach the legislature, and be heard with proofs and arguments respecting any legislative acts which they may be interested in, whether public or private. These organs are the various committees appointed to consider and report upon the matters to be acted upon by the whole body. When private interests are to be affected, notice is given of the hearings before these committees; and thus opportunity is given to adverse parties to meet face to face and

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obtain a fair and open hearing. And though these committees properly dispense with many of the rules which regulate hearings before judicial tribunals, yet common fairness requires that neither party shall be permitted to have secret consultations, and exercise secret influences that are kept from the knowledge of the other party. The business of lobby members' is not to go fairly and openly before the committees, and present statements, proofs, and arguments that the other side has an opportunity to meet and refute, if they are wrong, but to go secretly to the members and ply them with statements and arguments that the other side cannot openly meet, however erroneous they may be, and to bring illegitimate influences to bear upon them. If the

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*The Introduction and Passage of Bills.

[* 137]

Any member may introduce a bill in the house to which he belongs, in accordance with its rules; and this he may do

cases. They are disqualified from acting fairly towards interested parties or towards the public. The tendency and object of these influences are to obtain by corruption what it is supposed cannot be obtained fairly.

"It is a well-established principle, that all contracts which are opposed to public policy, and to open, upright, and fair dealing, are illegal and void. The principle was fully discussed in Fuller v. Dame, 18 Pick. 472. In several other States it has been applied to cases quite analogous to the present case.

"In Pingrey v. Washburn, 1 Aik. 261, it was held in Vermont that an agreement, on the part of a corporation, to grant to individuals certain privileges in consideration that they would withdraw their opposition to the passage of a legislative act touching the interests of the corporation, is against sound policy, prejudicial to just and correct legislation, and void. In Gulick v. Ward, 5 Halst. 87, it was decided in New Jersey that a contract which contravenes an act of Congress, and tends to defraud the United States, is void. A. had agreed to give B. $100, on condition that B. would forbear to propose or offer himself to the Postmaster-General to carry the mail on a certain mail route, and it was held that the contract was against public policy and void. The general principle as to contracts contravening public policy was discussed in that case at much length. In Wood v. McCann, 6 Dana, 366, the defendant had employed the plaintiff to assist him in obtaining a legislative act in Kentucky legalizing his divorce from a former wife, and his marriage with his present wife.

The court say: 'A lawyer may be entitled to compensation for writing a petition, or even for making a public argument before the legislature or a committee thereof; but the law should not hold him or any other person to a recompense for exercising any personal influence in any way, in any act of legislation. It is certainly important to just and wise legislation, and therefore to the most essential interests of the public, that the legislature should be perfectly free from any extraneous influence which may either corrupt or deceive the members, or any of them.'

"In Clippinger v. Hepbaugh, 5 Watts & S. 315, it was decided in Pennsylvania that a contract to procure or endeavor to procure the passage of an act of the legislature by using personal influence with the members, or by any sinister means, was void, as being inconsistent with public policy and the integrity of our political institutions. And an agreement for a contingent fee to be paid on the passage of a legislative act was held to be illegal and void, because it would be a strong incentive to the exercise of personal and sinister influences to effect the object.

"The subject has been twice adjudicated upon in New York. In Harris v. Roof, 10 Barb. 489, the Supreme Court held that one could not recover for services performed in going to see individual members of the house, to get them to aid in voting for a private claim, the services not being performed before the house as a body nor before its authorized committees. In Sedgwick v. Stanton, 4 Kernan, 289, the court of appeals held the same doctrine, and stated its proper

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