Abbildungen der Seite
PDF
EPUB

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 eleswhere, 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 color 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 apprize the learned reader that it has been recently denied in Congress, by very distinguished lawyers, that the privilege of speech and debate in Con

gress does not extend to the 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." Though I concur to some extent with the opinion here expressed, I am entirely at loss to perceive the importance of the distinction upon which a contrary opinion is founded. A member of parliament has no right to publish his speech, unless licensed to do so, nor has a member of Congress a right to publish his if prohibited to do so. The power to license in the one case exists for the same reason as the power of prohibition in the other-namely, to prevent the exposure of measures for the success of which secrecy is necessary. Therefore, in licensing in the one case, or prohibiting in the other, it seems the only question for consideration is, whether it conflicts with state policy, and not whether it contains libellous matter. Moreover, simply as a libel, the speech would not conflict with those interests of which either house of Congress are the constituted guardians, but with that good order of society of which the courts are more properly the guardians. But even admitting the full importance of the distinction, it can only be of force against the opinion so far as it rests upon British precedent. But this is not its only support. It has still the stouter props of reason and justice, and is firmly based on the Constitution itself. The object of this privilege was undoubtedly the public good, or benefit

of the represented. Where, then, it conflicts with its object, the reason for it ceases, and the maxim of the common law, cessante ratione, cessat et ipsa lex, reasonably applies. Not, however, because it is common law, but because it is also a maxim of common sense, and applied by the Constitution itself to the privilege from arrest. This a privilege of equal importance with that under consideration, and for the same ultimate object—namely, the public good. Yet breach of the peace is made an exception to that privilege upon the sole ground that in such cases the privilege would conflict with its object. If the exception is justifiable in this case, why is it not also in the other? It is unreasonable to confer two privileges for the same object, making exceptions to the one when it conflicts with that object, and not likewise to the other. Upon this ground, breach of the peace is as well an exception to the privilege under consideration, as it is to the privilege from arrest. Upon a libellous speech, therefore, as a breach of the peace, an indictment may be sustained. Libel, it is true, is only a constructive breach, but not for that reason less prejudicial to the good order of society as it exists in America. It would indeed be inconsistent with the spirit of our institutions to construe some things as breaches of the peace, regarded as such by the common law. But surely libel is not of this character. It is not so construed, as some things are, because prejudicial to arbitrary and monarchial institutions-but because it is opposed to truth, morality, and religion, and at war with just and reasonable constitutions of society. It is often an offence of the darkest dye, of irremediable mischief, of deep malignity, and

justly regarded as the meanest, and at the same time among the most diabolical of crimes. Who that regards truth, loves his country, and esteems its Constitution, can consistently say it confers a privilege to commit such crimes?

In concluding this examination of the powers of the separate houses, and the privileges of their members, it would be improper to pass entirely unnoticed an important question which has grown out of them— one which has excited, both for the affirmative and negative, the full power of reason, and aroused the mightiest energies of eloquence. A question, the importance of which demands its examination, involving, as I humbly conceive, the independence of the legislature, and therefore the public liberties. The question is have each house the power to protect themselves and their members in the enjoyment of their privileges?

In the immediately preceding pages these privileges have been shown to be vitally essential to the independence of the legislature. This is a conclusion which at present is unquestionable. If, then, the two houses are dependent for the enjoyment of them or any other department of the government, they are made thereby subordinate to that department, or (if allowed the expression) dependent on it for their independence. To escape the absurdity of such a conclusion, I answer to the question affirmatively. So the supreme court of the United States has answered, the Senate also, and the House of Representatives. With such an argument and such authority to support this conclusion, I deem its further examination unnecessary,

notwithstanding the trouble and occasions of excitement it has produced, and the different opinion entertained of it by some considered "very distinguished lawyers."

MANNER OF PASSING LAWS.

THE seventh section of the 1st art., confers powers solintimately blended with the Constitution of the le islature, that it is proper to examine them in that conection. The first clause provides, "All bills for rais ng revenue shall originate in the House of Representatives; but the Senate shall propose or concur with aniendments, as on other bills." This, though not in exact conformity with, was doubtless suggested by the practice of England. It is the ancient and indisp ble privilege of the House of Commons to originate all bills technically terme money bills. By the influence of this power the people of England have been raised from a state of vassalage to the king and nobles, and exalted to be the supreme power of the state. The lords being a permanent hereditary body, and from the manner of their Constitution particularly subject to be influenced by the crown, they have very properly been divested of all power over taxation, except merely of confirming and rejecting. In this country both branches of the legislature possessing a common interest with the people, it was unnecessary, and, from the peculiarity of our Constitution, would have been improper to exclude the Senate from all participation in the power of taxation. Direct taxes are to be ap

« ZurückWeiter »