The report of the Hon. Howell Cobb and Hon. A. B. Greenwood, the minority of the committee of the House of Representatives, appointed to investigate the facts touching the assault by one of its members on a member of the Senate, is a long but able document, and sets forth very clearly, the privileges of the House and the Senate as well as their respective members, and the authority the House has to punish one of its own members for a violation of the privilege of a member of the Senate. We quote as follows:
The first allegation is that the privilege of Mr. Sumner has been violated in this: that he has been questioned for the delivery of a speech in the Senate, in violation of that provision of the constitution which declares that “for any speech or debate in either House, they shall not be questioned in any other place.” This provision of the constitution was evidently intended to protect members of Congress from such legal liability as they might incur for words spoken in debate in their respective houses. It can hardly be supposed that the constitution was providing against a mode of questioning which in itself, even without such provision, would have not only been unauthorized by law, but in direct violation of the criminal law of the land. It is far from being settled that this immunity from responsibility goes to the extent claimed for it by those from whom we differ in this matter.
If members of Congress seek this shield and protection which the constitution gives them, is it an onerous condition imposed upon them that their speech shall be proper and legitimate in the discharge of their constitutional duty? Ought they to be permitted to avail themselves of the position given them by a confiding constituency to indulge in language and reflections in no wise necessary for the discharge of their official duty, nor promotive of the public good? And, even granting this right to the fullest extent, and they go beyond this exercise of speech or debate, and afterwards publish and circulate, in pamphlet form, libelous matter under the pretext that it is in this published form privileged speech or debate in Congress? Even the British Parliament, with all its disposition to protect its members, and, under the doctrine of privilege, to extend to them powers and immunities, refused to extend the doctrine beyond the strict limits of debate upon the floor of Parliament. The language of our constitution in this respect is drawn from the parliamentary law, and we suppose it will not be contended that our members of Congress have greater latitude in this respect from the members of the British Parliament.
Here the report quotes from Justice Story’s work on the Constitution, in support of their view. Judge S. says:
“Although a speech is 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 libelous matter, he is liable to an action and prosecution therefore, 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 color of 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 peace of other citizens. It is neither within the scope of his public duty nor in furtherance of public rights or public policy. Ever Citizen has 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 malice of indiscretion or overweening self-conceit of a member of Congress.”
We again quote from the report:
“The only provision of the Constitution under which the power can be exercised, on which the majority of our committee have relied, is the one already quoted, which declares that ‘each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.’
It is a question which has been much discussed, and one which it is important to decide correctly. To what extent is the power given to the two houses by this provision of the constitution to punish their members? Taking the whole paragraph in its connected sense, it seems to us that it has reference to the House while in session in the actual discharge of its constitutional duties. The power of providing rules for its proceedings, it will be seen, is coupled in that same sentence with the power to punish its members for disorderly behavior, and the power with the concurrence of two-thirds, to expel a member. If it had been contemplated that the power conferred in this provision were to be exercised to the extent now claimed for them, they would hardly have been placed in such intimate connexion with the simple power of providing rules for the proceedings of the two houses. We entertain no doubt that the whole of this provision looks to the session of the House, to the providing of rules for its proceedings during its sessions, to punishing its members for such disorderly conduct as would interrupt its session, and, where that conduct amounted to such an outrage upon the rules and proprieties of the House as would justify it, to expel the member.
To place any other construction upon this provision would be to make the members of each house, and their moral conduct and deportment, subject to the whim caprice and discretion of a majority of the body. Extend it beyond the presence of the session of the house and it becomes an unlimited power, operative not lonely during the session of Congress, but during the recess; to be exercised not only in reference to the conduct of members when in Washington city or in the District of Columbia, but when they have returned to their respective homes, and even when they have gone beyond the limits of the country. When you have passed the limits which are her laid down, there is no other boundary short of Congressional discretion. And we cannot believe that it was the intention of the framers of the constitution to place the moral conduct and deportment of members of the two houses of Congress under the control and discretion of a majority of either house.
The report, in conclusion, contends that there has been no violation in this case of the privileges of either House of Congress, or any member thereof, over which the House has jurisdiction. Whatever offence may have been committed, it says, is properly cognizable before the courts of the country, and it proposed to dismiss the subject to that jurisdiction provided by the constitution and laws of the country for its investigation.
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