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Subject Area: Law
Topic: The American Revolution and Constitution

§ 20.: Privilege of legislators.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 20.

Privilege of legislators.—

In order that the legislator may, in the performance of his official duties, feel himself free from all restraining influences and able to act without fear or favor of anyone whatsoever, it is usually provided by a constitutional clause that he shall not be subjected elsewhere to any legal liability for any statement he may have made in speech or debate.2 Inasmuch as this absolute privilege is established in behalf of the legislator, not for his own benefit, but with a view to promote the public good, and inasmuch as the houses of Congress and of the State legislatures have the power to punish their members for disorderly behavior and unparliamentary language, a most liberal construction is given to this constitutional provision. “These privileges (the privilege of legislators from arrest and from liability for false statements in speech or debate) are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate, but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature and in the execution of the office; and I would define the article as securing to every member exemption from prosecution for everything said or done by him, as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular and according to the rules of the house, or irregular and against their rules. I do not confine the member to his place in the house, and I am satisfied that there are cases in which he is entitled to this privilege when not within the walls of the representatives’ chamber. He cannot be exercising the functions of his office as the member of a body, unless the body be in existence. The house must be in session to enable him to claim this privilege, and it is in session, notwithstanding occasional adjournments for short intervals for the convenience of its members. If a member, therefore, be out of the chamber, sitting in committee, executing the commission of the house, it appears to me that such a member is within the reason of the article, and ought to be considered within the privilege. The body of which he is a member is in session, and he, as a member of that body, is in fact discharging the duties of his office. He ought, therefore, to be protected from civil or criminal prosecutions for everything said or done by him in the exercise of his functions, as a representative, in debating or assenting to or drafting a report. Neither can I deny the member his privilege when executing the duties of his office, in convention of both houses, although the convention should be holden in the senate chamber.”1 But even to so absolute a privilege as this, there is a limitation. Because a man holds the position of a legislator, the public interests do not require that he be given unlimited license to slander whom he pleases, and to screen himself from a just retribution under his legislative privilege. It is only when he is acting in his official capacity, that he can claim this protection. If, therefore, the slanderous statement has no relevancy to any public business or duty, is not even remotely pertinent to public questions then under discussion, the legislator in his utterance of them subjects himself to civil and criminal liability.2 A similar exemption from responsibility for official utterances is guaranteed to the President of the United States and to the governors of the several States.3

[2]The provision in the United States constitution is, “And for any speech or debate in either house, they (the members of Congress) shall not be questioned in any other place.” U. S. Const. art. I., § 6. It is believed that similar provisions are to be found in every State constitution having reference to members of State legislatures, except those of North Carolina, South Carolina, Mississippi, Texas, California and Nevada. Cooley Const. Lim. *446, note 1.

[1]Coffin v. Coffin, 4 Mass. 1, 27 (3 Am. Dec. 189). The constitutional provision, which was in force when this case arose, was as follows: “The freedom of deliberation, speech and debate in either house, cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatever.”

[2]Coffin v. Coffin, 4 Mass. 1 (3 Am. Dec. 189); State v. Burnham, 9 N. H. 34; Perkins v. Mitchell, 31 Barb. 461.

[3]Cooley on Torts, 214.