Parliamentary privilege, a term originating in England, refers to a bundle of rights that Parliament and every American legislature claimed and exercised. Article I of the Constitution safeguards several of these rights, including the right of the house of representatives to choose its speaker, the right of each house to judge the elections and qualifications of members, the right of the houses to determine their own rules of procedure, and the rights of members to be free from arrest while performing their duties and to enjoy freedom of speech in carrying out their duties. (See speech or debate clause.) In addition, parliamentary privilege included the right, which derived from the judicial authority of Parliament, to punish for contempt.
The power to punish for contempt in both England and America proved to be incompatible with freedom of speech for critics of government, especially of the legislature. In colonial America the most suppressive body was the popularly elected assembly, which in effect enforced the law of seditious libel by punishing contempts or breaches of parliamentary privilege. An assembly, needing no grand jury to indict and no petit jury to convict, could summon, interrogate, and fix criminal penalties against anyone who had written, spoken, or printed words tending to impeach the assembly's conduct, question its authority, derogate from its honor, affront its dignity, or defame its members.
The practice of punishing seditious scandals or contempts against the government began in America with the first assembly that met in Virginia and continued well after the adoption of the Constitution. In 1796, for example, the New York Assembly jailed a lawyer for his offensive publications, and in 1800 the United States senate found a Jeffersonian editor guilty of a "high breach of privileges" because of his seditious libels. As late as 1874 the Texas legislature, having expelled a hostile journalist, ordered his imprisonment for violating its order. The Supreme Court has held that the House of Representatives has the implied power to punish for contempt. Theoretically Congress still retains that power; in practice Congress refers its charges to a federal prosecutor who seeks a grand jury indictment.
(See legislative contempt power.)
Leonard W. Levy
Clarke, Mary Patterson (1943) 1971 Parliamentary Privilege in the American Colonies. New York: Da Capo Press.
Wittke, Carl (1921) 1970 The History of English Parliamentary Privilege. New York: Da Capo Press.