Article 1, Section 6, Clause 1
[Volume 2, Page 342]
Joseph Story, Commentaries on the Constitution 2:§§ 849--631833
§ 849. In respect to compensation, there is, at present, a marked distinction between the members of the British parliament, and the members of congress; the former not being, at present, entitled to any pay. Formerly, indeed, the members of the house of commons were entitled to receive wages from their constituents; but the last known case is that of Andrew Marvell, who was a member from Hull, in the first parliament after the restoration of Charles the Second. Four shillings sterling a day used to be allowed for a knight of the shire; and two shillings a day for a member of a city or borough; and this rate was established in the reign of Edward the Third. And we are told, that two shillings a day, the allowance to a burgess, was so considerable a sum, in these ancient times, that there are many instances, where boroughs petitioned to be excused from sending members to parliament, representing, that they are engaged in building bridges or other public works, and, therefore, unable to bear so extraordinary an expense. It is believed, that the practice in America during its colonial state was, if not universally, at least generally, to allow a compensation to be paid to members; and the practice is believed to be absolutely universal, under the state constitutions. The members are not, however, always paid out of the public treasury; but the practice still exists, constitutionally, or by usage, in some of the states, to charge the amount of the compensation fixed by the legislature upon the constituents, and levy it in the state tax. That has certainly been the general course in the state of Massachusetts; and it was probably adopted from the ancient practice in England.
§ 850. Whether it is, on the whole, best to allow to members of legislative bodies a compensation for their services, or whether their services should be considered merely honorary, is a question admitting of much argument on each side; and it has accordingly found strenuous advocates, and opponents, not only in speculation, but in practice. [Volume 2, Page 343] It has been already seen, that in England none is now allowed, or claimed; and there can be little doubt, that public opinion is altogether in favour of their present course. On the other hand, in America an opposite opinion prevails among those, whose influence is most impressive with the people on such subjects. It is not surprising, that under such circumstances, there should have been a considerable diversity of opinion manifested in the convention itself. The proposition to allow compensation out of the public treasury, to members of the house of representatives, was originally carried by a vote of eight states against three; and to the senators by a vote of seven states against three, one being divided. At a subsequent period, a motion to strike out the payment out of the public treasury was lost by a vote of four states in the affirmative, and five in the negative, two being divided; and the whole proposition, as to representatives, was (as amended) lost by a vote of five states for it, and five against it, one being divided. And as to senators, a motion was made, that they should be paid by their respective states, which was lost, five states voting for it, and six against it; and then the proposition to pay them out of the public treasury was lost by a similar vote. At a subsequent period a proposition was reported, that the compensation of the members of both houses should be made by the state, in which they were chosen; and ultimately the present plan was agreed to by a vote of nine states against two. Such a fluctuation of opinion exhibits in a strong light the embarrassing considerations, which surrounded the subject.
§ 851. The principal reasons in favour of a compensation may be presumed to have been the following. In the first place, the advantage, it secured, of commanding the first talents of the nation in the public councils, by removing a virtual disqualification, that of poverty, from that large class of men, who, though favoured by nature, might not be favoured by fortune. It could hardly be expected, that such men would make the necessary sacrifices in order to gratify their ambition for a public station; and if they did, there was a corresponding danger, that they might be compelled by their necessities, or tempted by their wants, to yield up their independence, and perhaps their integrity, to the allurements of the corrupt, or the opulent. In the next place, it would, in a proportionate degree, gratify the popular feeling by enlarging the circle of candidates, from which members might be chosen, and bringing the office within the reach of persons in the middle ranks of society, although they might not possess shining talents; a course best suited to the equality found, and promulgated in a republic. In the next place, it would make a seat in the national councils, as attractive, and perhaps more so, than in those of the state, by the superior emoluments of office. And in the last place, it would be in conformity to a long and well settled practice, which embodied public sentiment, and had been sanctioned by public approbation.
§ 852. On the other hand, it might be, and it was, probably, urged against it, that the practice of allowing compensation was calculated to make the office rather more a matter of bargain and speculation, than of high political ambition. It would operate, as an inducement to vulgar and groveling demagogues, of little talent, and narrow means, to defeat the claims of higher candidates, than themselves; and with a view to the compensation alone to engage in all sorts of corrupt intrigues to procure their own election. It would thus degrade these high trusts from being deemed the reward of distinguished merit, and strictly honorary, to a mere traffic for political office, which would first corrupt the people at the polls, and then subject their liberties to be bartered by their venal candidate. Men of talents in this way would be compelled to degradation, in order to acquire office, or would be excluded by more unworthy, or more cunning candidates, who would feel, that the labourer was worthy of his hire. There is no danger, that the want of compensation would deter men of suitable talents and virtues, even in the humbler walks of life, from becoming members; since it could scarcely be presumed, that the public gratitude would not, by other means, aid them in their private business, and increase their just patronage. And if, in a few cases, it should be otherwise, it should not be forgotten, that one of the most wholesome lessons to be taught in republics was, that men should learn suitable economy and prudence in their private affairs; and that profusion and poverty were, with a few splendid exceptions, equally unsafe to be entrusted with the public rights and interests, since, if they did not betray, they would hardly be presumed willing to protect them. The practice of England abundantly showed, that compensation was not necessary to bring into public life the best talents and virtues of the nation. In looking over her list of distinguished statesmen, of equal purity and patriotism, it would be found, that comparatively few had possessed opulence; and many had struggled through life with the painful pressure of narrow resources, the res augustae domi.
§ 853. It does not become the commentator to say, whether experience has as yet given more weight to the former, than to the latter reasons. Certain it is, that the convention, in adopting the rule of allowing a compensation, had principally in view the importance of securing the highest dignity and independence in the discharge of legislative functions, and the justice, as well as duty of a free people, possessing adequate means, to indemnify those, who were employed in their service, against all the sacrifices incident to their station. It has been justly observed, that the principle of compensation to those, who render services to the public, runs through the whole constitution.
§ 854. 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 constitutents 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 constitutents, 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 [Volume 2, Page 344] 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.
§ 855. The only practical question, which seems to have been farther open upon this head, is, whether the compensation should have been ascertained by the constitution 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. There is no danger, that it will ever become excessive, without exciting general discontent, and then it will soon be changed from the reaction of public opinion. The danger rather is, that public opinion will become too sensitive upon this subject; and refuse to allow any addition to what may be at the time a very moderate allowance. In the actual practice of the government, this subject has rarely been stirred without producing violent excitements at the elections. This alone is sufficient to establish the safety of the actual exercise of the power by the bodies, with which it is lodged, both in the state and national legislatures. It is proper, however, to add, that the omission to provide some constitutional mode of fixing the pay of members of congress, without leaving the subject to their discretion, formed in some minds a strong objection to the constitution.
§ 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 superiour 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. When a senator is withdrawn by summons, his state loses half its voice in debate and vote, as it does in his voluntary absence. The enormous disparity of the evil admits of no comparison. The privilege, indeed, is deemed not merely the privilege of the member, or his constituents, but the privilege of the house also. And every man must at his peril take notice, who are the members of the house returned of record.
§ 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.
§ 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. It is also, in all cases confined to a reasonable time, eundo, morando, et redeundo, instead of being limited by a precise number of days. It was probably from a survey of the abuses of privilege, which for a long time defeated in England the purposes of justice, that the constitution has thus marked its boundary with a sedulous caution.
§ 860. 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.
§ 861. 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 [Volume 2, Page 345] directed it. The privilege from arrest takes place by force of the election, and before the member has taken his seat, or is sworn.
§ 862. 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.
§ 863. 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 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.
Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.
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