§ 433. If it be proper to allow a compensation for services to the members of congress, there seems the utmost propriety in its being paid out of the public treasury of the United States. The labour is for the benefit of the nation, and it should properly be remunerated by the nation. Besides; if the compensation were to be allowed by the states, or by the constituents of the members, if left to their discretion, it might keep the latter in a state of slavish dependence, and might introduce great inequalities in the allowance. And if it were to be ascertained by congress, and paid by the constituents, there would always be danger, that the rule would be fixed to suit those, who were the least enlightened, and the most parsimonious, rather than those, who acted upon a high sense of the dignity and the duties of the station. Fortunately, it is left for the decision of congress. The compensation is "to be ascertained by law ;" and never addresses itself to the pride, or the parsimony, the local prejudices, or local habits of any part of the Union. It is fixed with a liberal view to the national duties, and is paid from the national purse. If the compensation had been left, to be fixed by the state legislature, the general government would have become dependent upon the governments of the states; and the latter could almost, at their pleasure, have dissolved it. Serious evils were felt from this source under the confederation, by which each state was to maintain its own delegates in congress; for it was found, that the states too often were operated upon by local considerations, as contradistinguished from general and national interests.

§ 434. The only practical question, which seems to have been farther open upon this head, is, whether the compensation should have been ascertained by the con

stitution itself, or left, (as it now is,) to be ascertained from time to time by congress. If fixed by the constitution, it might, from the change of the value of money, and the modes of life, have become too low, and utterly inadequate. Or it might have become too high in consequence of serious changes in the prosperity of the nation. It is wisest, therefore, to have it left, where it is, to be decided by congress from time to time, according to their own sense of justice, and a large view of the national resources.

It

§ 435. The next part of the clause regards the privilege of the members from arrest, except for crimes, during their attendance at the sessions of congress, and their going to, and returning from them. This privilege is conceded by law to the humblest suitor and witness in a court of justice; and it would be strange, indeed, if it were denied to the highest functionaries of the state in the discharge of their public duties. belongs to congress in common with all other legislative bodies, which exist, or have existed in America, since its first settlement, under every variety of government; and it has immemorially constituted a privilege of both houses of the British parliament. It seems absolutely indispensable for the just exercise of the legislative power in every nation, purporting to possess a free constitution of government; and it cannot be surrendered without endangering the public liberties, as well as the private independence of the members.

§ 436. The effect of this privilege is, that the arrest of the member is unlawful, and a trespass ab initio, for which he may maintain an action, or proceed against the aggressor by way of indictment. He may also be discharged by motion to a court of justice, or upon a writ

of habeas corpus; and the arrest may also be punished, as a contempt of the house.

§ 437. In respect to the time of going and returning, the law is not 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. Nor does it nicely scan his road, nor is his protection forfeited, by a little deviation from that, which is most direct; for it is supposed, that some superior convenience or necessity directed it. The privilege from arrest takes place by force of the election, and before the member has taken his seat, or is

sworn.

§ 438. The exception to the privilege is, that it shall not extend to "treason, felony, or breach of the peace." These words are the same as those, in which the exception to the privilege of parliament is usually expressed at the common law, and was doubtless borrowed from that source. Now, as all crimes are offences against the peace, the phrase "breach of the peace would seem to extend to all indictable offences, as well those, which are, in fact, attended with force and violence, as those, which are only constructive breaches of the peace of the government, inasmuch as they violate its good order. And so in truth it was decided in parliament, in the case of a seditious libel, published by a member, (Mr. Wilkes,) against the opinion of Lord Camden and the other judges of the Court of Common Pleas; and, as it will probably now be thought, since the party spirit of those times has subsided, with entire good sense, and in furtherance of public justice. It would be monstrous, that any member should protect himself from arrest, or punishment for a libel, often a crime of the deepest malignity and mischief, while he

would be liable to arrest for the pettiest assault, or the most insignificant breach of the peace.

§ 439. The next great and vital privilege is the freedom of speech and debate, without which all other privileges would be comparatively unimportant, or ineffectual. This privilege also is derived from the practice of the British parliament, and was in full exercise in our colonial legislatures, and now belongs to the legislature of every state in the Union, as matter of constitutional right. In the British parliament it is a claim of immemorial right, and is now farther fortified by an act of parliament; and it is always particularly demanded of the king in person by the speaker of the house of commons, at the opening of every new parliament. But this privilege is strictly confined to things done in the course of parliamentary proceedings, and does not cover things done beyond the place and limits of duty. Therefore, although a speech delivered in the house of commons is privileged, and the member cannot be questioned respecting it elsewhere; yet, if he publishes his speech, and it contains libellous matter, he is liable to an action and prosecution therefor, as in common cases of libel. And the same principles seem applicable to the privilege of debate and speech in congress. No man ought to have a right to defame others under colour 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. It is neither within the scope of his duty, nor in furtherance of public rights, or public policy. Every citizen has as good a right to be protected by the laws from malignant scandal, and false charges, and defamatory

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imputations, as a member of congress has to utter them in his seat. If it were otherwise, a man's character might be taken away without the possibility of redress, either by the malice, or indiscretion, or overweaning self-conceit of a member of congress. It is proper,

however, to apprise the learned reader, that it has been recently denied in congress by very distinguished lawyers, that the privilege of speech and debate in congress does not extend to publication of his speech. And they ground themselves upon an important distinction arising from the actual differences between English and American legislation. In the former, the publication of the debates is not strictly lawful, except by license of the house. In the latter, it is a common right, exercised and supported by the direct encouragement of the body. This reasoning deserves a very attentive examination.

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§ 440. The next clause regards the disqualifications of members of congress; and is as follows: "No senator or representative shall, during the time, for which "he was elected, be appointed to any civil office under "the authority of the United States, which shall have "been created, or the emoluments whereof shall have "been increased, during such time. And no person, holding any office under the United States, shall be "a member of either house of congress during his con"tinuance in office." This clause does not appear to have met with any opposition in the convention, as to the propriety of some provision on the subject, the principal question being, as to the best mode of expressing the disqualifications. It has been deemed by one commentator an admirable provision against venality, though not perhaps sufficiently guarded to prevent evasion. And it has been elaborately vindicated by