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the conduct of public affairs. It may call witnesses to its bar, or it may appoint an investigating committee, giving to it power to send for persons and papers. For many years both Houses of Congress had been in the habit of punishing witnesses for contempt who refused to answer questions put to them on such investigations, sometimes even sending them to jail. In the celebrated case of Kilbourn v. Thompson,1 the Supreme Court held that, although the House of Representatives can punish its own members for disorderly conduct, or for failure to attend its sessions, can decide cases of contested elections, determine the qualifications of its members, exercise the sole power of impeachment of officers of the Government, and may, when the examination of witnesses is necessary to the performance of these duties, fine or imprison a contumacious witnessthere is not in the Constitution of the United States any general power in either House to punish for contempt. Neither House has authority to extend such an inquiry into the private affairs of the citizen. Kilbourn had been committed to jail by the House of Representatives for refusing to answer questions addressed to him relating to his private business. The decision referred to was rendered in habeas corpus proceedings which gave him his liberty.

1 103 U. S. Reports, 168.

CHAPTER XXIII.

RIGHTS OF SENATORS AND REPRESENTATIVES.

ARTICLE I.

Section 6, Clause 1.-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.

324. Members of Congress to be Paid.-Members of Parliament receive no compensation whatever. The two main objections to such a practice are, that the state has no more right to demand the services of citizens than to demand their property, without a just compensation, and that it tends to exclude poor men from the legislature. Hence the Federal Convention agreed that members of Congress should be paid. Still, it was urged by some distinguished members, as General Pinckney and Dr. Franklin, that Senators, since they would represent the wealth of the country, should be denied compensation, and such a proposition received the votes of five States.

325. National Payment.- A question much more earnestly contested was, how payment should be made. Some members contended that the members of the new Congress, like the members of the old one, and especially Senators, should be paid by the States. Men tended to divide on this question as they divided on the question of the nature of the government to be constituted. The arguments of

those who contended for National payment were, that it was unjust to ask the States to pay for services rendered to the Nation; that the several States would compensate their members at different rates, thus begetting jealousy and heart-burning; and that some of the States might make the pay so low as to substitute for the question, "Who is most fit to be chosen?" "Who is most willing to serve?" Furthermore, Mr. Madison said State payment would prevent that very stability in the Government which they were seeking to gain; Senators would become the mere agents of State interests and views, instead of being impartial guardians of the public good. Mr. Hamilton presented the same argument in the tersest form: 'Those who pay are the masters of those who are paid." These arguments were decisive of the source of payment.

326. Compensation Left to Congress.-Still another question was, whether the amount of the compensation should be fixed in the Constitution or be left to Congress. On the one hand, it was urged that the pay would need to be changed from time to time, and that it would be difficult or impossible to amend the Constitution; and on the other hand, that Congress would be likely to abuse the power. It was also proposed that Congress should fix the compensation only once in twelve years. The matter was finally left to the law-making power.1

327. Retroactive Compensation.-Each Congress has absolute power over its own pay, subject to the Presidential veto. In every case of change, no matter when made, it has had effect from the beginning of the Congress making it. In other words, every law has been retroactive. The law of March 16, 1816, reached back to March 4, 1815; the law of August 16, 1856, to March 4, 1855; the law of March 3, 1873, to March 4, 1871, or two full years. The laws of 1816 and 1873 provoked severe criticism throughout the country. It was the popular opinion that the increased compensation was excessive; and

1 This Amendment, which failed to secure the requisite number of ratifications, was the second one to be proposed in 1789: "No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened."

that the retroactive feature, although constitutional, was improper and incompatible with the character of Congress. In both cases the ensuing Congress hastened to repeal the obnoxious legislation.1

328. Exemption from Arrest.-The exemption of Senators and Representatives from arrest, to the extent defined, is necessary to the proper representation of the people and to the independence of Congress. If a member of either House could be arrested and detained on any charge for which the common citizen is liable to arrest, his constituents might be deprived of his services. But manifestly this exemption should not cover the grave offenses enumerated: treason, bribery, and breach of the peace. The exemption does not extend to vacations between sessions; but a member happening to be in custody must be discharged, save in the enumerated cases, in time to allow him to reach the Capital at the opening of a session.

329. Not to be Questioned.-The clause "they shall not be questioned in any other place," means they shall not be held responsible out of Congress for words spoken in Congress. This rule is as essential to freedom of debate as the former one is to the freedom of representation. However, just how far this privilege extends is doubtful. In England it does not extend to a speech made in Parliament and published by its author, and a member may be prose

1 The following table exhibits the compensation of members of Congress at different times:

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Except in the period 1815-1817, members have always received mileage. Down to 1815 it was $6.00 for every twenty miles of necessary travel, going to and returning from the Capital. From 1817 to 1865 it was $8.00 for every twenty miles of such travel. From 1865 to 1871 it was only twenty cents a mile. In 1871-73 it was the actual expenses of travel. Since 1873 it has been the same as from 1865 to 1871. The Speaker of the House and the President pro tempore of the Senate receive each $8.000.00 a year. For the single year 1795, Senators received one dollar per

diem more than Representatives.

cuted for libelous matter contained in such speech. Judge Cooley thinks that, in this country, where all debates in Congress are published by law, the privilege must also cover the publication.' The rule is confined strictly to what is said in the House or in committee, in the discharge of legislative duty; the words "speech or debate" cover whatever is said or done in the transaction of public busi

ness.

Section 6, Clause 2.--No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States which shall have been created, or the emoluments whereof shall have been increased during such time; and no person holding any office under the United States shall be a member of either House during his continuance in office.

330. Reason of the Rule.-The President is often interested in seeing certain measures become laws; and if he had the power to make such appointments as are here forbidden, he might make them, or promise to make them, for the purpose of inducing members to vote for such measures. Further, he might aid in creating new offices, or in increasing the salaries of old ones, for the sake of corrupting members with them. The clause tends to prevent bargains and understandings between the Executive and members of Congress, and so to keep the two branches practically separate and distinct. At the same time, a Senator or Representative may, immediately on the expiration of the term for which he was elected, receive such an appointment; or he may, while serving, be appointed to an office created before his election, if he resigns his seat.

NOTE.-What is sometimes called Cabinet government prevails in England and in some other countries. The leading members of the English Ministry sit in one or the other of the Houses of Parliament. The Premier is either a prominent Lord or Commoner, and for the time the leader of his political party. The Legislative and Executive branches are intimately connected; the Ministry takes the initiative in the most important legislation, and is for the time clothed with, and is responsible for, the exercise of the powers of the Crown. The Ministry is popularly called the Government, and also the Administration. No Ministry can

1 Constitutional Limitations, p. 594.

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