States, whether he testifies in the presence of that tribunal, or before any mragistrate or officer (either of the Nation or of the State) designated by act of Congress for the purpose, is accountable for the truth of his testimony to the United States only; and perjury committed in so testifying is an offense against the public justice of the United States, and within the exclusive jurisdietion of the courts of the United States, and cannot therefore be punished in the courts of Virginia." 18

$231. Disqualification of Congressmen to Hold Federal Office.

The second clause of Section VI of Article I of the Constitution provides that: "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."

In pursuance of this provision members of Congress have had their seats declared vacant for accepting commissions as officers of the volunteer and regular army forces of the United States. Visitors to academies, directors and trustees of public federal institutions appointed by law, are not held disqualified. In a House Report on this subject,19 the committee say: "It is not contended that every position held by a member of Congress is an office within the meaning of the Constitution, even though the term office may usually be applied to many of these positions. In United States v. Hartwell (6 Wall. 385; 18 L. ed. 830), it is laid down that an office is a public station or employment conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.' Elsewhere it is held that an office is an employment on behalf of the government, in any station of public trust, nor merely transient, occa

.19 For historical accounts of the manner in which contested elections in Congress have been considered, see Journal of Social Science, 1870, pp. 56, and Political Science Quarterly, XX, 421.

19 55th Cong. 3d Sess. Rpt. No. 2205.

sional or incidental' (20 Johns. Rep. 492). A careful consideration of all the positions above referred to will show that they are merely transient, occasional or incidental in their nature, and none of them possess the elements of duration, tenure or emolument. All of these appointees were but instruments to procure detailed information for the better information and guidance of Congress and are wholly lacking in the essential elements of an office within the meaning of the Constitution."

The House has also held that a contractor under the Federal Government is not constitutionally disqualified as a member.

A state office does not disqualify for membership. Thus, for example, Senator La Follette held the office of Governor of Wisconsin until January, 1906, although the Senate, after his election to that body, met in extra session the preceding March. Senator La Follette did not, however, appear in the Senate or take the oath until January 4, 1906.

Members-elect, it has been held, may defer until the meeting of Congress their choice between their seats and incompatible offices to which they may have been elected or appointed.20

The seat of a member who has accepted an incompatible office may be declared vacant by a majority vote.21

§ 232. Ineligibility of Congressmen to Offices, the Emoluments of Which Have Been Increased.

In 1909 it having been announced that President-Elect Taft intended to nominate Senator Philander C. Knox as Secretary of State, it was pointed out that he was constitutionally ineligible, the salary of the Secretary's office having been increased by a law passed while Knox was a Senator. In order to render Senator Knox eligible to the Secretaryship an act was passed by Congress reducing the salary in question to that which it had been before the increase mentioned. The strict constitutionality of this action by Congress was questioned by many,22

20 Hinds, § 492.

21 Hinds, $504.

22 In a minority report from a House Committee (House Rpt., No. 2155, 60th Cong., 2d Sess.) it is said: "We do not believe that a provision of the

§ 233. Privileges of Members of Congress.

The first clause of the sixth section of Article I of the Constitution provides: "The Senators and Representatives 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."

The exemption from arrest thus given is now of little importance as arrest of the person is now almost never authorized except for crimes which fall within the classes exempt from the privi lege. The words "treason, felony and breach of the peace been construed to mean all indictable crimes.23

24

have

Having decided in Kilbourn v. Thompson that the investigation, in aid of which Kilbourn's testimony had been demanded, was in reference to a matter concerning which Congress had not the power to legislate, and that, therefore, the order for Kilbourn's Constitution that is so clear and emphatic should be sought to be annulled or suspended in the manner attempted by the passage of this bill. The emoluments of the Secretary of State were increased by the Fifty-ninth Congress. The occupant of that office has been regularly receiving these emoluments. We believe that the mischief undertaken to be provided against by this provision of the Constitution clearly embraces the act of appointing one of the said United States Senators to the office of the Secretary of State. It might be said, and truly, that this mischief is remote in any event; however this may be, it contained sufficient danger for the framers of the Constitution to provide against it. If the Constitution prohibits it, surely it can not be argued that if this prohibition can be so easily overcome by the device of reducing the salary below what in the judgment of the Congress it should be, with the hope which in this case is almost a certainty, of the salary being restored to its present amount, that that would not be clear evasion of the plain provision of the Constitution. The office of the Secretary of State will be probably held for eight years by its next incumbent, and a designing Senator, which the Constitution seeks to provide against, could reasonably anticipate, that although his salary would be temporarily reduced in the closing years of his senatorial term, at the expiration of that term it would, through his influence, be restored to the amount to which it was placed by the Congress of which he was a member, and thus he would receive the higher salary from at least two to probably eight years."

23 Williamson v. United States, 207 U. S. 425; 28 Sup. Ct. Rep. 163; 52 L. ed. 278; Hinds, Precedents of the House of Representatives, § 2673. 24 103 U. S. 168; 26 L. ed. 377.

imprisonment had been void for want of jurisdiction, the court go on to consider the personal liability of the individual members voting for and participating in the commitment for contempt. Having pointed out that these individual members had undoubtedly, by their speeches, reports and notes, approved and authorized the imprisonment of Kilbourn, and having quoted the constitutional clause with reference to the exemption of members of Congress from arrest, and from being questioned as to any speech or debate, the court ask: "Is what the defendants did in the matter in hand covered by this provision? Is a resolution offered by a member, speech or debate, within the meaning of the clause? Does its protection extend to the report which they made to the House, of Kilbourn's delinquency? To the expression of opinion that he was in contempt of the authority of the House? To their vote in favor of the resolution under which he was imprisoned? If these questions be answered in the affirmative, they cannot be brought in question for their action in a court of justice or in any other place. And yet if a report, or a resolution, or a vote, is not speech or debate, of what value is the constitutional protection? We may perhaps find some aid in ascertaining the meaning of this provision, if we can find out its source, and fortunately in this there is no difficulty. For while the framers of the Constitution did not adopt the lex et consuetudo of the English Parliament as a whole, they did incorporate such parts of it, and with it such privileges of Parliament, as they thought proper to be applied to the two Houses of Congress."

After reviewing the English case of Stockdale v. Hansard, and the early Massachusetts case of Coffin v. Coffin25 and the dictum of Story in his Commentaries (§ 866) the court say: "It seems to us that the views expressed in the authorities we have cited are sound and are applicable to this case. It would be a narrow view of the constitutional provision to limit it to words spoken in debate. The reason of the rule is as forcible in its application to written reports presented in that body by its committees,

25 4 Mass. 1.

to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting, whether it is done vocally or by passing between the tellers. In short, to things generally done in a session of the House by one of its members in relation to the business before it. It is not necessary to decide here that there may not be things done, in the one House or the other, of an extraordinary character, for which the members who take part in the act may be held legally responsible. If we could suppose the members of these bodies so far to forget their high functions and the noble instrument under which they act as to imitate the Long Parliament in the execution of the Chief Magistrate of the Nation, or to follow the example of the French Assembly in assuming the function of a court for capital punishment, we are not prepared to say that such an utter perversion of their powers to a criminal purpose would be screened from punishment by the constitutional provision for freedom of debate. In this, as in other matters which have been pressed on our attention, we prefer to decide only what is necessary to the case in hand, and we think the plea set up by those of the defendants who were members of the House is a good defense."

23

As regards the freedom of the members of Congress from prosecution for words spoken in either House, no comment is needed, except to observe that this privilege does not extend to the outside publication by a member of libelous matter spoken in Congress. As Story observes: "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." 27

It may further be observed that the constitutional immunity extends to witnesses appearing before committees of Congress, and, probably, to petitions, and other addresses to that body.28

26 King v. Creery, 1 Maule & Selw. 273.

27 Commentaries, § 863.

28 See Columbia Law Rev. Feb. 1910, the excellent paper of Mr. Van Vechten Veeder, entitled "Absolute Immunity in Defamation: Legislative and Executive Proceedings."