between that which was lawful and that
which was prohibited, as more likely to avoid all doubtful actions....

"The public bodies of the united nation did not at once invite publicity
to their deliberations. The Constitutional Convention of 1787 sat with
closed doors, and although imperfect reports of the debates have since
been published, the injunction of secrecy upon its members was never
removed. The Senate for a time followed this example, and the first open
debate was had in 1793, on the occasion of the controversy over the
right of Mr. Gallatin to a seat in that body. The House of
Representatives sat with open doors from the first, tolerating the
presence of reporters,--over whose admission, however, the Speaker
assumed control,--and refusing in 1796 the pittance of two thousand
dollars for full publication of its debates.

"It must be evident from these historical facts that liberty of the
press, as now understood and enjoyed, is of very recent origin."[130]

Both the original purpose of this parliamentary privilege and its
subsequent abuse not only in England but also in the Colonies, were
facts well known by those who framed the Constitution. There was no King
here, from whose arbitrary acts Congress would need to be protected, but
there was a power which the framers of the Constitution regarded as no
less tyrannical and fully as much to be feared--the power of the people
as represented by the numerical majority. How to guard against this new
species of tyranny was the problem that confronted them. The majority
was just as impatient of restraint, just as eager to brush aside all
opposition as king or aristocracy had ever been in the past. Taking this
view of the matter, it was but natural that they should seek to protect
Congress against the people as Parliament had formerly been protected
against the Crown. For exactly the same reason as we have seen, they
made the judges independent of the people as they had been made
independent of the King in England. In no other way was it possible to
limit the power of the majority.

That this provision concerning freedom of speech and debate in the
legislative body was not regarded as especially important during the
Revolutionary period is shown by its absence from most of the early
state constitutions. When the Federal Constitution was framed only three
of the original states[131] had adopted constitutions containing such a
provision. There was, as a matter of fact,