25 May 2006

Joseph Story on Congressional Immunity

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President Bush intervened in the conflict between the Justice Department and Congress, ordering the material taken from Rep. William Jefferson’s office sealed for 45 days, obviously in order to provide time for judicial review.

The president deserves commendation for acting responsibly on the occasion of a conflict in the Constitutional balance between federal branches. I think myself that a number of usually extremely perspicacious commentators on the Right went off half-cocked on this one.

Readers will recall that the FBI searched Rep. Jefferson’s office on Saturday and Sunday, and that the US Constitution, Article 1, Section 6, says:

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be 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 shall not be questioned in any other place.


In evaluating these kinds of issue, I think that a good starting point is always Justice Joseph Story (Y 1798)’s Commentaries on the Constitution of the United States (1833).

On Article 1, Section 6, Justice Story decidedly notes the importance of legislative immunity :

§ 856. 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. It 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.

§ 857. This privilege from arrest, privileges them of course against all process, the disobedience to which is punishable by attachment of the person, such as a subpoena ad respondendum, aut testificandum, or a summons to serve on a jury; and (as has been justly observed) with reason, because a member has superior duties to perform in another place. When a representative is withdrawn from his seat by a summons, the people, whom he represents, lose their voice in debate and vote, as they do in his voluntary absence.

The legislative immunity in Britain, Story notes, was confined to intervals only modestly longer than the actual sessions of Parliament.

§ 858. The privilege of the peers of the British parliament to be free from arrest, in civil cases, is for ever sacred and inviolable. For other purposes, (as for common process,) it seems, that their privilege did not extend, but from the teste of the summons to parliament, and for twenty days before and after the session. But that period has now, as to all common process but arrest, been taken away by statute.

The privilege of the members of the house of commons from arrest is for forty days after every prorogation, and for forty days before the next appointed meeting, which in effect is as long, as the parliament lasts, it seldom being prorogued for more than four score days, at a time.

In case of a dissolution of parliament, it does not appear, that the privilege is confined to any precise time; the rule being, that the party is entitled to it for a convenient time, redeundo.

In today’s United States, when it ordinarily takes a year or more to go to trial, one would expect legislators to be able to claim very long intervals of immunity.

Even in Britain, Story notes, that Spirit of Modernity has tended to curtail the principle of legislative immunity short of the point where it might benefit the contents of Rep. Jefferson’s office.

§ 859. The privilege of members of parliament formerly extended also to their servants and goods, so that they could not be arrested. But so far, as it went to obstruct the ordinary course of justice in the British courts, it has since been restrained.

In the members of congress, the privilege is strictly personal, and does not extend to their servants or property.

Note that Justice Story accords Congress only a lower case “c.” The American principle of Republicanism was decidedly stronger and more keenly felt in 1833 than it is today, when presidents are accompanied routinely by a complement of bodyguards and functionaries the Sultan of Byzantium might envy. I think Justice Story’s observations are informative, as always, but I think an able attorney would not have the least difficulty in arguing either side of Rep. Jeffeson’s claim to the application of Article 1, Section 6 privileges to his office papers (and bags of currency).


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