the house to perform its high functions, and is necessary to the safety of the State. It is a power of protection. A member may be physically, mentally, or morally wholly unfit; he may be affected with a contagious disease, or insane, or noisy, violent, and disorderly, or in the habit of using profane, obscene, and abusive language." And, " independently of parliamentary customs and usages, our legislative houses have the power to protect themselves by the punishment and expulsion of a member;" and the courts cannot inquire into the justice of the decision, or even so much as examine the proceedings to see whether or not the proper opportunity for defence was furnished.1

Each house may also punish contempts of its authority by other persons, where they are committed in its presence, or where they tend directly to embarrass or obstruct its legislative proceedings; and it requires for the purpose no express provision of the constitution conferring the authority. It is not very well settled what are the limits to this power; and in the leading case in this country the speaker's warrant for the arrest of the person adjudged guilty of contempt was sustained, though it did not show in what the alleged contempt consisted. In the leading English case a libellous publication concerning the house was treated as a contempt; and punishment has sometimes been inflicted for assaults upon members of the house, not committed in or near the place of sitting, and for the arrest of members in disregard of their constitutional privilege.5

But in America the authority of legislative bodies in this regard is much less extensive than in England, and we are in danger, perhaps, of being misled by English precedents. The Parliament, before its separation into two bodies, was a high court of judicature, possessed of the general power, incident to such a court, of punishing contempts, and after the separation the power remained with each body, because each was considered to be a court of judicature and exercised the functions of such a court. American legislative bodies have not been clothed with the judicial function,

1 Hiss v. Bartlett, 3 Gray, 468. And see Anderson v. Dunn, 6 Wheat. 204.

2 Anderson v. Dunn, 6 Wheat. 204; Burdett v. Abbott, 14 East, 1; Burnham v. Morrissey, 14 Gray, 226; State v. Matthews, 37 N. H. 450. See post, p. 563, note.

8 Anderson v. Dunn, 6 Wheat. 204; questioned and rejected as to some of its reasoning in Kilbourn v. Thompson, 103 U. S. 168. And see Gosset ». Howard, 10

Q. B. 451; Stewart v. Blaine, 1 McAr thur, 453.

4 Burdett v. Abbott, 14 East, 1.

5 Mr. Potter discusses such a case in his edition of Dwarris on Statutes, c. 18, and Mr. Robinson deals with the case of an arrest for a criminal act, not committed in the presence of the house, in the preface to the sixth volume of his Practice. As to the general right of Parliament to punish for contempt, see Gosset v. Howard, 10 Q. B. 411.

and they do not therefore possess the general power to punish for contempt; but, as incidental to their legislative authority, they have the power to punish as contempts those acts of members or others which tend to obstruct the performance of legislative duty, or to defeat, impede, or embarrass the exercise of legislative power.1

When imprisonment 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.2

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; 5 and if the house neglect to interfere, the court from which the process issued

1 See the subject considered fully and learnedly in Kilbourn v. Thompson, 103 U. S. 168.

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

civil cases. Gentry v. Griffith, 27 Tex. 461; Case v. Rorabacher, 15 Mich. 537. So, of a member of Congress during the session. Merrick v. Giddings, MacAr. & Mack. 55. But in Miner v. Markham, 28 Fed. Rep. 387, a California member en route to Washington was held exempt from service of summons in Wisconsin.

4 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.

8 "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 8 Am. Dec. 189. the service of citations or declarations in

6 Coffin v. Coffin, 4 Mass. 27; s. c.

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 from the unlawful imprisonment.2

1 Courts do not, however, ex officio notice the privileges of members; they must be brought to their attention by some proper motion. Prentis v. Commonwealth, 5 Rand. 697; s. c. 16 Am. Dec. 782, and note.

5

Each house must also be allowed to proceed in its own way in the collection of such information as may seem important to a proper discharge of its functions,3 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 statute expressly permitted the house to punish for such contempt. But the priv ilege 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 punishment for failure to give information must be left to a jury, few convictions are to be expected, and no wholesome fear of the consequences of a refusal. The legality of the same arrest was considered afterwards by the federal Supreme Court, and was not sustained, the court

2 On this subject, Cushing on Law and Practice of Parliamentary Assemblies, §§ 546-597, will be consulted with profit. It is not a trespass to arrest a person privileged from arrest, even though the officer may be aware of the fact. The arrest is only voidable; and in general the party will waive the privilege unless he applies for discharge by motion or on habeas corpus. Tarlton v. Fisher, Doug. 671; Fletcher v. Baxter, 2 Aik. 224; Fox v. Wood, 1 Rawle, 143; Sperry v. Willard, 1 Wend. 32; Wilmarth v. Burt, 7 Met. 257; Aldrich v. Aldrich, 8 Met. 102; Chase . Fish, 16 Me. 132. But where the privilege is given on public grounds, or for the benefit of others, discharge may be obtained on the motion of any party concerned, or made by the court sua sponte.

8 See Tillinghast v. Carr, 4 McCord, holding that the house exceeded its au152.

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

5 In re Falvey, 7 Wis. 630; Burnham v. Morrissey, 14 Gray, 226; People v. Keeler, 99 N. Y. 463. In the last case a

thority in the attempted investigation. Kilbourn v. Thompson, 103 U. S. 168. On questions of conflict between the legisla ture 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.

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 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 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, 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,3 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.1

1 See cases cited in preceding note; also Prescott v. Trustees, &c., 19 Ill. 324; Koehler v. Hill, 60 Iowa, 543, 549.

2 Miller v. State, 3 Ohio St. 475; McCulloch v. State, 11 Ind. 424; Supervisors v. People, 25 Ill. 181; Hall v. Steele, 82 Ala. 562; Glidewell v. Martin, 11 S. W. Rep. 882 (Ark.); People v. Dunn, 22 Pac. Rep. 140 (Cal.); State v. Brown, 20 Fla. 407; Matter of Vanderberg, 28 Kan. 243; State v. Peterson, 38 Minn. 143; State v. Algood, 87 Tenn. 163; Hunt v. State, 22 Tex. App. 396. 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

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; Attorney-General v. Rice, 64 Mich. 385.

The Constitution of Alabama, art. 4, § 27, requires the presiding officer of each house, in the presence of the house, to sign acts "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 requirement. But in Colorado a like provision is held directory, and the presumption in case of silence of journal is in favor of the act. In re Roberts, 5 Col. 525. 3 See Wildey v. Collier, 7 Md. 273; Bryan . Reynolds, 5 Wis. 200; Brown v. Brown, 34 Barb. 533; Russell v. Burton, 66 Barb. 539.

4 This whole subject was very fully