Privilege from Arrest

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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.

In Article I, Section 6, Clause 1, the Framers provided for Members of Congress to be free from arrest when attending or traveling to and from Congress except in cases of treason, felony, or breaches of the peace.1 In interpreting this provision, the Supreme Court has held that the phrase “treason, felony, and breach of the peace” encompasses all criminal offenses.2 Consequently, Members are only privileged from arrests arising from civil suits, which were common in America at the time the Constitution was ratified.3

In providing for Members to “be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same,” 4 the Framers followed English parliamentary and colonial practices as well as precedent established by the Articles of Confederation. The Articles provided that “the members of Congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from, and attendance on, Congress, except for treason, felony or breach of the peace.” 5 In his Commentaries on the Constitution of the United States, Justice Joseph Story discussed the practice of privileging members of Parliament and colonial legislatures from arrest,6 reasoning that privilege from arrest reflected the “superior duties” of members of legislative bodies to the legislative process and the representation of their constituents.7 Justice Story stated:

When a representative is withdrawn from his seat by a summons, the people whom he represents, lose their voice in debate and vote, as they do in his voluntary absence. When a senator is withdrawn by summons, his state loses half its voice in debate and vote, as it does in his voluntary absence. The enormous disparity of the evil admits of no comparison. The privilege, indeed, is deemed not merely the privilege of the member, or his constituents, but the privilege of the house also.8

Whether the provision in Article I, Section 6, excluding “Treason, Felony, and Breach of the Peace” offenses from the privilege from arrest applied to all criminal offenses or only criminal offenses involving violence and public disturbance has been subject to debate. After examining the historical meaning of the provision, the Supreme Court in Williamson v. United States, concluded that the qualifying language encompassed all criminal offenses. The Williamson Court adopted the government’s position, which was summarized by the Court as follows:

[T]he words “breach of the peace” should not be narrowly construed, but should be held to embrace substantially all crimes, and therefore as in effect confining the parliamentary privilege exclusively to arrests in civil cases. And this is based not merely upon the ordinary acceptation of the meaning of the words, but upon the contention that the words “treason, felony, and breach of the peace,” as applied to parliamentary privilege, were commonly used in England prior to the Revolution, and were there well understood as excluding from the parliamentary privilege all arrests and prosecutions for criminal offenses; in other words, as confining the privilege alone to arrests in civil cases, the deduction being that when the framers of the Constitution adopted the phrase in question they necessarily must be held to have intended that it should receive its well-understood and accepted meaning.9

Consequently, under Supreme Court precedent, the privilege from arrest applies only to civil cases.10 As one commentator has noted: “In practice, since the abolition of imprisonment for debt, this particular clause has lost most of its importance.” 11

While the privilege prevents Members from being arrested in civil suits, it does not prevent them from being served with subpoenas. In United States v. Cooper, Thomas Cooper, a newspaper publisher, was indicted under the Sedition Act of 1798 for libeling President John Adams. Cooper sought to compel several members of Congress to testify as witnesses at his trial. In allowing Cooper to subpoena Members of Congress, Justice Samuel Chase, in a Circuit Court decision, stated: “I do not know of any privilege to exempt members of congress from the service, or the obligations of a subpoena . . . .” 12 Over a hundred years later, Justice Louis Brandeis reached a similar conclusion in Long v. Ansell, holding that the privilege from arrest was limited to arrests in civil cases and did not encompass service of process. Writing for the Court, Justice Brandeis stated: “History confirms the conclusion that the immunity is limited to arrest.” 13

1: U.S. Const. art. I, § 6, cl. 1.
2: Williamson v. United States, 207 U.S. 425, 446 (1908).
3: Long v. Ansell, 293 U.S. 76, 82 (1934) (citing Williamson, 207 U.S. 425).
4: U.S. Const. art. I, § 6, cl. 1.
5: Articles of Confederation of 1781, art. V. See Williamson, 207 U.S. 425. See also Bolton v. Martin, 1 U.S. (1 Dall.) 296, 316 (1788) (recognizing the privilege as covering members of the Pennsylvania Convention on ratifying the Constitution and noting that members “ought not to be diverted from the public business by law-suits, brought against them during the sitting of the House; which, though not attended with the arrest of their persons, might yet oblige them to attend to those law-suits, and to bring witnesses from a distant county, to a place whither they came, perhaps solely, on account of that public business.” ); Geyer’s Lessee v. Irwin, 4 U.S. (4 Dall.) 92, 92 (1790) ( “A member of the general assembly is, undoubtedly, privileged from arrest, summons, citation, or other civil process, during his attendance on the public business confided to him. And we think, that upon principle, his suits cannot be forced to a trial and decision, while session of the legislature continues.” ); Joseph Story, Commentaries on the Constitution of the United States § 856 (1833); 1 William Blackstone, Commentaries on the Laws of England 160–61 (1765) ( “Neither can any member of either house be arrested and taken into custody, nor served with any process of the courts of law . . . . These privileges however, which derogate from the common law, being only indulged to prevent the member’s being diverted from the public business, endure no longer than the session of parliament, save only as to the freedom of his person: which in a peer is for ever sacred and inviolable, and in a commoner for forty days after every prorogation, and forty days before the next appointed meeting . . . . But this privilege of person does not hold in crimes of such public malignity as treason, felony, or breach of the peace; or rather perhaps in such crimes for which surety of the peace may be required.” ).
6: Joseph Story, Commentaries on the Constitution of the United States § 856 (1833).
7: Id. at § 857.
8: Id.
9: Williamson v. United States, 207 U.S. 425, 436 (1908). See also Coxe v. M’Clenachan & Houston, Special Bail, 3 U.S. (3 Dall.) 478, 478 (1798) (noting the privilege applies when Congress is in session).
10: Williamson, 207 U.S 425. See also Gravel v. United States, 408 U.S. 606, 614–15 (1972) (noting that the privilege only applies to arrests in civil cases).
11: Edward S. Corwin, The Constitution and What It Means Today 23 (Harold W. Chase & Craig R. Ducat eds., 1973) (1958).
12: United States v. Cooper, 4 U.S. (4 Dall.) 341, 341 (Chase, Cir. J., Dist. Pa. 1800),
13: Long v. Ansell, 293 U.S. 76, 80 (1934) (holding that Senator Huey P. Long was not exempt from service of civil process). Justice Brandeis further clarified that: “The constitutional privilege here asserted must not be confused with the common-law rule that witnesses, suitors, and their attorneys while in attendance in connection with the conduct of one suit, are immune from service in another. That rule of practice is founded upon the needs of the court, not upon the convenience or preference of the individuals concerned. And the immunity conferred by the court is extended or withheld as judicial necessities require.” Id. (citing Lamb v. Schmitt, 285 U.S. 222 (1932)).